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Wednesday, 29 November 2006
Page: 64


Mr EDWARDS (1:39 PM) —I support the amendment moved by the member for Barton. Indeed, I congratulate him on a very well-considered, well-balanced contribution to the second reading debate on the Defence Legislation Amendment Bill 2006. I commend the things that he has had to say to members.

I am disappointed that, after having made his contribution, the member for Herbert has left the chamber already, because there were a couple of issues that I really wanted to take up with him. He said that members of the ADF, particularly around Townsville, with whom he has had contact are happy with this proposal and generally happy with military justice the way it is. My understanding of the member for Herbert is that he spends a heck of a lot of his time in the officers mess. I really urge him to get out of the officers mess and to go down and talk to some of the diggers and to some of the senior NCOs and listen to some of the stories that they have to tell about military justice.

The member for Herbert is right when he praises the work, the professionalism, the courage and the dedication of members of the ADF, whether they are serving in Australia, Afghanistan or Iraq—or wherever else it is that they may be deployed. He is right: they do provide Australia with a great service and this service is recognised by our allies. I think it is more broadly recognised, too, that military justice in Australia needs to be dragged into this century, just the same as it has been for the allies that we so often serve with—the Americans, the British and the Canadians. Our ADF members, our young men and women who serve on deployment with these allies, are entitled to the same levels of military justice and to the same levels of fairness within the justice system that our allies receive, but so often they do not.

You only have to look at some of the inquiries that have gone on in recent years that have been generated because of concerns about our military justice. Some of these have been identified in the Senate report that was handed down last June, including the 2002-03 WA Coroner’s investigation of the HMAS Westralia fire; the 2001 Burchett QC inquiry into military justice in the ADF; the 2001 Joint Standing Committee on Foreign Affairs, Defence and Trade’s Rough justice? inquiry into allegations of brutality in the Army’s parachute battalion; the 1999 Joint Standing Committee on Foreign Affairs, Defence and Trade military justice procedures in the ADF inquiry; the 1998 Commonwealth Ombudsman’s own motion investigation into how the ADF responds to allegations of serious incidents and offences; and the 1997 Abadee study into the judicial system under the Defence Force Discipline Act, which Justice Abadee began in 1995.

Each of these inquiries, as the Senate report points out, ‘has identified, to a greater or lesser degree, shortcomings in the military justice system’. The report makes this statement about the various inquiries:

Against this background of almost ten years of rolling inquiries into the military justice system, the Chief of the Defence Force (CDF) recently expressed his view that ‘The military justice system is sound, even if it has sometimes not been applied as well as we would like ... I have every confidence that on the whole the military justice system is effective and serves the interests of the nation and of the Defence Force and its people’.

It is interesting that the committee report notes that ‘the committee cannot with confidence agree with this assessment’. In this report they were obviously talking about the recently retired CDF, General Cosgrove, a man for whom I have an immense respect. But I recently read General Cosgrove’s book, entitled My Story. In his book, which is worth a read, he complains about the process of some of these inquiries, and he is obviously far from happy with the outcomes. He said that in his view, and I paraphrase him, ‘The process of these inquiries has sometimes been unfair to the ADF’ and that these inquiries ‘unjustly reflected on the processes of the ADF’. That is just a rough paraphrase of what he had to say.

That is his view, and I think General Cosgrove is certainly entitled to hold that view. But I take a different view—that is, military justice in this day of deployment to so many parts of the world, in the current environment where justice has moved on within the community, seems not to have moved on within the ADF. Indeed it has stalled and is a cumbersome beast within the ADF, and it certainly does not always look after or provide fairness and justice to members of the ADF. I recognise that there is a reluctance at the senior officer level within the ADF to accept that and to listen to voices such as that of Robert McClelland or those of those who were involved in this Senate inquiry. It is a pity that the minister himself has through this legislation not better responded to some of the recommendations made by the Senate committee.

As a member of the House of Representatives I greatly dislike having to sit by and watch a rubber stamp applied in this place and seeing legislation simply pushed through to the Senate. That is what will happen here: the very good amendment moved by the ALP spokesman on Defence will not get up—it should but it will not. So I call on the Senate to properly review this legislation, to consider the amendment moved by the ALP in this place and to measure the legislation before us today against what was recommended and proposed and what was covered and investigated in that 2005 report of the Senate Foreign Affairs, Defence and Trade References Committee. If they do that, and do it fairly and with open minds, they will see that this legislation falls far short of what they recommended. What is worse is that some of the proposals in here are simply unworkable and will not serve military justice well in this country, nor will they serve those members of the ADF who from time to time have been caught up in the unfairness and injustice of this military justice system. Let’s look at some of the things that the Senate committee identified during their investigations into military justice. On page 11 of the committee’s report they list a number of the problems and issues that they say, quite rightly, should lead to changes in military justice. I will list some of them:

  • inordinate delay in investigation of alleged offences—in some cases investigations have gone on for several years;
  • poor quality investigation of alleged offences—such as inappropriate questioning of civilian family members, failure to check easily obtainable exculpatory evidence, failure to liaise closely with civilian agencies;
  • lack of independence in the investigation of alleged offences;
  • failure to obtain and/or act on Australian Federal Police (AFP) and DPP advice;
  • lack of independence in the decision to prosecute;
  • poor quality prosecution of alleged offences;
  • inordinate delay in the decision to prosecute;
  • inordinate delay in the trial process;
  • lack of independence in the trial process;
  • lack of impartiality in the trial process; and
  • inordinate delay in the review of trial process.

The member for Herbert said that the people he talks to in Townsville are happy with military justice. I do not know who he is talking to, and that is why I have suggested to him, and why indeed I urge him, to get out of the officers mess and go and talk to the other ranks and hear what they have to say, because page 51 of the Senate report notes:

For ten years now, there have been increasing calls from servicemen and women and their families that all is not well in the military justice system. Repeated inquiries have resulted in piecemeal change but some fundamental principles remain unchallenged. The serious issues raised in the 150 plus submissions made to this committee—including by extremely senior ranks of the military—make it plain that wholesale review and reform of the principles underpinning the current system of military justice is now required.

What we see today is more of the same. It is more of that piecemeal approach. Although this legislation does make some improvements—and that is why the ALP will support the legislation—it falls short of the overall reforms it should have made. It falls short of what it should have done. That is why I think there is a very strong requirement for the Senate to address its task, to refer back to this very good report and to measure the expectations of this report against what we actually see in legislation. And I hope that they might have a good look at the amendments put forward by the member for Barton, because really this legislation does need improvement.

I was involved in bringing to the House some years ago the case of a warrant officer who was on service with the SAS, the Special Air Service, in East Timor. This particular warrant officer, along with other members of his patrol, was involved in an ambush which required some fairly quick and fairly robust response. This warrant officer returned fire, and the patrol withdrew from the place of the ambush, bringing with them a couple of the bodies that they had killed. To cut a long story short, this warrant officer was subsequently charged with kicking those bodies, a charge which ultimately he was found to have been innocent of. But the investigation and the threat that hung over the head of this very dedicated and professional soldier created incredible stress and pressure for this man and for his family.

The investigations into this man went on for years. He was at one stage threatened with being charged with murder. He was pulled off deployment when the troops that he had been training were deployed to Iraq. He was told: ‘Because of these charges, you can’t go with your men.’ That single thing was nearly enough to destroy him, because he had a very close bond with them and he had trained these men for a period of time. Because of these charges, he was pulled off deployment.

It took a long time for this man to get justice, and he only got justice in the end because two senators took up his cause and went in to bat for him. But eventually, some years after he was charged, some years after he was subjected to incredible pressures and stress, the army put out a press release, with Lieutenant General Leahy—and I congratulated him at the time—publicly apologising to this man. Part of the press release said this:

The Army acknowledged that errors had been made during the investigation and prosecution of an Australian Interfet soldier charged with kicking two dead bodies in East Timor in 1999 ...

…            …            …

“These were serious allegations that needed to be pursued vigorously. The soldier was found not guilty on all charges.”

“I acknowledge there were organisational failures such as the length of the investigation. I also acknowledge problems with the quality of statements taken from witnesses and with Army press releases.” ...

The Inquiry Officer found that the soldier’s complaints were substantiated. He concluded that the military police investigation was deficient in a number of respects and had taken too long. The administrative action taken against the soldier, of which he was also found not guilty, while possible under current policy, in this case, on reflection would have been best not taken.

We heard the member for Herbert say that, in his contacts, the members of the ADF are happy with what they have. But what he has told the House today stands in stark contrast to the experiences of that senior special services soldier. It stands in stark contrast to what General Leahy himself said in that press release. It stands in stark contrast to the evidence that was put before the Senate inquiry and in stark contrast to what many family members of serving ADF personnel have put before the inquiry.

I will just say once again: this legislation, while I acknowledge it as having some improvements, falls short of the requirement for this government to accept its responsibilities and to have brought forward a piece of legislation which did recognise the need for justice and the need for fairness for our members of the ADF as they go about doing a very professional job under very many demanding circumstances in many parts of the world. The government could have done better with this legislation, and it should have done better.


The SPEAKER —Order! It being almost 2 pm, the debate is interrupted in accordance with standing order 97. The debate may be resumed at a later hour.