Mr McCLELLAND (12:01 PM) —The opposition support the Defence Legislation Amendment Bill (No. 2) 2005 in recognition that it represents at least some progress in improving the military justice system. But we do note that this is the first time for many years that the Howard government has done anything about what has been described by a bipartisan Senate committee examining this topic as virtually a dysfunctional military justice system. The Minister for Veterans’ Affairs talked in her contribution about the significance of instances of abuse, which is unquestionably true. She referred to publicity of these events, distress on individuals and the ruining of careers, which are all absolutely true. We see on the front page of the Sydney Morning Herald today, for instance, yet a further allegation of what can only be described, if sustained, as sick conduct—worse than weird—in respect of a young female reservist, which must be addressed.

I would go further than the minister went. I would say that allegations of abuse and instances of bastardisation, bullying and abuse have now become a national security issue. There is no question of the perception of its existence. Figures revealed by the minister in answer to a question on notice that I received yesterday reveal that there are extensive instances of abuse. They have, unquestionably, a disincentive effect on recruitment and they also, I believe, necessarily must have an effect on retention rates.

For instance, the figures show that 2.1 per cent of all naval personnel—that includes both permanents and reservists—have complained about unacceptable behaviour. Last year 12 per cent of our Navy personnel decided to leave the service. How many of these vital sailors are we losing because of sexual harassment, workplace bullying and other forms of unacceptable behaviour? The figures show that five per cent of all Army personnel complained about unacceptable behaviour. Last year 13 per cent of our troops made the decision to leave. Again I ask: how many of these men and women made their decision because of a culture of bullying and abuse, whether that was of themselves or what they witnessed? In the Air Force 0.6 per cent complained about unacceptable behaviour. Last year eight per cent of our Air Force made the decision to leave the services. Again I ask: how many determined to leave because they would not accept inappropriate—indeed, unacceptable—treatment in their workplace?

These are not frivolous complaints. Indeed, the figures provided to me yesterday show that some 55 per cent of complaints have been upheld. These are serious issues and have to be addressed seriously. I should say at the outset that, in making those points, the opposition acknowledge that the overwhelming majority of Australia’s serving men and women are incredibly decent and committed Australians and would never consider engaging in unacceptable behaviour in the course of their duties. We also accept and respect the fact that the current Chief of the Defence Force, Air Chief Marshal Houston, has indicated a policy of zero tolerance for unacceptable behaviour in the Defence Force and we accept the genuineness of his commitment. Nonetheless, there are clearly long-term structural problems that exist in our system of military justice, which on any reasonable assessment contribute to a situation where a culture of bullying, bastardisation and abuse can exist.

As I said yesterday, the figures revealed in response to a question—No. 1930, for those who are interested—in which I asked the minister to break down annual report figures of unacceptable behaviour in terms of complaints under the individual subheadings of ‘sexual offences’, ‘sexual harassment’, ‘general harassment’, ‘discrimination’, ‘abuse of power’, ‘workplace bullying’ and ‘inappropriate workplace relationships’, show, significantly, that of 749 complaints of unacceptable behaviour across the entire military, including the civilian Department of Defence, 631 were in our armed forces—a vastly disproportionate number of complaints.

I have already alluded to the fact that the Navy is by far the most alarming example where, out of a total of just over 13,300 permanent and reserve members, there were 45 complaints of sexual offences, 42 of sexual harassment, 132 of general harassment, 14 of abuse of power and 43 of workplace bullying. As I have said, the figures also show that 55 per cent of those cases have been substantiated—that is, the complaint has been upheld as valid. As at 30 June 2005, another 23 per cent of those cases have not been finalised but, on the same percentages, we are entitled to assume that the majority of the cases that have yet to be finalised will also be sustained.

The figures for the Navy, which are approximately 5,000 fewer in number than the civilian staffing of the Department of Defence, showed almost three times as many complaints of unacceptable behaviour and, in some categories, were dramatically higher. For instance, as I have said, there were 45 sexual offences complaints in the Navy, whereas there were only two for the civilian Department of Defence. There were 42 complaints of harassment in the Navy and nine in the Department of Defence. There were 43 complaints of workplace bullying in the Navy and 29 in the Department of Defence.

A comment reported in the media today that our Defence Force figures replicate what can be expected in a normal workplace is certainly not the case. These figures demonstrate that there is a disproportionate number of complaints in our armed forces and, as I have indicated, a substantial number—the majority of 55 per cent—of those have been found to have been upheld. On any measure, these figures are totally unacceptable.

The recent Senate Foreign Affairs, Defence and Trade References Committee, in its report, The effectiveness of Australia’s military justice system, considered evidence from a number of personnel and families of previously serving servicemen and women, and they outlined a number of tragedies—several suicides—that have occurred as a result of this sort of conduct.

In today’s media we have again seen reports of allegations of completely unacceptable behaviour—as I have said, more than unacceptable, absolutely sick behaviour—if it occurred. These issues are more than concerning; they are now to the point of being a national security issue. As the Chief of the Defence Force has said, the recruitment of talented young Australians into our Defence Force is a pressing priority for the long-term skill base of our military; hence the technological edge that we have in our region. Yet, despite our knowledge of the existence of this culture, as found by that bipartisan committee, this is effectively the first time for 10 years that the Howard government has introduced measures to in some small way at least reform the military justice system. This is despite the fact that over the past 10 years there have been six major reviews of the military justice system, not including the most recent Senate inquiry to which I have referred.

In part, the bill we are considering arose, as the minister indicated, from the Abadee report commissioned by the Department of Defence in 1995 by the then Chief of the Defence Force, General Baker, which was submitted to the general in August 1997. Essentially that report recommended greater autonomy be granted to Defence legal personnel from the normal military chain of command. It is acknowledged that the bill goes some way to achieving that.

The second major report that forms the basis of part of the current legislation is the Burchett report, which was submitted to the then Chief of the Defence Force, Admiral Barrie, in July 2001. Again the motivation for the instigation of that report was numerous complaints of unacceptable and violent behaviour across the Defence Force. In his report Justice Burchett noted an unhealthy culture of ‘keeping things in-house’. His Honour noted in respect of objectionable practices in training and justice occurring at military institutions:

That is the finding in the report. We are concerned that this perception that things can still be kept in-house has not been sufficiently addressed by the government. The concept of ‘Caesar judging Caesar’ is very much a concern that exists in the community and certainly, as indicated by the Senate report, in the majority of parliamentarians.

The Burchett report recommended the establishment of an office of Director of Military Prosecutions as an independent prosecutorial authority for the Australian Defence Force. It was recommended that the office take responsibility for prosecutions of members of the Defence Force facing trial by court martial or a Defence Force magistrate under the Defence Force Discipline Act. This aspect of the report is again substantially implemented in the legislation we are considering and is supported by the opposition.

In April 2001, the Joint Standing Committee on Foreign Affairs, Defence and Trade handed down a report entitled Rough justice? An investigation into allegations of brutality in the Army’s parachute battalion. It was Report No. 99, commonly known as the Rough justice report. As indicated in the title, that report concerned allegations of misconduct in the 3rd Battalion of the Royal Australian Regiment. There have also been several other reports that have either directly or indirectly questioned the effectiveness of Australia’s military justice system, including the Defence Force Ombudsman’s report in January 1998.

As I say, the measures contained in the bill in some way reflect the recommendations of those previous reports, as outlined by the minister, but, other than in an extremely limited way, they do not reflect those of the most recent inquiry by the Senate Foreign Affairs Defence and Trade References Committee, to which I have referred. That bipartisan report found:

It further found:

Shortcomings identified in the report included: the prevalence of untrained investigators; inordinate delays in the system; a poor quality of investigations; poor evidence gathering; a failure of procedural fairness; a lack of independence; inordinate delays in reviews; a lack of independence in the review process; a lack of impartiality; a failure to act on recommendations; a failure to keep complainants informed and to protect them; breaches of confidence; and abuse of powers—to summarise the more significant of those findings. It is regrettable that the government has decided not to implement the complete recommendations of the Senate committee. We recognise that the government has indicated additional legislation will be introduced, but nonetheless that legislation will not, as we understand it, implement the full recommendations of the committee.

The substance of the current bill has been outlined by the minister in her second reading speech. I will not repeat the substance. Rather, I will restrict my comments to general concerns about the inadequacy that is still there in the operation of these provisions. Firstly, in respect of the establishment of a statutory Director of Military Prosecutions, we welcome the statutory office being a full-time appointment. That will substantially consolidate the director’s position and functions. However, we note that under the bill the director will be appointed by the minister and the director will also be required to submit an annual report to the minister. The subordination of the director to ministerial authority does not, we believe, sufficiently remove the director from the influence of the military chain of command, which view was expressed in the Senate report to which I have referred.

The Senate report expressed concern that internally appointed administrators of military justice might remain subservient to their military superiors and that, at the very least, there might be a perception that those seeking justice would believe that they would have difficulty in receiving a fair and sympathetic hearing in the context of a situation where those administering justice remained subject to a higher military command. We note in particular that while the director will not be appointed internally he or she will nonetheless be appointed from within the military ranks. Indeed, one of the criteria of the appointment is that the director must be either a permanent member of the military or a reservist rendering continuous full-time service. Unquestionably, in that context, the director will remain, we believe, subject to higher military command. In that context, we note, for instance, that, under the bill, the director’s minimum ranking has been increased to commodore, brigadier or air commodore, which, as I understand it, is the equivalent of a one-star general ranking. That we would concede is consistent with recommendation No. 14 of the Senate committee report. However, the reality remains that the proposed Director of Military Prosecutions, in making the decision to prosecute charges, will take over that decision-making process from some 30 or so officers with a ranking equivalent to one- and two-star general ranking, and it remains the case that, as a statutorily appointed director, he or she may still operate in the shadow of those more senior command officers.

The nature of the appointment is also important, because under the bill the director’s powers will include powers in respect of civilian, criminal and military discipline offences, not just military discipline offences. The recommendation of the Senate report was to restrict the DMP’s functions to military discipline functions—specifically, that the director:

Generally, the structure of the office is inappropriate to that of an impartial prosecutorial authority. For instance, one of the director’s functions is to represent the interests of the service chiefs at any hearing before the Defence Force Discipline Appeal Tribunal. Clearly, this function in itself pollutes, at least from the point of view of perception, appropriate lines of separateness, accountability and independence.

A further recommendation of the Burchett inquiry that is adopted in the bill is the creation of the office of Inspector-General of the ADF. The office was created administratively in January 2003, and under the bill a statutory appointment of Inspector-General of the ADF would be made by the minister. Again, we recognise and welcome the fact of statutory appointment. But, in making that appointment—in the appointment process—the minister must have regard to the recommendation of the Chief of the Defence Force. As I have indicated, I have tremendous respect for not only the Chief of the Defence Force but also the current Minister for Defence, but it can be seen that this procedure, which requires the minister to have regard to the CDF’s recommendation, when combined with the requirement for military experience on the part of the candidate, may again, at least from the point of view of perception, bring the independence of the position into question. Despite the sincerity and decency of those involved in the decision-making process, the perception is affected.

Of significance was the fact that the Senate report specifically questioned the need for the inspector-general to have military knowledge, noting:

I note that the government has taken the opposite emphasis with its explanatory memorandum, arguing that the position of Inspector-General ADF can only work successfully if he or she enjoys the confidence of the Chief of Defence Force and is able to work with the Chief of Defence Force—hence the justification for input by the CDF in the selection process.

But again this should be looked at in the light of ongoing occurrences of unacceptable behaviour and in the light of a reluctance on the part of young potential recruits to enter the defence forces—a reluctance that is a result, I believe, of the perception of that culture. On the figures I referred to earlier in this speech, that is probably—it remains to be researched, but commonsense would suggest this—a factor in retention rates. Viewed in that light, the first and foremost priority of the Inspector-General ADF should be that he or she enjoy the confidence of the Australian community.

Another concern we have with the office is the fact that, whereas the Burchett inquiry recommended that the inspector-general be given specific power to refer matters to civil police, the bill is quite vague in respect of that particular function of the inspector-general. It merely includes a statement about ‘referring matters to other appropriate authorities to be dealt with’. That matter, we believe, should be clarified specifically. We are also concerned that the inspector-general is only to report to the CDF as directed by the CDF. In particular, that provision suggests a less than complete determination on the part of the government to change the culture that was found by the Senate inquiry to exist within our military. In particular, it shows less than a commitment to what the government claims as its priority—the development of a transparent and fair military justice system. Again, in the context of the explanatory memorandum we believe that the inspector-general should have as a significant—if not primary—purpose the preparation of reports in order to publicly expose failures in the military justice system so that they can be properly examined and remedial action taken.

I want to move to another statutory office under the bill. The office of the Registrar of Military Justice will undertake some administrative duties currently undertaken, as the minister indicated, by the convening authorities. Again this is a measure which the opposition welcomes. It will hopefully avoid the potential for conflict that currently exists in the system, where convening authorities undertake both prosecution and administrative duties with respect to the progress of a disciplinary or criminal trial process. Indeed, it is fair to say that the majority of complaints that come across my desk in my capacity as a shadow minister—and, occasionally, in my capacity as a member of the House of Representatives—in respect of delay and lack of outcome on the part of those seeking review of their treatment within the military relate to that very phenomena of the prosecution being the manager of the actual complaint or disciplinary process.

However, we believe it would have been desirable for the registrar to be able to make interlocutory and interim orders regarding the progress of litigation, just as a registrar in a civilian court frequently has this power. For instance, in some cases it may be appropriate for orders to be made with respect to discovery of documents. In other cases it may be appropriate for there to be some direction regarding expedition of a case, particularly in circumstances where evidence suggested physical or mental trauma as a result of the circumstances confronting the complainant.

We also expressed concerns that under the bill, as the explanatory memorandum states, superior authorities will be appointed to:

We believe it is unsatisfactory that the bill does not effectively identify and delineate the role of that superior authority or the relevant rank of the superior authority. It is quite possible, for instance, that a superior authority may be a two-star rank or more senior, whereas the Director of Military Prosecutions will in all likelihood be a one-star officer. This is again a clear situation where, if the supervising authority is a more senior officer, there will be enormous pressure on the more junior-ranking officer occupying the position of Director of Military Prosecutions to be at least subconsciously subservient to that superior authority. We believe it is also inappropriate for those superior authorities to be responsible for organising the legal representations of an accused person, given that their primary obligation and role under the legislation is to represent the interests of the ADF. Again, in that context, it is regrettable that the government has not adopted the recommendation of the Senate report to establish an independent position of director of defence counsel service.

In summary, while this bill is welcomed to the extent that it does implement some recommendations of previous inquiries, it does not address those fundamental structural issues to which I have referred. In particular, it does not seek to distinguish between the military justice system and control by the military—in other words, the concept of Caesar judging Caesar, which I referred to at the outset of my speech. While this legislation was not available to the Senate inquiry, it is again reflective of a government approach to the military justice system which was described by the Senate committee as being ‘broadly reactive and piecemeal’.

In short, this proposed legislative framework does, to a degree, separate the prosecution and administrative functions between the Director of Military Prosecutions and the registrar and does give greater autonomy to the three statutory appointments that have been referred to. However, problems with that appointment process in itself, the qualification for office of those office-holder, and the influence or potential for influence to be brought to bear on those office-holders by more senior officers under the procedures set out in the bill do not significantly change or sufficiently change that dynamic of control of the military justice system by the military hierarchy itself.

For those reasons, much more needs to be done, and we would again ask the government to consider the recommendations of the Senate committee to which I have referred, which had the philosophy of very much effecting a demarcation of functions between the military and civilian authorities. In conclusion, for the reasons outlined, we support the legislation. I move:

The DEPUTY SPEAKER (Hon. BC Scott)—Is the amendment seconded?

Mr Georganas —I second the amendment and reserve my right to speak.