Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

This evening I want to address the High Court decision of last week invalidating the Australian Military Court. The decision was that the court did not accord with Chapter III of the Australian Constitution. As a consequence, every action taken by this court in the fulfilment of its functions within the new system of military justice is, of course, invalid.

This outcome is many things. Firstly, it is simply a waste of so much effort by so many people over so many years, not to mention the resources spent on what I understand to have been something in excess of 171 cases. Secondly, there has now emerged a huge gap in the military justice system. Offences proven now will remain unpunished; appeals will be redundant. Penalties, I presume, will have to be rescinded. Worst of all, that gap will remain until remedial legislation is brought in—I hope, as a matter of urgency. Thirdly, it is a humiliation for those who argued against the Senate Foreign Affairs, Trade and Defence Legislation Committee, and all its expert witnesses, that the committee was wrong. Those witnesses included no less than the Judge Advocate General and the Law Council of Australia. Above all, however, it is an outcome which has brought flooding back the sheer arrogance of the previous Howard government regime—for whom the Constitution was not to be considered under any circumstances.

I must add that this attitude does not necessarily apply to those senators opposite who, at the end of the day, had to vote at their party’s call. The original report of the committee on military justice, in this respect in particular, was unanimous. After all, the committee had worked hard over a considerable period of time. In the face of the most confronting evidence about the serious shortcomings in the military, its views were not just unanimous but strongly held by all senators—so much so that even today I as chairman can say without contradiction that those views are still strongly held. Indeed, I am sure that they would join me, if they could, in saying to the previous Prime Minister, ‘We told you so.’

For the committee, then and now, this subject was not a matter for political polemics. It was a very serious matter of public policy affecting the welfare of the entire ADF. The circumstances revealed to the committee were in fact so bad that some say that the entire Australian military was disgraced—in particular, the management which allowed such circumstances to prevail for so long. In fact, if we are really serious about making public apologies for social shortcomings of the past, all those whose lives and careers were ruined during their service should get such an apology—not just from the political process which failed to attend to it for so long but also from the military hierarchy, whose attitudes were clearly part of the problem. In fact, I venture to say that the reputation of the military in Australia was for some time damaged by the committee’s findings—and more so than by any other shortcoming or incompetence brought to light during the term of the then Howard government.

The only remaining tragedy is that justice for all those past failings will never be delivered. In some cases, where individuals stuck to their guns, some compensation has been delivered, usually at enormous personal cost. The total number of cases will never be known. Certainly, the committee received an enormous number, of which it could only deal with a few.

I think it is worth reminding the Senate of this background simply because with the passage of time it is so easy to forget. After eight separate reviews and inquires conducted under the aegis of the Howard government, the Senate, through this committee, pulled things together and got accountability for the parliament. For that reason the committee has persisted in its oversight of the implementation of its recommendations. It is therefore quite satisfying that after all this time the committee has been proven 100 per cent correct.

Put simply, the committee’s reforms for military justice in effect comprised the civilianisation of the military justice system. The modern ADF had for a long time been denied a standard of justice available to all other Australians. In the committee’s view, they were entitled to the same. Further, such a system should be completely independent of the chain of command. It should have the same degree of independence as the civil court system. The basis for this belief was clear. The military system of court martial had totally failed. So too had the system of grievances. So too had the structure and functions of the disciplinary tribunal system. So too had the investigatory services. So too had the disciplinary decision-making process. ADF personnel enjoyed few of the democratic rights and protections available to all Australians in the workplace. The committee, having taken so much damning evidence, simply had little confidence that the then extant military was capable of fixing the problem.

The resistance, still voiced by some, is expressed in the name of military discipline. As usual, it was based on the standard supposition that military service is unique. The claim is valid in some cases. However, often it is overstated. The format for the new military court fell victim to this very assertion. The court was established under the Defence Force Discipline Act. It was a ploy to retain the so called court within the ADF sphere of influence. But, as the High Court has now found, it was no court at all. It was simply a ruse, with all the trappings of a court—a make-believe court. It was an attempt to create a court outside Chapter III of the Constitution, exercising judicial authority as if it was a legitimate court. In that way, it could be pretended that the Senate committee’s report had been met in spirit to some extent.

The trouble is that the ruse failed. It was still effectively a military tribunal. The provisions of section 114 of the act made it clear that the AMC was not a court set up under Chapter III. The hope was that no one would challenge the attempt. Certainly it had all the trappings of a court. It was a court of record, it had a seal, and appointments to it were made by the Governor-General—albeit not for life. The High Court also made it clear not only were military judges incorrectly appointed but that the court’s functions did not comply with the requirement that they form part of the judicial system administering the law of the land. Indeed, in addition, as appeals were to a higher tribunal, not a court, it could not be a court. In retrospect, the whole thing has turned out to be a farce.

From the committee’s point of view it must be said that we trusted the advice received supporting the bill. We were led to believe this new court would fulfil the committee’s recommendations, despite the provision of section 114 that it was to be established outside Chapter III. I am afraid that the choice for the committee was to accept the advice or recommend that the bill be denied in toto, which at the time seemed a high price. Perhaps we should have made that recommendation. This has nothing to do with military discipline. A recent report of Justice Street has shown that there are many other matters far more relevant to the efficient operation of military discipline. Much of the effectiveness of military discipline is derived from the detailed operation of administrative processes.

The issue now seems to be one of whether the committee’s original intentions should be respected—which were that a real court be established—or whether we should stay with an in-house tribunal. The evidence before the committee on this matter was overwhelming. This includes the views of High Court judges, whose views on the constitutionality of military tribunals were already on record. I refer those wishing to read those views, to pages 86 to 89 of the June 2005 report of the committee. There, in the case of Re Colonel Aird ex parte Alpert, Justice Kirby spelled out the law most explicitly. Yet this opinion was ignored—as was that of the Law Council of Australia.

Indeed, may I remind the Senate that on page 14 of that October 2006 report those on this side of the chamber recommended that the entire bill be withdrawn and redrafted for this very reason. We said that the court:

... should be created in accordance with Chapter III of the Australian Constitution to ensure its independence and impartiality.

What a pity that we were ignored. What a shame that it has come to this. We are reminded however, of the arrogance of a government so out of touch that it believed it was above the Constitution. It was not. The humiliation is complete.