Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

On behalf of Senator Coonan, I present the 11th report of 2009 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 12 of 2008, dated 16 September 2009.

Ordered that the report be printed.

I move:

That the Senate take note of the document.

I seek leave to incorporate Senator Coonan’s tabling statement in Hansard.

Leave granted.

The statement read as follows—

In tabling the Committee’s Alert Digest No. 12 of 2009 and Eleventh Report of 2009, I would like to draw the Senate’s attention to several provisions in the Military Justice (Interim Measures) Bill (No. 1).

The Committee is, of course, mindful that this bill and the Military Justice (Interim Measures) Bill (No. 2) have passed both Houses of the Parliament, are considered urgent and contain measures which are interim in nature. Nevertheless, the Committee has sought the Minister’s clarification in relation to a number of issues that it considers may adversely impact upon a person’s rights and liberties under the Committee’s first term of reference.

Proposed new section 145A of the Defence Force Discipline Act 1982, to be inserted by item 103 of Schedule 1 of the bill, provides for an accused person to be notified of the convening of a court martial or reference of a charge to a Defence Force magistrate for trial (proposed new subsection 145A(1)); and to be given an opportunity to provide particulars of an alibi (proposed new subsection 145A(2)). Under new subsection 145A(2), an accused person has 14 days to provide the particulars, commencing on the day of the making of the order convening the court martial or the referring of the charge to the Defence Force magistrate. This timeframe can be extended with the leave of the Judge Advocate or Defence Force magistrate.

Proposed new subsection 120(1), to be inserted by item 72 of Schedule 1, provides that the Registrar of Military Justice must, ‘as soon as practicable’ after making an order convening a court martial, cause a copy of that order to be given to the accused person. However, there does not appear to be an obligation on the Registrar to notify the accused of the reference of the charge to a Defence Force magistrate. In addition, there is no explanation as to why the 14 days available to the accused does not run from the date of giving him or her a copy of the order, as opposed to the date of the making of the order.

The Committee considers that new subsections 145A(2) and 120(1) contain serious defects. The Committee is seeking the Minister’s advice on why a statutory obligation has not been imposed on the Registrar to notify the accused of the reference of a charge to a Defence Force magistrate; and why the notice period in new subsection 145A(2) does not run from the time of providing a copy of the order or reference to the accused. The Committee also expresses the strong view that these issues should be given proper consideration when the Federal Government legislates to establish a Chapter III court so that the defects may be remedied.

Another provision which has the potential to impact on a person’s rights and liberties is proposed new subsection 137(1) of Schedule 1. New subsection 137(1) provides that: ‘The Chief of the Defence Force shall if, and to the extent that, the exigencies of service permit, cause an accused person awaiting trial by a court martial or by a Defence Force magistrate to be afforded the opportunity...to be advised before the trial, by a legal officer’. The Committee notes that there is no time limit on when this advice would be provided. This means, for example, that 14 days for the provision of alibi particulars might elapse before legal advice is available to the accused.

The Committee has abiding concerns about how this provision would operate in practice and considers that appropriate safeguards must be in place to protect an accused person’s rights and liberties (for example, in situations where he or she may not be contactable). Further, it is not clear exactly what the phrase ‘the exigencies of service’ would cover. The Committee has asked for the Minister’s advice on precisely what this phrase means and, specifically, whether ‘the exigencies of service’ would include provision of legal advice as soon as possible after the making of an order convening a court martial or the reference of a charge to a Defence Force magistrate.

Finally, proposed new section 36 of the Defence Force Discipline Appeals Act 1955, to be inserted by item 227 of Schedule 1, enables the Defence Force Discipline Appeal Tribunal, when it is hearing an appeal against a conviction or prescribed acquittal by a court martial or a Defence Force magistrate, to obtain reports to assist in the determination of appeals. Section 36 enables the Tribunal to: ‘direct such steps to be taken as are necessary to obtain from the person who was the judge advocate of the court martial or from the Defence Force magistrate, a report giving his or her opinion upon the case, or upon a point arising in the case, or containing a statement as to any facts the ascertainment of which appears to the Tribunal to be material for the purpose of the determination of the appeal’.

The Committee has noted that this gives the Tribunal a broad power and that any failure to comply with the Tribunal’s direction may constitute contempt. It is unclear what the provision is seeking to achieve and the explanatory memorandum does not provide any explanation or context. Accordingly, the Committee has sought the Minister’s advice in relation to the context and background to the provision, the specific reasons for granting such a broad power to the Tribunal, and whether any alternatives were (or might be) considered.

I commend the Committee’s Alert Digest No. 12 of 2009 and Eleventh Report of 2009 to the Senate.

Question agreed to.