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Wednesday, 29 November 2006
Page: 110


Miss JACKIE KELLY (5:19 PM) —I acknowledge many of the comments the member for Werriwa made about our military services, comments which I think are shared by everyone in this parliament. Someone in uniform is different. Being in the military is not the same as any of the other occupations in Australia. That is why we treat our veterans differently from age pensioners or any other people who receive stipends from government—judges or public servants. That is why we have national days which honour victories in battle. When we think of Remembrance Day, Long Tan Day or Anzac Day, we tend in Australia to recognise loss of life, which is an occupational reality for members of the Defence Force. We restrict by these laws a lot of claims that can be made if service personnel lose their life in operations. They are limited to statutory compensation in a way that no other civilian occupations are so limited. So it is natural when we come to a military justice system that we say these cases are special and need to be treated differently. A civilian standard is just not accountable and effective.

If you look at the second reading speech of the Minister Assisting the Minister for Defence on the Defence Legislation Amendment Bill 2006, you see that it is about providing a military justice system that is effective and as fair as possible. In an operational sense, to be effective sometimes is quite contrary to the fairness of things. So it is providing a balance between those two concepts. The most clear example I can give of that is the litigious case that started this whole event, which is known as the ‘Butterworth board of inquiry’. It is notorious in defence circles. There was not a death, there was not a body, there was not a fight, there was not a punch thrown, there was not a command disobeyed, but the military spent $6 million resolving manning issues—$6 million tied up in a military justice system which could have been spent on other assets or personnel for a more effective defence of Australia.

And what was the result of that board of inquiry? A lot of the repercussions resulting from that board of inquiry are still going on. It effectively stopped the careers of some outstanding officers, people who had been fast-tracked for careers throughout the military, and it demonstrated quite clearly the paralysis that had stepped into the command of the military where people were trying to navigate around legal situations. In this situation we had an operational unit that was flying sorties out of Butterworth, which was no longer functional. Yet a commander in that situation coming up from Adelaide could not command because of the legal mire he found himself in. It then went on to subsequent law cases, and I believe one of the cases is still before the courts. In deference to that, I will not make any further marks about it.

But it led to an expenditure of $6 million on lawyers’ fees, on boards of inquiry and on subsequent investigations into the military justice system that quite clearly said that a military justice system needs to be quick, effective and capable of putting command back into operational units. You cannot paralyse the operations of someone in Afghanistan and Iraq for two years. Operations do not work like that. The military cannot work like that. You cannot paralyse an Australian Defence Force command situation when you are putting people out there in the field and with the increasing tempo that we will see over the next 10 years. We need an effective and fair military justice system as much as possible.

I recognise the reasoning behind the amendment proposed by the opposition. They are seeking to reserve some sort of position so that the court cannot ever be separate from the chain of command. It is a very difficult one to manage, but certainly this legislation goes a long way to removing that chain of command issue that was evident in previous proceedings where the people who established the courts martial, ran the courts martial and appeared before the courts martial were all within a command structure where their officer evaluation reports were written by people affected one way or the other by the military justice system.

The minister acknowledges that there will be a need for further amendments to the Defence Force Discipline Act as additional parts of the government’s response to the report are implemented in the near future. That has been recognised. We take on board the opposition’s amendment, but I think the minister has allowed for that sufficiently with what we are doing here. Having left the Defence Force in 1996 and being here in 2006, 10 years later, to finally see the Defence Force get the military justice system it deserves, I say, ‘Don’t delay this any further.’

The military is different. It needs to be fast, it needs to be efficient, it needs to be effective and it needs to be fair. But it also needs to be a responsive unit, deployable in a timely manner, that can mediate in areas where command has failed. It needs to be able to come up with solutions that allow the command to get back in the field. That has been seen on several occasions in military history, particularly with the Butterworth board of inquiry, to be woefully inadequate under the current Defence Force Discipline Act and our subsequent amendments to it.

The new Australian Military Court will be established with appointed military judges who have security of tenure but who still have the ability to be promoted within that time of tenure. I would like to know who is writing their OERs, but that is yet to be resolved I suppose. We are trying to get things separate from the ordinary chain of command. The court will be provided with appropriate paralegal support so it functions independently. It will be a permanent fixture and it will be mobile. It is a fly-away kit that can go to Baghdad, to East Timor or to Afghanistan to resolve things. It can take evidence by video link. It can take evidence over the phone. It can really hustle things along to get to an outcome that is in the interests of military command and control.

Military commanders need to be able to command. It is quite different from any situation in the civilian sector, where someone who is not getting on with a subordinate can put up with a lot of rubbish as they go through unfair dismissal litigation and then come to a resolution and to some financial agreement two years later. Men’s lives are at stake, and the situation needs to be resolved expeditiously and in a disciplined manner that ensures corps’ morale and esprit de corps and ensures that things are seen to be fair and that men out of line are being dealt with appropriately and promptly in time to get the rest of the corps in order so that the situation does not undermine an entire command—as happened with the Butterworth board of inquiry, where not only were the operations of the 10 men on active duty paralysed but also the operations of their commander and the commander of that commander back in Adelaide. Everybody’s operations were totally paralysed in that instance. They forgot the one thing that was central to their operations, and that was command. The military needs to have the ability to issue commands that will be obeyed. ‘Yes, sir, how high?’ is the response that you want and the response that you need to get in the military. That is the type of discipline that you are seeking, and it comes from a very effective, fast, efficient and transparent military justice system.

All our forces are trained in the laws of armed conflict, from recruit training to any promotional level, and they are very good at recognising an unlawful order from a lawful one. They know, under the laws of armed conflict, not to obey unlawful orders, but they need to know that there are very serious and very fast consequences if they disobey a lawful command. These consequences will follow you to Baghdad and to the ends of the world, and they will be happening next week or the next day if necessary in order to get this unit back into shape if there is gross disobedience. So that is what we are dealing with.

I think a lot of speakers today have discussed really over-the-top situations, such as alleging that this tribunal would deal with a rape issue in this hurried manner. Under the Defence Force Discipline Act, the Defence Force has always retained the power to refer those matters to the civilian courts. Clearly, in those matters the Defence Force always cooperates completely with the civilian authorities and allows the prosecution of its members. Equally, we are subject to the rules of the International Court of Justice in The Hague if any of our Defence Force personnel breach any of the Geneva Convention.

This is a long overdue step. It is a start in the right direction, and I recognise that there might have to be more amendments to the DFDA. I am thrilled to see this bill finally coming through the parliament. When I saw that it was finally on the speakers list I felt I had to make a contribution, because the issue was certainly on my mind. I remember in 1996 when, as a newly elected member in my first parliament, I was called to give evidence at the Butterworth board of inquiry, and I certainly mentioned on that occasion that the chain of command in the military justice system was hampering outcomes. The unavailability of part-time and Defence Reserves magistrates was certainly hampering the timeliness of these matters being heard. By having full-time, dedicated judges travelling around Australia and the world we can get these things dealt with in a much more timely manner.

I remember one instance when I was working in the Defence Force where it took 18 months to nearly two years to get a matter heard because of the unavailability of the prosecuting officer, the defending officer and the Defence Force magistrate. It took that long to find a date when they were all available and a five-day window in which the matter could be heard. That should no longer occur. If you have a matter that will take a five-day hearing, you can establish that and have it organised for next week if you want to under this proposed system, rather than being at the vagaries of the private practice of people and other private civilian trial matters.

I do not think I have much more to add to the comments of speakers who have gone before, except to say that I will be very interested to see how this goes. I do hope that the minister, when appointing the Australian military judges, particularly the Chief Military Judge, pays strong regard to the experience of people in the military and their understanding of command and control issues in uniform and on operations. I think the effectiveness of the military in this instance overrides the concerns of the opposition and others on the other side of the House as to the fairness vis-a-vis the civilian court system. They will be as fair as possible under a military operating environment, where certain outcomes and imperatives are essential to the effective operations of the defence of Australia and the prosecution of our defence goals and humanitarian relief overseas. So I strongly commend the bill to the House. I hope it is signed off and given assent this year and that it comes into effect pretty quickly to really start the wheels rolling for an effective and fair military justice system.