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Wednesday, 29 November 2006
Page: 55

Mr McCLELLAND (12:57 PM) —The Defence Legislation Amendment Bill 2006 is a further instalment of the government’s response to the report of the Senate Foreign Affairs, Defence and Trade References Committee on the effectiveness of Australia’s military justice system. That report was tabled in June 2005, some 16 months ago. The government’s response to the report came about one year ago. It is perhaps regrettable that this response, in the form of this bill, has taken that period of time to come before the House.

The bill makes three principle amendments to the Defence Force Discipline Act. First, it creates the Australian Military Court. Second, it creates military juries. Third, it creates a power for the Chief of the Defence Force to set up what is titled a ‘Chief of Defence Force commission of inquiry’, which I will explain a little further in the course of my contribution. The bill also provides for changed appeal provisions, categorises offences for the purpose of trial and makes a number of other consequential amendments, including transitional arrangements.

Regarding the attitude of the opposition to the bill, we should state that our general position is that, while we recognise the proposed legislation at this stage is an improvement on the current state of affairs, it is far from adequate in the structural changes that it proposes. In particular, fundamentally there is a significant gap between the government’s response to the Senate committee report and the committee’s actual recommendations. At the heart of this is the government’s acceptance of the view that the military justice system should remain within the defence hierarchy and not be removed to a civilian model as the committee recommended. In other words, we have perpetuated a situation where the military judges the military or, as commentators have said, where Caesar judges Caesar.

The committee’s unanimous all-party view was that reform was essential. Until the essential reform of making the military justice system truly independent—that is, outside the chain of military command—the system will remain compromised or at least apparently biased in perception and perhaps unfair and will continue to fail those who seek justice. The bill does not achieve that separation. In fact, this bill is not the groundbreaking reform that the government claims.

That, by the way, is also the view of the Senate committee. Government members have pressured the minister to significantly amend the bill. We note and we recognise the government has made significant amendments that have been provided to the opposition today. We respect the fact that the government has at least apparently shown respect to some of the recommendations of the committee. Obviously we have not had the opportunity to examine the full extent of those amendments in the time available. While we will not be standing in the way of the amendments passing through the House today, we reserve our right to examine the amendments in greater detail and respond appropriately in the Senate by rejecting them, amending them or proposing our own amendments to more closely reflect the recommendations of the committee.

As I indicated, the amendments that we have seen do address some of the issues, but, as a matter of principle, that structural separation between the military judging the military and what we advocate—that is, a complete separation so that the justice system is and is perceived to be fair and independent—has not been achieved. The simple reason for Labor’s opposition is that the so-called ‘new system’ remains part of the military hierarchy, staffed by military personnel and without any of the attributes which denote proper systems of justice in the modern world. The use of the word ‘independent’ by the minister to describe the new system is, with the greatest respect, simply wrong; it is nothing of the kind.

The bottom line is that the government wants no systematic reform to military justice and appears happy to fudge the edges so that the dysfunctional system will effectively remain in place. As a result, Australia’s fine men and women in the Australian Defence Force will continue to endure a system of justice which is less than the community standard. We believe they deserve nothing less than the community standard that the majority of Australians have an entitlement to.

It is important to understand the committee’s recommendations for a military court, to look at those recommendations in some detail and to compare them to the legislation that has been presented. In brief, the committee was critical of the current system for a number of very good reasons. The committee agreed that the control of the exercise of discipline in the ADF is an essential part of the chain of command. But it also said that acceptance of that was not unconditional, there had to be a balance and there was none in the current system. To quote from the committee report:

The weaknesses in the system, described in submissions and evidence … evident in crossjurisdictional comparison, identified in academic writings, and highlighted in recent Australian judicial decisions, all suggest that current structures are adversely affecting the rights of Service personnel.

That is the committee’s unanimous comment, which should not be lightly disregarded. Fundamental to the point the committee made was the fact that the system of justice available to ADF personnel, compared with that available to each member of Australian society, is dramatically inconsistent. To quote again from the committee:

In an era where open and accountable governance is increasingly demanded by the citizenry, all arms of Government must be seen to deliver rigorous, fair and impartial outcomes—the military justice system should not be exempt.

Again, from a common-sense point of view, none of us would cavil at that comment. In fact, there is no end of quotations from the committee which, by implication, oppose the government’s model insofar as it does not achieve that separation.

I will now deal with the key elements, starting with the military court. The proposed court replaces the current disciplinary tribunals—that is, the processes of court martials and defence magistrate trials. Given the perceived bias, compromise, unfairness and abuse of individual rights entailed in the old system, the Senate committee recommended that a new military court be established of similar nature to those established under chapter III of the Australian Constitution. As such, the court would be established outside the chain of command and would operate in the same way as the civil court, with independently appointed judges in the standard manner considering all evidence fairly with all due process. Judges would be drawn from experienced and well-qualified legal people in the community. Defence experience would be a secondary criterion to judicial expertise. As such, they would have similar security of tenure to other civil judges and would be appointed by the Governor-General. In short, the committee could see no reason for such a court to retain any trappings of the military.

However, in the second paragraph of the explanatory memorandum, it is wrongly asserted that the provision in this bill—that is, the government’s proposal—is the direct implementation of the committee’s recommendation. It is nothing of the sort. While the Senate committee did recommend the creation of a military court within the DFDA, it was certainly nothing like the one proposed in this bill. In fact, the government’s proposal differs little from the system of court martial and Defence Force magistrate that it purports to replace.

The model proposed in the bill does the following: It creates the military court within the Defence Discipline Act. Its judges must be serving officers of legal experience. Terms of appointment are only for five years. Reappointment will only occur in exceptional circumstances. On the conclusion of their term, judges are to be compulsorily retired. If they reach retiring age during the term they are also disqualified. Part-time judges are not allowed to engage in any other employment outside their duties. If a judge no longer meets his or her individual service deployment requirements they may be dismissed. Nominees are put to the minister for appointment by a departmental committee. The chief military judge is to be of a rank no lower than one-star general, which is equivalent to the DMP and the Registrar. A military judge is to be of no lower rank than commander or equivalent. Finally, staffing resources are to be supplied from the defence members and public servants employed under the Public Service Act.

We do note, as I have mentioned, that amendments will be moved by the government today to modify these proposals to some degree, but in no way, shape or form is this body anything like a civilian court that non-serving members of the Australian community are entitled to access when seeking redress for a grievance or when defending their rights or defending themselves against an alleged impropriety. In particular, there is no way that this model can be described as independent. Clearly, it is part and parcel of the chain of command. The minister’s fine words change nothing. Indeed, as the Judge Advocate General of the ADF has stated in evidence to the Senate committee:

This court looks like a tribunal.

We agree. The assertion contained in the explanatory memorandum is just presentational nonsense. The consequences, however, are very serious. Again, as the Judge Advocate points out in his evidence to the committee:

The court will have complete and exclusive Australian jurisdiction over members of the ADF outside Australia. Given the present and likely future tempo of operations and exercises, it is entirely foreseeable, if not likely, that there will be charges of the most serious offences such as rape and murder against members of the ADF at some stage. The AMC would be the only court which would have jurisdiction. The notion that such charges would be dealt with by a body described as a tribunal is extraordinary.

We agree with that. He said:

The bill represents a wasted opportunity to establish a military court with proper independence and status.

Labor’s view is that, if this court is to remain, it should have its jurisdiction limited to military service disciplinary matters where it is perhaps appropriate to have a tribunal functioning but not in respect of those serious matters, particularly matters of criminality to which I have referred. As a minimum it should not preside over civilian criminal offences committed overseas. The Law Council of Australia is equally scathing in its criticism of the proposed court—not just for legal reasons but also for practical reasons—and its impact on recruitment, retention and the strong perception of lack of independence.

In legal terms there has long been a debate about the authority of military tribunals. They have been challenged in the High Court for their lack of jurisdictional independence and impartiality. The view expressed by the Judge Advocate General is that the closer such a tribunal can be aligned to the arrangements for a court established under chapter III of the Constitution the less likely that a court or tribunal will be subject to challenge. The statement is significant, as we know that there are currently new applications challenging the authority of the current system in the High Court. The pity is that, if the government had accepted the committee’s recommendations for a military court akin to those established under chapter III of the Constitution, this doubt would have been avoided.

The warnings of the Judge Advocate General and the Law Council in respect of recruitment and retention have also been dismissed by government. With respect, that is extremely short-sighted. In other words, if the parents of a young person contemplating military life are yet to be convinced that their child will have the same rights as any other private citizen to address their grievances or defend their rights, they are going to be less inclined to permit their child to enlist in the defence forces. One can only wonder as to the extent to which the poor state of military justice has been a disincentive to recruitment. Indeed, those dissatisfied with the redress of their grievances have ultimately left the service of the defence forces as a result of the inadequacy of the current system.

Apart from the strong concern about perception of bias within the chain of command, which is blindingly obvious, the key question is: who would want to be a military judge under the current arrangements? Skilled and experienced legal people will be very difficult to recruit under these arrangements. There will be a high turnover and continuing loss of skill and experience. Judges inevitably will be of a lower standard than those of civilian society and there will be the inevitable perception of compromise because of their status as serving officers. There will obviously be exceptions. There are and will continue to be incredibly decent and competent and talented people who will put themselves forward for service, but by and large I think the quality of people who will present for service on this new court will not be equivalent to the quality of those in civilian society and there will certainly continue to be the perception of bias.

Yet the rhetoric and the gloss of the minister’s speech would have us believe differently. Astoundingly, the minister has told us that these judges and the court will no longer be within the chain of command. The minister asserts that the implications for their independence will thereby be removed. To quote the Judge Advocate General, again by way of response:

... it is now proposed ... that the military judges will have even less independence, so far as their terms of appointment are concerned, than they have under the existing arrangements. ... To now move to five-year renewable terms, which are not automatic ... considerably reduces the actual and perceived independence of the judges ... and greatly impedes the AMC’s ability to develop experience and excellence.

For the record, Labor wants all these limitations removed so that military judges are appointed and removed by the same process as all other judges. Again, we will be looking at the amendments to see if they achieve that. The final criticism is that the court is not a court of record. Again, this detracts from the status of the court as a genuine court and judicial authority. This shortcoming is a serious one, particularly as the court is supposed to be independent. Its decisions are appellable and its powers are substantial, including the power to punish for contempt. Labor believes, in summary, that it is essential that the court be a court of record. If that does not occur, the losers will again be serving members of our defence forces.

The bill also provides for the use of military juries comprising six serving personnel of no lesser rank than the accused, with a decision by a majority of four. The positive value of this proposal is that at least there are to be jury facilities with the sole role of determining guilt on the facts; we recognise that that is a forward step. As we know, trial by jury is widely accepted as a necessary safeguard to individual liberty and is, in fact, protected by section 80 of the Constitution. These military juries, however, are less onerous in their formation than civilian juries, particularly for indictable offences; we see that as a serious inconsistency. Neither the explanatory memorandum nor the second reading speech of the Minister Assisting the Minister for Defence provides any justification for that difference. We note that this was also a reservation of the Senate Standing Committee for the Scrutiny of Bills.

Further, these differences were also subject to criticism by the Judge Advocate General who, in his recent annual report, said:

... it is desirable that these points of difference be limited to those ... [offences] ... which are essential for the proper functioning of the military justice system.

That is why, quite simply, Labor senators, in their dissenting remarks in the Senate committee’s report on the bill, recommended that, for criminal trials overseas at least, juries equivalent to civilian standards be used. We note the amendments to be moved today again modify these arrangements to some degree and we intend to have a careful look at those amendments to assess their adequacy before responding in detail in the Senate.

Another issue is the Chief of Defence Force commission of inquiry. This in fact does have something to recommend it, in that such inquiries will be mandatory and the appointees who conduct them will be civilians. This would appear to be somewhat of a contradiction to the hardline attitude that the government has taken on the military court, where only ADF personnel can serve. So what is it about the CDF commission which is so different as to permit independence from the chain of command? It would seem at least that the frequent tragic deaths by suicide of young people in particular has hit home. So it should. If this is a personal expression by the Chief of the Defence Force of his commitment to fix the problem—and we accept his genuineness in his statements—then we are pleased that it has been reflected in this proposal.

While we support this proposal because it is a step in the right direction, it does raise the question as to why the principle has not been followed across the legislation. It is a great pity the initiative was not taken many years ago. In the last decade, 79 ADF personnel have taken their own lives. That is obviously both appalling and distressing, yet we know so little of the causes, except that bullying and harassment seem to be common elements. Having an improved system of investigation by a truly independent body is a good start. Beyond that measure, however, it is difficult to see any other changes that are for the better.

Unfortunately, that culture of bullying and harassment still appears to be entrenched in the culture of at least lower ranks—we recognise the genuineness of the senior ranks of the military—and not enough is being done to arrest that culture. For example, of those 79 suicides to which I have referred, no disciplinary action was ever taken against a single person. This is perhaps further evidence of the link between a failed military justice system and failed discipline. The government would like us to think that the evil of bullying has been exorcised. There have been some media reports suggesting that that has been the case. We recognise, certainly at senior levels, that there has been a desire to stamp out the culture, but it is far from a satisfactory situation.

It has not been long since the death of Trooper Lawrence from heatstroke in the Northern Territory last year, on which no action was taken against any individual. The coroner found the death to be the result of negligence; Comcare is suing Defence for the maximum penalty under the Commonwealth occupational health and safety law but, again, no individual has been held accountable. So, while a truly independent inquiry process is a welcome improvement, in the end, the result may be no different unless there is a commitment to follow through with appropriate action.

In fact, as some have speculated publicly in recent days, it is a pity this provision was not in place in time for the inquiry into the death of Private Kovco. In particular, we have seen criticism by the mother of the late Private Kovco regarding the process that was adopted in this inquiry into her son’s death. However, this proposal is also subject to some serious criticism from the Law Council, again unheeded by the government. The Law Council’s view is that, if this provision is to be entrenched through regulation, there may be undesirable consequences. The Law Council believes that, given the seriousness of this provision, the essential provisions should be in this bill and not in regulations. We agree with that.

There may also be practical considerations which have been overlooked. First, it is not considered practical to have such an inquiry into every death in the ADF—including road accidents, which we accept. We note that the Law Council includes suicides in that category. It must be noted that we do take issue with the Law Council there. We believe suicide to be of such significance that there should in each and every case of suicide be an appropriate inquiry. Finally, the Law Council is concerned at the availability of civilian judges to conduct what could be up to 40 inquiries a year when the demands on the judicial system are already very high. The council has suggested that there may be a wider pool of senior counsel to draw upon. We also recognise that as a sensible recommendation.

Regarding the government’s defence mythology, we note that the government’s justification for the bill and its provisions are set out in the explanatory memorandum. The philosophy is, quite frankly, based in centuries past. With respect to the appointment of judges, the government said, ‘A knowledge and background in the military environment and culture is required.’ With the greatest respect, we think that is no longer a relevant proposition.

Those in command have been brought up to believe that, once in the forces, the normal civilian rules of behaviour, proper process and civil rights do not apply, and that is unacceptable. It is the very culture they seek to preserve which in many ways is at the heart of some of the terrible problems that we have seen in the military justice system. For many, that is why there has been no justice at all, with tremendous distress being caused to families. This obsession with the difference of military life to civilian life is one of the great myths which are continually promulgated to deny access to the rights and fair, independent process guaranteed to all non-military members of our community.

The natural consequence of these assertions is that a failed military justice system must result in a failed system of military discipline. We would not like to think that was true, but, as the Senate committee found, there is plenty of evidence. For example, in recent times the government admitted that there were 88 cases of proved sexual harassment in the ADF in 2004-05. The most severe punishment that we saw was a compulsory posting. This is quite obviously grossly inadequate and certainly below that which could be expected in a civilian society. Certainly any victim of that harassment would have expected much stronger action. So, again, these measures are in many ways—if you look at it in that context—virtually a charade to prop up a compromised and defective system, where again we see a perpetuation of Caesar judging Caesar.

The next bald assertion made to support this bill is that ‘the AMC must be deployable and be able to sit in theatre and on operations’. Again, this statement is questionable. A military tribunal sitting overseas is a rarity. It is claimed, for instance, that military preparedness requirements and the physical demands of sitting in an operational environment require such a military focused court. Frankly, to keep perpetuating this nonsense is an insult. We are told in paragraph 4 of the explanatory memorandum, for instance, that the AMC must have credibility with the Defence Force. Again, to what extent does it have credibility with the Defence Force when members of the Defence Force cannot be satisfied of its impartiality?

The final part of the guiding philosophy for these changes is that the judges appointed will, as serving members, be subject to military discipline, including the need for training. In other words, judges are part of the system, not independent of it. These assertions are nothing but mythology. They in themselves are no justification for the legislation—and, as we have argued, the legislation in and of itself does not change a thing for the quality of military justice. The changes are basically a very thin veneer designed to demonstrate a lot of activity, wrapped up in empty but fine sounding words, but ultimately are preserving and sustaining a failed system. For those reasons, I move the second reading amendment circulated in my name:

That all words after “That” be omitted with a view to substituting the following words:

“while not declining a second reading for this Bill, the House believes that as the provisions for the establishment of an Australian Military Court are not in line with Chapter 3 of the Constitution as recommended by the Senate Foreign Affairs, Defence and Trade References Committee report of June 2005, and as the appointments to the court and juries are restricted to serving military personnel, the new court can never be separate from the chain of command and the provisions of the Bill therefore maintain the longstanding unsatisfactory compromise which denies the true independence, fairness and objectivity essential for the proper functioning of the military justice system”.