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Wednesday, 29 November 2006
Page: 113


Mr MELHAM (5:34 PM) —My attitude to the Defence Legislation Amendment Bill 2006 can be summarised as follows: if someone puts on a uniform for their country they are entitled to a rolled-gold system of justice, not a second-rate system of justice. I think that, for too long, some compromises have occurred that, frankly, are unacceptable in our modern society. There have been a number of inquiries over the past decade and a number of publicly aired complaints by former and serving personnel, their families and other community members which suggest that the military justice system is flawed. I am not going to name them, but there have been a number.

Each of the inquiries did identify flaws in the ADF military justice system and processes, and they recommended changes. Whilst some of the recommendations have been acted upon, there also appears to be an element of resistance within the ADF which views the military justice system as sound, even if at times it has not been applied as well as we would like. I repeat my view: if you put on a uniform then the least your country can do is provide you with a system of justice that is not a second-rate system of justice. I do not believe that the putting on of a uniform allows the defence forces to compromise on basic principles that in many ways really need to mirror civilian principles.

The Law Council of Australia put forward a submission which I thought identified a number of areas that were worth consideration. Their submission is summarised as follows:

  • The structure of the Australian Military Court may lead to problems with respect to the independence of the court and the attractiveness of the offices of the military judiciary;
  • The limitation of terms to 5 years is unlikely to overcome these problems and may further undermine the perceived independence of judicial officers ...

I interpose here that perception is important. I think that, in terms of the military, it is important that there is a perception which leads to confidence in the system. That is not to say that actual independence is compromised, but if there is a perception that it is compromised that needs to be addressed. The Law Council also says:

  • The minimum rank of Military Judges, compared to the minimum rank of the Director of Military Prosecutions, may undermine the perception of the importance and authority of judges in the Military Justice System;
  • Compulsory retirement of Military Judges and the limited scope for continuing practice while serving part-time may limit the attractiveness of the office of Military Judge and diminish the pool of suitable candidates;
  • Staffing arrangements and resources for the Australian Military Court should be set down under legislation; and
  • The possible extension of 5-year terms may lead to the perception that Military Judges are beholden to the military chain of command or political appointers.

Each of those might not seem important to ordinary members of the community, but they are important because they go to the heart of whether there is perceived independence of the judicial officers involved in the system.

I understand that there are a number of amendments that will be moved to the legislation when we come to the consideration in detail stage, and those will clarify that the Australian Military Court is a court of record. I commend the government on the way it has picked up many of the recommendations of the Senate committee and the subsequent comments that have led to these amendments that will be put before the parliament for this bill.

This is not an area where either side of politics has the high moral ground. This is not an area where either side of politics should politicise. This is an area where, as a parliament, both the government and the alternative government should come together to ensure that there is a piece of legislation that passes this parliament that has the overwhelming support of this parliament in sending a message to the community and to those in our armed forces that the parliament is as one on these issues. So I think it is important that the government has responded to a Senate inquiry and evidence that at some times exposed some problems with the way the system was operating.

But I also think that senior people responsible for this area within the armed forces should also accept that you cannot live in the past—you cannot hang onto a culture that is out of sync with community standards and community values and that does not allow your service personnel procedural fairness and a proper consideration of matters that might be heard relating to them. Yes, sure, there are instances where people might not be found guilty under the system. That is not the end of the world. People should be given the benefits of a proper process and reasonable doubt in relation to these matters. I understand that my colleague at the table, the member for Bruce, will use some anecdotal examples—and I do not want to steal those—from the past.

I think it is a good thing that these changes have resulted from an inquiry that was conducted by both sides of politics in the Senate in a very conscientious and respectful way for the services. It seems to me that you get yourself into problems if you go into denial mode and seek to justify practices on the basis of: ‘That’s the way we do business. If we didn’t do it this way, it would create problems for us, or it would be too much of a hassle.’

The second reading amendment to the Defence Legislation Amendment Bill 2006, which has been moved, is critical of the fact that the Australian Military Court is ‘not in line with chapter III of the Constitution as recommended by the Senate Foreign Affairs, Defence and Trade References Committee report of June 2005’. It goes on to say:

... 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 long unsatisfactory compromise which denies the true independence, fairness and objectivity essential for the proper functioning of the military justice system.

I think that is a legitimate criticism. The government have made a policy decision in terms of the path that they want to proceed down. Given that the government have the numbers in the Senate and in the House of Representatives, it is reasonable to suspect that they will get their legislation through as it is and with the amendments they propose. But, quite frankly, this means that the legislation remains a work in progress. It is inevitable that, at some stage in the future, the parliament will have to revisit the operations of the Australian Military Court, and it should do so on the basis of evidence of the way it operates.

I know that the shadow minister at the table, the member for Bruce, will have some things to say about the bill, but the point I want to emphasise is that those of us who have come from a legal background, as I have—before I came into parliament I was a legal aid solicitor and a public defender, a legal aid barrister, defending people charged with serious criminal offences—bring to bear our experience of a civil system that has served us well. I do not accept the argument that there should be differential principles. I know that there might be a need to change the practical applications because of the way things work—people have to go to battlefields et cetera; that is all explainable—but inferior systems that do not inspire confidence because of a perception of a lack independence are not, in my humble opinion, systems that should be defended. We have had an argument, and it is not military one, about the way David Hicks has been dealt with to date and how it is proposed he be dealt with. In my view, it is unacceptable because a second-rate system of justice is being proposed. American personnel cannot be dealt with in the way that David Hicks is being dealt with. They are dealt with through their civil courts.

There is nothing more that I want to say on the legislation. A lot has been said by previous speakers, and I know that subsequent speakers will have a few other things to say. We say these things in good faith, with no malice towards our service personnel. Given the number of reports that we have had, let us learn from the mistakes of the past and not repeat them. Let us improve the system instead of accepting one that we are just going to tamper with and that, on the face of it, looks as though it is fixing the problems of the past but is not. That is where I leave my question mark on what we are getting in this legislation compared to what we could be getting as recommended by the Senate committee.