Kimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I'm pleased to speak on the Defence Legislation Amendment (Discipline Reform) Bill 2021, which was introduced into the parliament in August and passed the House of Representatives on 1 September. The bill is aimed at reforming the system of military discipline for those who serve in our Defence Force, by improving the way discipline officers and summary authorities operate under the Defence Force Discipline Act 1982. Our military discipline system provides the Australian Defence Force with an Australian legal framework that is able to be applied on operations anywhere in the world. However, the system of discipline in the Australian military has become slow and unresponsive under the weight of administration required to address minor breaches of discipline. Reform is required to modernise our current system that predates modern warfare, technologies and tactical requirements and the way our Defence Force is organised. On this basis, Labor will be supporting this legislation.

To defend Australia and our national interests we must maintain an operationally capable Defence Force that demonstrates high levels of discipline, professionalism, competence and commitment. The women and men who join the Australian Defence Force are subject to military law—in addition to civilian law—which has its own discipline system and capacity to impose punishments and orders under the Defence Force Discipline Act. The act provides a comprehensive system of military discipline that must be trusted by the Australian people—and, most importantly, by those who serve in our Defence Force—to be applied fairly and effectively in all circumstances.

The system of discipline administered by the ADF must encourage the men and women of our Defence Force to be accountable for their actions and, importantly, to learn and grow from their mistakes. Because the people in our Defence Force work and live with one another and within teams, they have a perfectly reasonable expectation that any wrongdoing or breach of discipline will be dealt with quickly and fairly. Failure to do so may put the lives of others at risk, erode morale and adversely affect unit cohesion and fighting capability.

Military service and the need to maintain discipline place constraints and responsibilities on the people of our Defence Force. These challenges are unique and are experienced by few of their fellow Australians. A separate system of military discipline is, therefore, essential to enable the Defence Force to deal with matters that relate directly to its discipline, morale and operational capability. It is in this context of a disciplined fighting force that in some cases breaches of military discipline by the people in our Defence Force are dealt with more severely than would be the case if a civilian engaged in similar conduct.

The military discipline system operates in Australia and overseas in times of peace, conflict and war. Enforcing military discipline is essential at all times, both in training for operations and during conflict in often difficult and dangerous circumstances. Those in the ADF are legally bound to follow all lawful commands, including orders that involve considerable risk to their own life and the lives of others or that require them to use lethal force against an enemy.

The military discipline system administered under the Defence Force Discipline Act has three tiers. At the lowest level is a disciplinary infringement scheme. This enables minor breaches of discipline to be dealt with by the issue of an infringement notice. A person can choose to admit the breach of discipline and be dealt with by a discipline officer, who may impose a low-level punishment, such as a fine or reprimand. This has some similarity to being issued a speeding ticket by the police—you can accept the ticket and pay the fine or you may choose to contest the matter in court.

The second tier is the summary system. This comprises subordinate summary authorities, commanding officers and superior summary authorities. These proceedings are adversarial in nature, with criminal-law-like procedures within the disciplinary infringement scheme, and are not administered by legally trained personnel. At the highest level are superior tribunals. These comprise Defence Force magistrates and restricted and general courts martial, which deal with more serious matters and apply criminal law procedures.

As early as 1989 the Defence Force Discipline Legislation Board of Review, chaired by the Hon. Xavier Connor AO, QC, reviewed the operation of the newly enacted Defence Force Discipline Act on behalf of the parliament. He observed: 'For the most part, service discipline, particularly as administered by summary authorities, has to do with matters which do not contain any element of criminality and which would not constitute an "offence" under civil law. Many of them are of quite a minor nature and probably in more than 90 per cent of these the facts are not in dispute.' These matters referred to by the review board range from actions such as those relating to operations against an enemy force to not attending duty on time to the unauthorised discharge of a weapon to having dirty boots on parade. Discipline lies at the heart of service in any defence force.

In 2005 the Senate committee commenting on change within the Australian Defence Force military discipline system noted:

Military command is in many ways defined by obedience and conformity. Discipline is, along with leadership, a crucial underpinning of command.

In fact, it was the then Labor opposition that initiated this inquiry in 2003 to hear evidence from ADF personnel and their families about the military justice system.

The broader context for this bill is that Australian Defence Force commanders have a duty of care to all people under their command, whether at home in Australia or deployed overseas. The priority is not just about maintaining discipline. Equally important is the welfare of our sailors, soldiers and aviators who serve in the Australian Defence Force. By simplifying the disciplinary processes, the time required to resolve commonly occurring minor breaches of military discipline could be significantly reduced. This would ease the strain on those involved with a disciplinary process.

A 2017 review directed by the Chief of the Defence Force found that aspects of the current system were overly complex and difficult to use. The review found, in particular, that summary discipline matters were taking too long to resolve and adversely impacting the people accused of wrongdoing. Delays in resolving breaches of military discipline also adversely affects the morale and, potentially, the safety of other people. This is particularly so in circumstances where the people in our Defence Force live, work and operate closely together.

The current adversarial court-like summary disciplinary system has not been serving our defence personnel as best it might. Many senior non-commissioned officers and junior officers are reluctant to use it. There has been a lack of confidence in applying and understanding the complex court-like requirements of the adversarial summary proceedings. As a consequence, use of the summary discipline system has been in constant and consistent decline.

The operation of the summary discipline system has proved problematic in recent conflicts and the nature of modern warfare has changed significantly since the act commenced in 1985. Our Defence Force personnel have been deployed in smaller Australian formations, often either as independent units or embedded with our allies, frequently far from administrative support. The complexities of the summary discipline system, particularly given the frequency, nature and length of overseas operations, has often resulted in unacceptable delays in resolving or finalising breaches of military discipline.

Given this feedback, Labor acknowledges that the reforms in this bill would build on and are consistent with the Defence values of service, courage, respect, integrity and excellence. But we question why it has taken four years to bring the bill on. The reforms will provide Australian Defence Force commanders and the men and women who serve under their command with a system of discipline that allows for minor breaches of discipline to be dealt with quickly and fairly. We note more serious offending would continue to be dealt with by a superior military tribunal or referred to civilian authorities as appropriate.

The bill will reform the discipline system in three ways. Schedule 1 will expand the operation of the highly regarded and effective disciplinary infringement scheme. The changes will allow a greater range of minor breaches of military discipline to be dealt with more quickly and fairly and with less formality within the disciplinary infringement scheme, rather than by the more complex and adversarial service tribunal processes. This bill introduces a new senior discipline officer position, creating a two-tier disciplinary infringement scheme. Labor welcomes additional safeguards included in the bill to ensure the scheme continues to be operated fairly. In particular, this reform to military discipline preserves the right of anyone facing a disciplinary infringement to make an informed decision, whether to choose to have their matter dealt with under the disciplinary infringement scheme and appear before a discipline officer or a senior discipline officer in a non-adversarial process.

Schedule 2 would modernise the discipline system structure. It reduces its complexity by removing the subordinate summary authority. It would realign the rank and punishment jurisdiction of summary authorities, ensuring a logical progression in terms of the rank of the accused person, the seriousness of the breach of military discipline, the level of punishment that may be imposed and the seniority of the summary authority.

Schedule 3 would further reform the military discipline system by introducing several new service offences. These relate to cyberbullying, receipt of a benefit or allowance and failure to perform a duty or activity.

Cyberbullying conduct is corrosive to discipline and can have an extremely adverse effect on the mental wellbeing of its victims. The new cyberbullying service offence would send a very strong message to those in our Defence Force that the use of social media to cyberbully another person is unacceptable and will not be tolerated in the ADF. The intention of this new service offence is to enable Defence to protect victims of cyberbullying through early intervention and by putting a stop to the cyberbullying behaviour before it gets out of hand. It would protect the people who choose to serve in our Defence Force.

Current safeguards for persons accused of breaching military discipline will remain. Crucially, under the disciplinary infringement scheme, a person must choose to be dealt with by a discipline officer or senior discipline officer. Additional safeguards included in the bill are: the requirement for any reasonable excuse to be considered before issuing a disciplinary infringement notice; the ability of a discipline officer or senior discipline officer to dismiss an infringement if the officer considers the person has a reasonable excuse for committing the infringement; punishments imposed by a senior discipline officer must be reviewed by a commanding officer. On review, a commanding officer will have the power to confirm a punishment decision; substitute a punishment decision with a reduced punishment; or decide that no punishment be imposed, or that the discipline infringement be dismissed with no punishment imposed.

On the surface, these proposed changes would appear to have a positive effect on improving the administration of discipline for all those who serve in our Defence Force. However, it was not clear to us whether the changes were strictly necessary and there had been little consultation with legal experts in the wider defence community prior to the introduction of the bill. At the same time, it is important to ensure that we get the balance right between administrative efficiency on the one hand and fairness, the preservation of legal rights and access to justice for ADF members on the other. In particular, the minister had not provided a compelling explanation or any concrete evidence as to how exactly the amendments in the bill would enhance the ADF's operational effectiveness. In addition, Labor was concerned that, under the proposed changes, ADF members would have to choose to be dealt with under the infringement scheme. Further, the adversarial procedures, simplified rules of evidence and Criminal Code Act 1995 provisions that apply to summary authority proceedings will not apply to the new disciplinary infringement scheme. Labor's view was that any changes should not remove rights and should be broadly consistent with what applies at the upper levels of the military justice system and in civilian courts.

We do not want to stand in the way of genuine reform. However, we want to ensure that the military justice system competently balances the following twin objectives. First, it must ensure that the ADF's operational needs for effective and efficient discipline are met. Second, it must uphold objective and independent standards of justice that the public has confidence in and that protect the rights of ADF personnel and ensure fair treatment.

These are the principles that would guide an Albanese Labor government and we would look to continue the process of reform to ensure military justice is fair and effective. Labor agreed to support the bill in the House but refer it to a Senate inquiry and to reserve our final position in the Senate subject to that. To that end, Labor moved to refer the bill to the Foreign Affairs, Defence and Trade Legislation Committee for an inquiry to ensure proper scrutiny and stakeholder consultation and to help clarify the consequences of the amendment.

The committee introduced a short inquiry on the papers and this provided an opportunity for defence community stakeholders, like the Australian Defence Association, the Defence Force Welfare Association and legal experts, like the ANU Centre for Military Security and Law, to examine and comment on the bill. Submissions to the inquiry were very supportive of the bill. Most stakeholders supported removing the subordinate summary authority and expanding the disciplinary infringement scheme to improve its effectiveness to deal with minor breaches of discipline. This should allow for early intervention and reduce delays thereby improving operational effectiveness. Submitters also broadly endorsed the proposed restructure of summary authorities to realign the jurisdiction of discipline officers and summary authorities in terms of the types of breach, rank of individual and available punishments. Most also agreed with the introduction of new service offences to better manage breaches of discipline in the modern ADF.

We note some submissions raised concerns about aspects of the proposed reform of the disciplinary infringement scheme and the new service offences, notably the new cyberbullying offence. However, the committee was satisfied with the need for this offence and the protections available for ADF members dealt with under the offence.

The committee reported back on 14 October recommending the bill be passed without amendment. Based on the committee's recommendation, on balance, Labor will now be supporting the bill in the Senate in its current form. We note that some submitters to the inquiry suggested that changes may need to be reviewed down the track to see if they're operating as intended and that the advantages outweigh the disadvantages. We think that this is a sensible proposal. In addition, as some submitters noted, the Royal Commission into Defence and Veteran Suicide is likely to examine the role of the military justice system and issues of abuse, mistreatment and bullying in the ADF. So it's possible that further reforms to the military justice system may be required in the near future, based on its findings and recommendations. (Time expired)

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

[by video link] As I speak about the Defence Legislation Amendment (Discipline Reform) Bill 2021, as the spokesperson for the Greens on matters in relation to peace and veterans' affairs, I would like to acknowledge that the context in which we have met as a chamber this week has been one in which there is now an operating royal commission investigating matters relating to Defence Force suicide. I'd like to pay tribute to the many campaigners, family members and advocates who have fought for so long to achieve this vital opportunity for justice in the face of much resistance and dismissal, particularly from the current government. I can't help but reflect upon the fact that this is at least the second royal commission, if we include the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, that this government has been dragged to implement and action, kicking and screaming, by the relevant community.

Given that context, I'd like to make a couple of key observations in relation to the bill. I want to put on the record clearly that the Greens cannot support the proposed reforms to the Defence discipline system at this time. The Royal Commission into Defence and Veteran Suicide has only just started, and its public hearings and examination of evidence have only just got underway. We note that the disciplinary system will be under intensive investigation and scrutiny, which is exactly the right thing to do. It is our view that any reforms proposed should be considered in the light of evidence and recommendations that come from the community and the commission through this process. Whilst we understand that the intention of this reform is to simplify the operation of aspects of the disciplinary system, we are concerned that, on balance, this may serve to exacerbate existing cultural and structural issues that we know cause considerable harm to serving personnel, including, but not limited to, bullying, gender-based violence and bastardisation.

We have significant reservations about the proposed expansion of the disciplinary infringement scheme. As stated by GAP Veteran & Legal Services in its submission to the inquiry on the bill:

Reforming the operation of the scheme is not, of itself, accomplished by merely expanding its application such that it can be 'used in more situations'. In light of the fact that, in accepting the jurisdiction of the scheme as opposed to being dealt with by a tribunal process inclusive of representation by a lay defending officer, the member is, in essence, pleading guilty to the offence, greater safeguards are required to prevent or limit abuse of the process.

We note with concern that the proposed legislation expands the types of offences that the scheme deals with: anything from turning up late to work to behaving abusively towards colleagues is captured in this scheme. We're concerned that the scope of offences doesn't amount to just minor service discipline matters, as suggested by the explanatory memorandum. These concerns are exacerbated by a lack of clarity on what happens should a servicemember become a repeat offender. Do they continue to get away with minor disciplinary actions when, in reality, their behaviour warrants more severe consequences? This is one of the key outstanding questions.

Our view is that the application of the rule of law and access to justice may not be achieved by expanding the scheme in this way. Further, we accept evidence from the authors of the GAP submission that the disciplinary infringement scheme has been improperly used and weaponised by ineffective chains of command—specifically, that this scheme and its structure enable more senior members of command to exercise their authority unfairly and to issue infringements as a way of asserting improper power over more-junior members.

We also note that a key safeguarding mechanism that is meant to counterbalance the abovementioned issues—the Inspector-General of the Australian Defence Force—is subject to considerable criticism and is likely to form part of a lot of the evidence to the royal commission itself. This again highlights the need to delay consideration of this legislation until the effectiveness of this oversight body in upholding the rights and responsibilities of the ADF and its serving members is better understood.

As is the case in many other areas of law, the Greens are concerned that the reliance on delegated legislation—in this instance, empowering the CDF to make rules in relation to the use or discretion of disciplinary infringement records—diminishes the role of parliamentary scrutiny and of parliamentary oversight. As was made clear in submissions to the inquiry, there is a great need to ensure the application of the disciplinary infringement system: that it is operating effectively and that its application is one which does not leave the CDF without limits on transparency and accountability. To this end, we note and support the concerns raised by the Senate Standing Committee for the Scrutiny of Bills. It has stated in its digest that the committee has raised concerns about the proposed section 9FA and section 42 under the relevant sections of the bill. That makes particular mention of these concerns.

Notwithstanding the details of the bill, the Greens would like to put on record that, in principle, defence being empowered to investigate itself and its personnel without sufficient safeguards and accountability to civilian authorities is a cause for significant concern. The proper and fair application of the law and the justice system is essential and goes to the very heart and integrity of a functioning ADF. We hear the concerns of serving and ex-serving personnel who have experienced significant systemic violence and injustice through the defence disciplinary system, and we are very alive to the reality that this system may not work as intended.

In summary, we have a number of principled and substantive concerns with respect to the proposed changes to the disciplinary system and the ways in which they will work in practice. In our view, these proposed changes carry the potential of serious unintended consequences that must be considered fully, particularly in the light of the current royal commission, which will gather evidence on the systems and culture that underlie the ADF and its functions. We note and acknowledge that this bill is proposing a number of important updates to the nature of offences to be considered as offences by the disciplinary system, particularly cyberbullying, but we think the application of these provisions and the consequences they carry must be further assessed before they are implemented. For those reasons, we will be opposing the bill, alongside Senator Lambie.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The Defence Legislation Amendment (Discipline Reform) Bill 2021 improves the management of disciplinary issues in the Australian Defence Force. The reform measures will result in a military discipline system that is easier to understand and use. This will reduce unnecessary delays, while being fair to all those involved, and allow commanders to more simply and quickly address poor behaviour and create opportunity for early intervention to better support the people in our Defence Force to continue as positive contributors to their service.

The majority of breaches covered by the act are of a uniquely military nature. They range from offences relating to operations against an enemy to being late for work. Serious criminal offences or other illegal conduct are usually referred to civilian authorities, such as the police. It is critical that breaches of discipline are resolved quickly and fairly to maintain morale and ensure good order and fighting capability. We need to maintain an operationally capable Defence Force with the highest levels of professional competence, commitment and discipline, both on and off duty.

The bill will reform the military discipline system, in particular the lower-level summary system and disciplinary infringement scheme. This will make it easier to use when dealing with minor discipline matters, particularly when deployed on operations. It will do this in three ways. Firstly, it will build on what is working well—the disciplinary infringement scheme—by enabling a wider range of minor breaches of military discipline to be managed quickly and simply as disciplinary infringements rather than service offences, where complex, adversarial, court-like procedures apply. Secondly, it will provide a better-structured discipline hierarchy based on the seriousness of the offending, available punishments, rank of the individual and seniority of the discipline authority. Thirdly and finally, the changes introduce several new service offences relevant to the modern ADF. Those new service offences include cyberbullying, and the related offence of failure to comply with a removal order concerning cyberbullying material; failing to perform a duty or an activity; and failing to notify a change in circumstances when in receipt of a benefit or entitlement. The changes will build on the very successful and highly regarded disciplinary infringement scheme.

Many senior non-commissioned officers and junior officers had little confidence in using the summary discipline system because of its complexity. Its use has been in constant and consistent decline, from 1,743 summary trials in 2009 to just about half of that, 923, in 2019. The people in our Defence Force live, work and fight alongside each other. Delays in dealing with discipline matters erode morale and impact mental wellbeing. Delays can also affect the careers of our people, beyond the intended discipline action. This is because leave, attendance at courses, and promotional prospects are often on hold until a discipline matter is finalised. This places undue stress on all involved.

Having had the pleasure of chairing this inquiry, I commend the explanatory memorandum, the minister's second reading speech and the bill to the Senate.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I don't support the Defence Legislation Amendment (Discipline Reform) Bill 2021. It's a shame that we couldn't have had all those diggers come forward and listen to what sort of legal system we have in our Defence Force. I can tell you: it's not a legal system; it's a bastardised abuse system, and that is half the reason that we are losing diggers to suicide. This is absolute abuse. The DFDA, and the power it gives those officers out there, does nothing but give the power to abuse diggers. We have a royal commission for this. I thought this was the whole point of hitting veteran suicide. The royal commission is going to go in and examine what is going on in our defence forces, and I can tell you now: you are going to see a lot of abuse matters coming up and a lot of cover-up. It's still going through the Royal Military College. Four females who have been through there in the last five years came forward to me yesterday in tears, saying, 'We've been raped and abused.' I've now sent them to a lawyer so they can get their submissions ready to go to the royal commissioner. That is where we are at.

The Defence Force Discipline Act does enormous damage to serving members, and that's the reality. It is used to bully people. People are getting charged for things they never did, and they're too scared to take it to a tribunal because they know, as I do, their careers are over; it is finished for them. Not only will they get discharged; it'll say, 'Administrative discharge; see you later.' Imagine trying to get a job once you say: 'I was wronged in the military. I was accused of doing this, but I actually didn't do it.' Imagine trying to explain that to an employer. It ruins a digger's life.

I wish you would not do this today, because what you are doing here is making the situation worse. You are giving more control to the people who are doing the bullying and the bastardisation. I'd love to see you give that sort of load to the diggers. I tell you what: there's some karma to come at those high-ranking officers. When someone has an injury and they're looking like they could get a medical discharge, it is not uncommon to see them getting picked up for things they should never get charged for. All of a sudden they end up fired up with, like I said, an admin discharge. There's no medical discharge for the abuse that they've had to go through in this process. This Defence Force Discipline Act—she's been gone for a long time. I'll get into some more stories, very shortly, about when I was serving and what's being been going on since then.

This bill won't fix it. In fact, it will actually make things worse. You will see more suicides because you're just giving more control to the abusers. All these new offences will do is open it up to more abuse. Take the new offence 'failure to perform a duty'. It's a strict liability offence, which means it doesn't matter if someone had a good reason for failing to carry out their duty. The punishment is dismissal from the Defence Force. If you're too sick to do what you're told, or if you're injured, or if you're given an order that you can't possibly comply with, you could get the boot from the Defence Force through no fault of your own.

Let's use an example that's been going on at 7RAR, which I brought up last year and again this year, with Lieutenant Colonel Gower. There were diggers over there that were on a medical chit to say that they were so psychologically damaged that there was no way should they have a weapon in their hands, let alone go to a range practice. Do you know what that little bugger did? That little bugger made them sign waivers. When I reported that to the very top of our Defence Force, do you know what they did—

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

Senator, a point of order?

Perin Davey (NSW, National Party) Share this | Link to this | Hansard source

The language that was used was not appropriate parliamentary language.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Lambie, I just ask you to reflect on your language. Please proceed.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Do you know what happened to that Lieutenant Colonel? I'll tell you what happened. He got scurried out in the middle of the night. Three months later he showed up and he was promoted to colonel. What's new? Who's being done over here? That's what's going on. The power imbalances are terribly wrong in the ADF, and that's a recipe for disaster. I can assure you that this thing is only going to make it worse.

I served in the military police. We all know that. I'm going to tell you some little stories about that today while I have the time. I'm going to tell you how well we are trained out there. They'd been promising—certainly since I was in there—that they were going to train us up to the level of expertise so that when we walked out we were pretty much trained like civilian police. We are trained to take a simple statement, how to use a speed camera and pretty much how to warn people if they haven't got a beret on. That's what the taxpayer pays for, for the eight or nine weeks we were sitting there. That's what you train us with. It is getting that bad in there right now that you have investigations going on where you're not even using the military police. They're not even using the military police, with the little bit of expertise that they have, to do those written statements of fact to be used as evidence for any court proceedings that are going on. They're using what they call 'fact-finds.' You'll hear about these fact-finds from the royal commission. I imagine it won't take the royal commission long before they say, 'Get rid of them.' These fact-finds are doing enormous damage. You have sergeants, warrant officers and lieutenants with no experience whatsoever in how to write a statement, let alone how to correlate evidence and write that. That fact-find, which has no central records, goes nowhere. Basically it goes up to whoever is in that commanding officer spot, and he puts it through the shredder and says, 'Nothing to see here.' That's where we're at in our Defence Force.

I have seen in my time some really great officers be officers in command and, because they were too close to their diggers, commanding officers of units say, 'Hey, big boy, this is what I want you to do: go and charge a couple of your diggers and show them who's boss.' This is not a legal system; this is a system of abuse. Sometimes there will be 30 or 40 people in that unit. That's all there is. That gives one person all that power to be judge and jury. That one person, if they don't like the digger, the digger's gone. They're absolutely gone. If you are lucky and your commanding officer likes you or you're extremely valuable because you're the only one who has that experience, you're safe; you're good to go, you stay. This is how the system works. It is not a legal system; it is a system of abuse and that's all it is.

There are ways to fix this. For example, when I was a corporal in the military police, I accessed all the computers. I tell you, I could determine, even at my level, who was going to be charged and who was not. I could remove those statements if I didn't like them. I could remove them if I believe their regimental sergeant majors in their units will take care of their own men so they don't walk around with black marks near their name. Back then we used to get extra duties. We didn't charge every digger. That's how it worked. Even at corporal level, I could put in or remove whatever I wanted out of the computer. I decided the fate at a corporate level. This is your legal system. This is really, really bad.

But what is worse, which really annoys me, is there is a royal commission going on. Seriously, there is a royal commission going on. Do you not want to wait? All you're doing is passing over more power to the abusers. If you put this through then, after that first suicide out of this, I will be back in here. I want you to think really carefully about this because, quite frankly, I want you to delay it. If you really want to do something about the suicides in Defence at this point in time before the royal commission starts putting its recommendations in, then I'm begging you not to put this bill through.

Once again, on 7.30 last Monday night, we saw a young fella gagged up, taped up, gaffer tape all over him, being abused. Your Defence Force, your military, knew about that for months and tried to shove it under the carpet. That's what happened to that poor young fella. That's your high-ranking officers doing that. That's the harm they're bringing to these people. It's not a system of war. It doesn't work. You cannot have these people who you are working closely with decide your fate. They cannot be judge and jury. It is a disaster, an absolute disaster. If you put this third tier in, if you put these infringement notices in, then all you are doing is slapping a digger around more. As soon as we take a complaint higher up—hey, see you later—there goes your career and, by the way, we will make sure we charge you on the way out. Just for taking us on, we will stick our chests out at you. That's how it is. We have problems with the leadership in our military and a very, very big part is the legal system that does not work. It's like I said: this is a system of bastardisation and abuse. That is all this legal system has become. So I'm asking you, before you make any moves you need to halt. Trust me, if you just get through to March and April when you start hearing those stories coming out of the royal commission thick and fast, you will regret this move. All you will do is take more diggers' lives through suicide. That's all this bill is going to do: give more power to the abusers and do over more diggers.

It's not a legal system. You cannot lead a legal system internally. You need an independent legal system that's on the outside. You need better trained military police out there. They were actually promised—what we should have got—25 or 30 years ago, so we could walk out with a qualification that doesn't just say, 'Here's one for "security guard".' That's ripping a digger off—what else is new!—when it comes to them being educated. I'm just asking you: don't vote for this bill. Just put it on hold, because you're getting it really, really wrong, and you will bring more suicides. It is the system that is in a mess.

It is a shame the diggers can't come forward and that they couldn't have stood in front of us, even behind camera, because they're too scared to. I'm running around like there's no tomorrow trying to convince them to at least come in camera with the royal commission and trust that process. I'm begging them. I'm not asking them to just do it for themselves but for their mates that they've lost, because if they don't come forward, the system will never change. And it certainly hasn't got better since I was in there. I've seen it with my own eyes. These big commanding officers up there have got no idea how to deal with females in combat units and infantry units, no idea whatsoever, let alone with any psychological issues. I'm trying to say this politely, but most men aren't good at that anyway, and the military men are even worse. We have massive culture problems in there that are going to come out. But one of the big reasons we are losing diggers and they're taking their lives is that they've been bullied and abused by their commanders, through what you call in here a 'legal system'. It's a legal system of abuse. You go ahead and vote for it, because I'll be standing up here, not so long in the future, saying: 'I told you so.

You're getting it wrong. And unless you've served in there, unless you've been in the military police, unless you've been other on the other side of it—and seen that it's still happening, and they're all coming to you—you have no idea what you are voting on today. I'll tell you what you're voting for: more bastardisation and more abuse to every digger that serves our military. That's what you are voting on today. You should be ashamed of yourselves. You've got a royal commission out there looking into this, and you're going straight over the top of it without even hearing what's coming through. Seriously! Don't vote for this. You're getting it wrong.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Let me begin by thanking those members and senators who have contributed to the debate on this bill, the Defence Legislation Amendment (Discipline Reform) Bill 2021, and a number of those members and senators who have served in our defence forces who have brought their experience to this bill. I would note that the bill has been scrutinised by committees in this parliament, including the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights, and through their diligence those committees have strengthened its content.

The intent of this bill is to reform the system of military discipline for those who serve in our Defence Force by modernising and improving the way that discipline officers and summary authorities operate under the Defence Force Discipline Act 1982. The reforms are intended to result in a discipline system that is easier to understand and to use and that reduces delays, while introducing new checks and balances to ensure that discipline continues to operate fairly. The reforms in this bill are intended to provide those in our Defence Force with far greater choice to have minor breaches of discipline managed as a disciplinary infringement without the strength of the lengthy, criminal-like investigations and court-like procedures that apply to matters dealt with by summary and superior military tribunals. Indeed, for the first time since the scheme's introduction in 1995, we do make clear what the disciplinary infringement scheme is and how it operates. Those impacted by poor discipline will benefit from having matters resolved more quickly. That is essential, because our people live and work and fight together.

These reforms will also allow commanders to more simply and quickly address poor behaviour and create opportunity for early intervention to better support the people in our Defence Force to continue as a positive contributor to their service. These reforms will encourage our service women and men to be accountable for their actions and, importantly, enabled to learn and grow from their mistakes. These reforms provide a more logical structure to the various discipline authorities based on the seriousness of the offending, the rank, the experience of the alleged offender, and the authority and experience of the discipline authority.

These changes to the DFDA will reform the military discipline system so that the people in our Defence Force will benefit from a discipline system that is easier to use, particularly at the lowest levels and particularly when the ADF is deployed on operations. It is more timely and responsive, enabling commanders to effectively manage personnel and address behavioural concerns. And it is fair and just towards all people involved in the disciplinary process. Further, it is trusted by people in our Defence Force and the Australian community and also is responsive to contemporary technology and how it is used.

The bill demonstrates the commitment of this government to achieving a fair and just military discipline system for those who serve our nation and to meet the disciplinary needs of the Australian Defence Force. I acknowledge the contribution of Senator Kitching on behalf of the opposition in relation to this bill. I also acknowledge the comments of Senator Lambie in relation to the contemporaneous commencement of the royal commission with the progress of this bill. I acknowledge the points Senator Lambie has made, but it is the view of the government that addressing the issues I have outlined in my summing-up speech is important, and I don't think the operation of the royal commission necessarily negates the importance of progressing these matters. I do want to thank all those who serve and have served in the defence of our nation and acknowledge sincerely the sacrifices they and their families have made.

I also table an addendum to the explanatory memorandum relating to this bill. The addendum responds to concerns raised by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

The question before the Senate is that this bill be now read a second time.