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Wednesday, 29 November 2006
Page: 115


Mr GRIFFIN (5:49 PM) —I never like following the member for Banks when it is about legal matters in particular or about matters in relation to the Indigenous community or human rights because he always knows a lot more about these issues than I do. But, not to worry, I am joined by the minister at the table, the member for Moreton. I like following him because I always know more about things than he does. That is certainly my experience anyway and the experience of others, so they tell me.

I rise today to speak on a very important bill—the Defence Legislation Amendment Bill 2006. I support the amendment moved by the shadow minister for defence and congratulate him on his very thoughtful and thorough contribution to this debate. The military justice system exists to maintain discipline and to reinforce the chain of command in the Australian Defence Force. Australia’s military justice system has two distinct but interrelated elements: the discipline system and the administration system. They provide the framework for investigation and prosecution of offences committed under the Defence Force Discipline Act 1982 and the maintenance of professional standards in the ADF and the investigation of certain occurrences, such as accidental deaths of ADF personnel.

In a submission to the Senate inquiry into the system conducted between 2003 and 2005, the then Chief of the Defence Force, General Peter Cosgrove AC, MC, explained:

Establishing and maintaining a high standard of discipline in both peace and on operations is essential for effective day-to-day functioning of the ADF and is applicable to all members of the ADF.

He went on to say:

... the unique nature of ADF service demands a system that will work in both peace and war.

Without an effective military justice system, the ADF would not function. Due to the importance of this system to our defence personnel, I am honoured to speak on the Defence Legislation Amendment Bill 2006 today. I will be addressing the technicalities of the bill soon but, firstly, I want to briefly recount a part of Australian history that I believe is relevant to our discussion today—that is, the trial of Harry ‘Breaker’ Morant and its surrounding controversies.

Breaker Morant was a popular knockabout Australian character who found his way to the Boer War. Morant had immigrated to Australia in the early 1880s and settled in outback Queensland. Over the next 15 years, working in Queensland, New South Wales and South Australia, Morant made a name for himself as a ‘hard-drinking, womanising bush poet and gained renown as a fearless and expert horseman’. In 1899 he volunteered for military service and in 1900 was sent to Transvaal in South Africa as part of the South Australian Mounted Rifles. But in early 1902 he found himself on trial. The main charges were that between July and September 1901 Morant had incited his co-accused, Lieutenants Hancock and Witton, and others under his command to murder some 20 people, including the Boer commando Visser, a group of eight Boer POWs, Boer civilian adults and children, and the German missionary, Hesse.

Morant’s involvement in the deaths of Visser and the eight POWs has never been in dispute, since he openly declared during the trial that he had ordered them to be summarily executed. However, throughout the proceedings he staunchly maintained that he had done so because of his superiors’ orders to take no prisoners and because of the provocation occasioned by the killing and post-mortem mutilation of one of his closest friends. He also insisted that he had been certain that those he executed had been members of the party that had killed Hunt and defiled his body.

I do not want to address any more of the actual circumstances surrounding the case. It is the validity of the court martial that remains the main issue. The disappearance of the original trial records has prevented a full investigation of this matter for over a century. In their absence, historians have been forced to rely primarily on Witton’s memoir, which is very detailed but must necessarily be considered a biased view. The early stages of the trial were, as noted above, comparatively relaxed affairs by military standards. The accused were not kept under close arrest and were often allowed to move about the fort and the town. On one occasion, Witton was even escorted to a cricket match—much to the surprise of the court president, who was also in attendance. Unknown to Witton, the judge had that very day secretly sentenced him to death by firing squad.

In both the Visser and the eight Boers matters, none of the accused was informed of either the verdicts or the sentences until well after the trial. There was apparently no attempt to conduct any form of forensic examination of the bodies of the alleged victims and all the so-called evidence about the killings was verbal testimony collected long after the events. The vast bulk of this testimony was uncorroborated or hearsay evidence obtained during the preceding court of inquiry, much of it apparently gathered from disaffected former carbineers who, if Witton is to be believed, harboured considerable animosity towards Morant and Hancock.

The last phase, the hearing of the Hesse matter, was in stark contrast to the relatively relaxed atmosphere of the earlier phases. Suddenly and without warning, just after the conclusion of the eight Boers matter, the accused were placed under close arrest, put in irons, removed from Pietersburg and taken under heavy guard to Pretoria. This final phase was also conducted in camera, whereas the earlier parts of the trial, in Pietersburg, had been open to the public.

The outcome of the trial was a foregone conclusion. Morant and Hancock were found guilty and sentenced to death by firing squad. Witton was also sentenced to death but this was commuted to life imprisonment by Kitchener. After signing Morant’s and Hancock’s death warrants, Kitchener disappeared on tour, thus removing himself from any attempt to secure their reprieve. Shortly after 5 am on 21 February 1902, Lieutenants Harry Morant and Peter Hancock were led out to be executed by firing squad. Both men refused to be blindfolded. Morant gave his cigarette case to the squad leader and his famous last words were:

Shoot straight, you bastards. Don’t make a mess of it.

It was not until a month later that the news reached Australia of the trial and death of Breaker Morant.

Apart from my love of Australian military history, why bother recounting this story today?


Mr Snowdon —Good question!


Mr GRIFFIN —I am joined by the member for Lingiari, and of course it is a good question. The story of Breaker Morant teaches us a few lessons that are extremely relevant to the bill before us today. It is a controversial story and a story that is from a completely different time with different circumstances to those of current cases. That said, the lessons I draw from it are relevant to my thoughts on Australia’s military justice system. It teaches us the importance of a fair and impartial trial for military personnel. Impartiality and fairness must be both actual and perceived. It teaches us that arbitrary non-reviewable decisions imposed on personnel by the system will reduce the public’s confidence in the military justice system. It also demonstrates what can be seen as a wide gap between justice afforded to military personnel and that afforded to normal civilians. This is something we need to keep in our minds when considering the adequacy of the bill before us today.

Why are we here today? We are here today because it has become widely recognised that Australia’s military justice system is not delivering the results that it should. Over the past decade, a number of court challenges and publicly aired complaints brought by former and serving personnel, their families and other community members have suggested that the military justice system is flawed. Over the last decade there have been a significant number of official inquiries into, or related to, Australia’s military justice system. These have included the 1997 Study into the Judicial System under the Defence Force Discipline Act by Brigadier the Hon. Mr Justice Abadee; the 1998 Commonwealth Ombudsman’s Own motion investigation into how the ADF responds to allegations of serious incidents and offences; the 1999 Military Justice Procedures in the Australian Defence Force by the Joint Standing Committee on Foreign Affairs, Defence and Trade; the same committee’s 2001 Rough justice? An investigation into allegations of brutality in the Army’s Parachute Battalion; the 2001 Burchett QC Report on the inquiry into military justice in the Australian Defence Force; and the 2002-03 Western Australian Coroner’s investigation of fire onboard HMAS Westralia.

Each of these inquiries identified flaws in the ADF military justice system and processes and recommended changes. The last inquiry that was held was the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the effectiveness of Australia’s military justice system. I quote from some of the committee’s conclusions:

The committee is unanimous in its view that the military justice system has reached a watershed in its development. It has been some twenty years since the last wholesale review of the discipline system. During that same period, as described by the Inspector General, the civilian administrative law has undergone enormous change. The military system has attempted to keep up with this pace of change and has done so quite well but it has the appearance of having been largely reactive and piecemeal. There have been numerous initiatives but these lack a coherent and an independent structure.

They also concluded:

It is in the public interest to have an efficient and effective military justice system. Just as importantly, it is in the interest of all servicemen and women to have an effective and fair military justice system. Currently they do not.

The committee commented on reforms undertaken by the ADF leading into the review, saying that they recognised:

… the measures introduced over the last decade by the ADF in response to many of the problems that have again been identified. The fact that these problems continue to be highlighted in this report demonstrates those initiatives are not fully resolving many critical issues.

These were the unanimous conclusions of the committee, from which no government member on that committee dissented. From these conclusions a number of recommendations were made. This bill today forms part of the government’s response to some of these recommendations. It 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. The bill makes three principal 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 CDF to set up what is titled a ‘Chief of Defence Force Commission of Inquiry’. It also provides for changed appeals provisions, categorises offences for the purpose of trials and makes a number of other consequential amendments, including transitional arrangements.

This bill would establish a permanent Australian Military Court under the Defence Force Discipline Act 1982 to replace the current system of courts martial or Defence Force magistrates. As we have heard, the government’s model for the court, as proposed in this bill, does the following: it creates the Australian Military Court within the Defence Discipline Act; its judges must be serving officers of legal experience; reappointment will only occur in exceptional circumstances; on conclusion of their term judges are to be compulsorily retired—if they reach retiring age during 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; and, finally, staffing resources are to be supplied from defence members and public servants employed under the Public Service Act.

There is no way that this new court will be independent of the chain of command, nor is it equivalent to what the Senate committee had proposed. The new court is in fact not that different from the system that it seeks to replace. In a report on this legislation, Labor senators commented on the form that this court was to take. They said:

Labor’s principal concern is that the legislation completely ignores the substantive basis of the committee’s recommendation for a Military Court which was that such a court should have all the attributes of a court set up under Chapter III of the Constitution. The assertion by the government that this bill implements the committee’s recommendation is therefore at best misleading, and deliberately so. The Military Court proposed in this bill has none of the attributes of a civilian court, and as expressed in evidence by witnesses, is nothing other than a re-badging of the current unsatisfactory tribunal system. The shortcomings listed in the committee report form the basis of this judgement, to which must be added the power and process of appointment, which remain totally within the military, and the requirement that all appointees remain purely military.

Furthermore, they noted that the Judge Advocate General had reservations about the court. They said:

In evidence to this committee, the Judge Advocate General (JAG) questioned the conduct of criminal trials by Service tribunals. He was concerned because they ‘are not established under Chapter III of the Constitution, and might not be thought to afford the protections provided by those courts’. He mentioned the possibility of the most serious charges being laid against Australian Defence Force (ADF) members and the inappropriateness of the proposed AMC having jurisdiction over crimes such as rape and murder. The Law Council of Australia added weight to the JAG’s argument. It noted the potential for the AMC to be involved in ‘very serious matters’ and gave the example of any possible charges arising out of the Kovco inquiry and the shooting of the Iraqi security guards by Australian troops. It questioned whether the High Court would uphold a tribunal’s constitutional entitlement to adjudicate these issues when it bears a greater resemblance to the Administrative Appeals Tribunal (AAT) than a court. It concluded:

This increases pressure for the inevitable challenge to be brought on the grounds of fairness and impartiality, challenges which have often been brought in the past and are likely to be brought with increasing frequency if this legislation is passed.

There are also concerns that the new court is more like a tribunal, a tribunal that is well and truly within the military’s chain of command. The Judge Advocate General in his submission to the committee inquiry stated:

The AMC 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 or murder) against members of the ADF at some stage. The AMC would be the only Australian court which would have jurisdiction. The notion that such charges would be dealt with by a body described as a “tribunal” ... is extraordinary.

In legal terms there has long been a debate about the authority of military tribunals. These tribunals have been challenged in the High Court for their lack of judicial independence and impartiality. This concern was canvassed by the recent inquiry into this legislation. At this hearing the view expressed by the Judge Advocate General is that the closer such a tribunal can be aligned with the arrangements for a court established along the lines of a chapter III court the less likely a challenge may be.

A hearing has been set aside in February 2007 for the full High Court to hear a challenge to the validity of current service tribunals. Therefore, it could be said that this proposed legislation does nothing to save the AMC from a constitutional challenge; instead it threatens the effectiveness and independence of the court.

So instead of this government introducing real reforms we have here only a half-hearted attempt at developing a new Australian Military Court. Unfortunately, the government has ignored the excellent work of the Senate committee in its initial hearing on military justice and its subsequent hearing into this legislation. This court is in no way independent as claimed by the government. While the bill does take some steps in the right direction, we believe they do not go far enough.

I would like to make a brief comment on the Chief of Defence Force commission of inquiry. Such inquiries will be mandatory, and the appointee to conduct them will be a civilian. This is in contrast to the government’s attitude on the development of a military court, where only ADF personnel can serve. We largely view this as a positive mechanism that can aid Defence in getting to the bottom of some of the more tragic incidents that have occurred in the past, such as suicides, bastardisation, harassment and accidental deaths.

I support the amendment moved by the member for Barton today. Labor is reserving its right to further examine the amendments proposed today with a view to potentially rejecting some or suggesting further amendments. I find it amazing that for legislation of such importance this government is arrogant enough to introduce a bill so shoddy that a government chaired committee has shot it down in its original form. Then it presented its amendments to the bill only a few hours ago, leaving no time for proper scrutiny of these amendments. This is incompetence at best.

There is no doubt that the bill does contain some positive initiatives, which Labor does welcome as a step in the right direction. However, there is also no doubt that this bill does not go far enough and fails to deliver real reform. This government had a great opportunity here and yet again it has let it pass. Instead we have seen the same level of administrative incompetence and sloppy legislative processes that we are all becoming increasingly accustomed to from this government.

The provision of a military justice system that is based on fairness and impartiality is not just an issue of justice; it is also an issue of national security. In my capacity as shadow minister for veterans’ affairs I have had the privilege of speaking to a wide variety of veterans across the country. One resounding message I always receive from the veteran community is that the way we treat and look after our service personnel is directly related to the quantity and quality of recruitment and retention in the ADF. This point relates directly to the topic we are discussing today—namely, the administration of Australia’s military justice system.

One of the biggest strategic challenges that we now face in the area of defence is that of recruitment and retention. If we want to improve this we must improve the conditions for our serving personnel. It seems logical to me that one of the best ways to do this is to provide a fair and impartial military justice system that affords a level of justice that is equal to that enjoyed by the rest of the population.

We want potential applicants to be confident that when they join the ADF they are joining an organisation where they will be offered the same standard of justice that they receive while they are a civilian. We also want parents who have children contemplating a career to not have to fear that their child will be the subject of injustice, as has too often happened in the past. As veterans of our ADF constantly tell me, the way we treat our service personnel during and after their career will have one of the biggest effects on the levels of recruitment and retention.

The crux of the matter really is that our ADF members should be afforded all of the protections offered to normal civilians. Justice for one should be justice for all. We should not be implementing reforms that will leave Caesar to judge Caesar.

The handling of this bill by the government has been a disaster. They have refused to implement the recommendations of the Senate committee’s highly respected report into the effectiveness of our military system. They have ignored the concerns of their own members. They have been forced to add last-minute amendments to the bill, largely due to their misunderstanding of the issues. They have not consulted widely enough on the bill.

This haphazard approach is typical of this government’s approach to matters affecting our national security. Whenever it comes to the armed forces, the government are extraordinarily quick to wrap themselves in the flag and be photographed with them. They hope that photos with our service men and women will somehow help them maintain a myth that they are masters of national security. Well, these so-called masters of national security have provided us with the biggest national security scandal in our history with the AWB and then offered the defence of incompetence and negligence as if that were somehow acceptable. They have led us into Iraq, now largely a civil war, whilst withdrawing prematurely from both Afghanistan and East Timor despite Australia’s more direct strategic interests in these areas. They have experienced constant problems delivering defence capabilities, ensured we will have an air combat capability gap, provided little to no direction for our strategic outlook despite a rapidly changing strategic environment and used and abused the ADF and veteran population for largely political purposes. Finally, they have now failed to deliver on a once-in-a-lifetime chance to deliver real military justice reforms. Instead, we see a bill that they could not get right the first time and that is now only a half-hearted attempt at addressing the issues.

We will be further examining the amendments provided by the government today in the hope that they have corrected some of the bigger flaws of this legislation. The Australian people deserve better than this. The service men and women of this country deserve better than this. They deserve a government that is less show and more results when it comes to national security and the ADF. I support the amendment moved by the shadow minister for defence.