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Wednesday, 29 November 2006
Page: 104


Mrs GASH (4:48 PM) —It is a tenet underpinning our judicial system that justice should not only be done but should also be seen to be done. The military justice system forms part of our legal system and should not be seen as occupying a place outside those parameters, so I welcome the Defence Legislation Amendment Bill 2006 with some personal observations, particularly in light of some recent cases that gave rise to the public perception that somehow the military operated under a different set of rules to the rest of us.

Certainly the function of the military has to be seen in the context that, by nature of its calling, unique circumstances will be presented that cannot always be dealt with in the same way as civilian matters. The calling of the military imposes certain constraints that do not always allow matters to be dealt with as transparently as we would wish. Issues such as security and intelligence matters, strategic considerations and sometimes commercial considerations impact on the process. Establishing any military system of justice requires walking a tightrope between two imperatives. One imperative is that an effective military machine requires discipline as its very bedrock. The other imperative is that human dignity is not negotiable.

When our Australian men and women volunteer to serve their country by enlisting they know they do not throw away their right to be treated with common decency. But they also know that in the military everyone must pull their weight and obey lawful commands irrespective of his or her valuation of the worth of that command. The Defence Force encourages initiative; it knows that intelligent, well-trained men and women are much more effective than unthinking, docile personnel. At the same time, these defence forces recognise that no-one knows all the competing issues or the reasons behind orders and commands. Here then we have a bill which does credit to those who have worked on it and recognised the competing imperatives.

I could speak on the many important improvements in this bill, but to my mind the improvement that encapsulates the approach made by those who drafted it is division 4. Division 4, as you all know, provides for a military jury. This is a novel step for the Army, Navy and Air Force. The provisions of division 4 are very likely a first step—all novel propositions are—and I believe, in time, will take shape. Later there may be enhancements as we see it in operation.

There are those, I have no doubt, who would have argued that the provision for a two-thirds majority verdict in a jury of six, as originally proposed, tends more to convictions. The government has now amended this to provide for a majority decision of five out of six members, requiring a higher degree of consensus on the part of the jury. In serious criminal matters in ordinary courts, the requirement is 100 per cent or, at worst, five-sixths—10 out of 12—to convict. Those who argue this might well have a point. The penalties for such things as mutiny are such that great exactitude and certainty should be demanded of any verdict. However, the opportunities for appeal and even further appeal will, I believe, prove a sufficient safeguard.

In fact, the option that a person who has been charged with a class 3 offence—one that would be heard in a civilian court—has a magistrate sitting alone or elects to have a jury hear his case is an option that many a person in civilian courts would wish to have. This issue alone demonstrates the lengths that the government is determined to go to ensure justice for military personnel.

This bill covers many new matters, such as video links, but to my mind the introduction of a jury—its mandatory use in class 1 offences and its optional use, at the option of the accused, in class 2 and 3 offences—is a great step forward. A jury, as experience and research show, develops an ethos of its own. It takes its work seriously, it is aware of the mighty difference in strength of each side and again and again it has been the bulwark of true liberty. The framers of this bill should be commended, because non-commissioned officers can also serve on a jury.

I am proud to voice support for this bill. You can put it in ornate legal language or in philosophical terms but the real impact of this bill is that our servicemen and servicewomen will get a fair go. A fair go—that is all Aussies ever ask for. That is what this bill is designed to do: give them a fair go. So it is no surprise that, whilst the majority of the recommendations that were put by the Senate committee inquiring into the effectiveness of Australia’s military justice system were adopted, the government did not adopt some recommendations, so as to preserve the organisational effectiveness of the military. It is largely a jurisdictional question, with some practical limitations given the nature of the conduct of warfare. The last thing we want is to compromise the military’s operational effectiveness by undermining the authority given to commanders and the ability to react speedily when the circumstances dictate. It may be all very well in a peacetime environment, but conflict presents an entirely different prospect, so a uniform military justice code has to be able to meet all contingencies in a consistent manner. Whilst that might compromise the notion of transparency and due process, there are times when the military may not be able to afford such a luxury. In its response to the recommendations from the inquiry, the government said this:

The purpose of a separate system of military justice is to allow the ADF to deal with matters that pertain directly to the discipline, efficiency and morale of the military. To maintain the ADF in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, sometimes, dealt with more severely than would be the case if a civilian engaged in such conduct.

I think it is generally well accepted that the military operates in an environment where the rules that apply to civilians cannot apply to soldiers if we want an effective fighting force. The soldier, by his training, is torn between the values that his family and community have instilled in him and the imposition of military conditioning on those values. The thread of the government’s basis for disagreeing with specific recommendations is the necessity to maintain effective teamwork, and that means demonstrating that the military, whilst it looks after its own, also metes out punishment towards its own. It is a close-knit community whose cohesiveness is integral in maintaining an effective fighting machine. This bill is an initiative that is long overdue, and I commend the government on its vision and foresight.