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Wednesday, 29 November 2006
Page: 121


Mr SNOWDON (6:09 PM) —While he is still in the chamber, I want to thank my colleague the member for Bruce for his erudite contribution on the Defence Legislation Amendment Bill 2006. He outlined very succinctly and in very clear terms the case that we have and our concerns over this piece of legislation, which implements changes to the military justice system that are contained in the government’s response to the Senate Foreign Affairs, Defence and Trade References Committee report of 2005 entitled The effectiveness of Australia’s military justice system. This bill will see the creation of a new Australian Military Court to replace courts martial and the Defence Force magistrate, create military juries and make a number of procedural changes. The bill also provides for a new Chief of Defence Force commission of inquiry to be undertaken in the sad event of a suicide or a death in service of Australian Defence Force personnel.

I am happy to support reforms to the military justice system, but I am concerned about the inadequacies of this legislation. I refer members of the chamber to the second reading amendment which has been moved by the shadow minister, which outlines very clearly the concerns that we have about this piece of legislation—firstly, that the establishment of an Australian Military Court and the provisions for that establishment are 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; and, secondly, that 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 longstanding unsatisfactory compromise which denies the true independence, fairness and objectivity essential for the proper functioning of the military justice system.

This bill could do a lot more and go a lot further in ensuring that those who serve in our defence forces receive equality in terms of access to the justice system and the independence, fairness and objectivity that we value in our civilian legal system and that we take for granted but that clearly is not available to members of the Australian defence forces. This bill is a disappointment for those—some of whom are in this chamber—who have sought to develop a military justice system that is appropriate to the needs of Australian Defence Force personnel, is fair and recognises the unique circumstances of their working environment, the chain of command and their obligations to the Australian community.

I note that the efforts we have made in trying to reform the military justice system well and truly pre-date the Senate committee’s 2005 inquiry. Indeed, I was a member of the Joint Standing Committee on Foreign Affairs, Defence and Trade when the committee inquired into the military justice system and released its report Military justice procedures in the Australian Defence Force in 1999. I was also a member of the Defence Subcommittee of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade when it undertook its inquiry Rough justice? An investigation into allegations of brutality in the Army’s Parachute Battalion. The report was made in 2001.

In the consideration of the Rough justice report, Labor members of the Defence Subcommittee wrote a dissenting report. In that report we expressed our concern about the military justice system’s ability to operate fairly, equitably and in a timely manner. While the incidents that the subcommittee was asked to investigate were most disturbing, in the opinion of the authors of the dissenting report—me included—the most critical issue was that confidence needed to be restored in the military justice system. I remain of the view that we need to do something to ensure confidence is restored in the military justice system. I do not believe this bill, despite whatever merits it may have, goes far enough to do so.

I want to pick up on the observations of the previous speaker, the member for Bruce, and his concerns about the shoddy way in which this piece of legislation has been dealt with and the government’s own amendments which have been tabled today. This reflects the shoddy approach that has been adopted by the government in its haste to bring this legislation into the chamber. This legislation is clearly imperfect, clearly needs a lot more work and clearly needs greater consideration by this chamber.

But, in light of the more recent reports produced by the Senate committee, I share the concerns of the shadow minister for defence that the government’s response to the 2005 Senate committee report did not fully pick up the recommendations that the committee made. Of course, that is the government’s prerogative, but they would want to have a decent rationale for doing so. And, despite the extensive work undertaken by the Senate committee into Australia’s military justice system—following on, as it has done, from the two reports I referred to previously—and the recommendations that the Senate committee made toward developing a more independent judicial system for the Defence Force, the government have chosen to ignore the very foundation of the committee’s findings and reject some of its key recommendations.

The committee noted that all of its recommendations were:

… based on the premise that the prosecution, defence and adjudication … should be conducted completely independent of the ADF.

This will not be the case if this legislation is passed. The government’s response rejected a number of the recommendations made by the committee that sought to achieve this level of independence. One such recommendation was that the Australian Military Court be set up as an independent court under chapter III of the Constitution. Under this proposal, the court would have stood independent of the defence chain of command—indeed, of the executive branch of the government itself—as other Commonwealth courts do. It is an integral part of the separation of powers in our Constitution and something which we in the community normally take for granted.

I want to express my strong support for the second reading amendment moved by the shadow minister and the concerns that he has expressed, and which I have mentioned previously, about the court not being established as a fully independent court under chapter III of the Constitution; that appointments to the military jury system will be restricted to serving military personnel—that is a serious source of concern; that the new court will not be fully separate from the defence chain of command; and the denial of true independence, fairness and objectivity essential to the proper functioning of the military justice system. I would have thought that the need for a military justice system that is fair, timely and treats those before it equally goes without saying.

The government notes in its explanatory memorandum to this bill that Defence Force personnel find themselves in a unique situation—and they do. The government tells us that the military justice system is one in which:

A knowledge and understanding of the military culture and context is essential. This includes an understanding of the military operational and administrative environment, the unique needs for the maintenance of discipline of a military force in Australia and on operations and exercises overseas. The AMC must have credibility with, and acceptance of, the Defence Force.

Mr Deputy Speaker, it will come as no surprise to you that I can appreciate these requirements.

It is, of course, a time of difficulty, even stress, for the Defence Force in overseas deployments and with the concerns about recruitment and retention because of the obligations they are undertaking on our behalf. I would have thought that under those circumstances addressing military justice issues would be one area requiring the attention of the government when considering these personnel issues—to ensure that the military justice system was fair, treated people equally and was independent. You would think and hope that it would be an attraction to potential recruits to the Australian Defence Force. But what we are fundamentally on about here—certainly what I am on about—is judicial process; we are talking about basic protections and rights held by all Australians.

When Australians join the Defence Force to serve their country, they and their families should not be expected to give up their rights as citizens that they enjoy and that they are charged with protecting. Why is it that we treat them so differently in that regard? When they are involved in an incident drawing them to the attention of disciplinary and administrative processes—no matter what their capacity in their involvement with those processes—they should not be expected to surrender the right to fair, equitable and timely treatment.

The protections we as civilians enjoy in the courts are fundamental rights; they are fundamental to the proper functioning of the justice system. They are fundamental rights that should be afforded to Australian Defence Force personnel. As I have noted, applying these standards to the military justice system has been the goal of a number of inquiries of this parliament. It has been a personal objective of mine, and I know it has been one for other members on this side of the chamber, certainly since the late 1990s.

A major innovation in this bill is the move from the present system of courts martial and Defence Force magistrates to a new Australian Military Court. The establishment of a military court was discussed by the Senate committee in its report. It was considered necessary to establish an independent system because:

Having considered the evidence before it, the committee holds grave concerns about the ADF’s capacity to conduct rigorous and fair disciplinary investigations.

The Senate committee’s recommendations were:

... the Government amend the Defence Force Discipline Act 1982 to create a Permanent Military Court capable of trying offences under the DFDA currently tried at the Court Martial or Defence Force Magistrate Level.

And:

The Permanent Military Court ... be created in accordance with Chapter III of the Commonwealth Constitution—

as I have already outlined, and—

Judges should be appointed by the Governor-General in Council;

Judges should have tenure until retirement age.

The committee recommended that judges appointed to the permanent military court should be required to have a minimum of five years recent experience in civilian courts at the time of appointment.

The government, as we know now, rejected this recommendation. By and large this was on the grounds that an independent military court established like a civilian court would be unable to meet the requirements of the ADF. The government’s argument was that the ADF needs:

… [a] a military discipline system, the object of which is to maintain military discipline within the ADF. It is essential to have knowledge and understanding of the military culture and context.

It continued:

The Chapter III requirements are not consistent with these factors, and the Government does not support the Chapter III features for a military court.

Labor senators in the Senate committee’s inquiry into this bill noted the evidence of the ADF’s Judge Advocate General that there is some concern about:

… the conduct of criminal trials by Service tribunals ... because they ‘are not established under Chapter III of the Constitution, and might not be thought to afford the protections provided by those courts’.

The proposed new military court to be established by this bill is instead to comprise a chief military judge with two permanent military judges appointed for five years—unlike judges under chapter III, who are appointed with tenure—and a panel of part-time judge advocates. All appointees are required to be legally qualified for military service and are to be appointed by the Minister for Defence from a list, selected by a special committee which in turn is to be selected by the CDF.

That is not independence; it is far from it. You could not argue under those circumstances that those members of this court could be seen as independent. It is true that this position in the ADF requires an appreciation of the culture and of military discipline, but it is not beyond the wit and wisdom of people to determine that, understand it and come up with a set of circumstances which provide protections for those matters but at the same time provide a court system which gives members of the ADF, as I said earlier, equal and fair treatment at a standard that would be applied in the civilian community. It is hard to make sense of any argument that ADF personnel should not be entitled to the same legal protections that civilians are when they face the courts. I cannot imagine why that should be the case.

The bill also proposes a Chief of Defence Force commission of inquiry. In the sad event of a suicide or death in service, a commission of inquiry will be mandatory and a civilian will be appointed to conduct it—quite different from the proposals for the court. In the last decade, 79 ADF personnel have taken their own lives. This is both distressing and appalling. Unfortunately, bullying and harassment seem to have been common elements in those suicides—those untimely, very unfortunate and sad events. Having an improved system of investigation truly independent of the chain of command is a very good start. We know that there has been some degree of dissatisfaction with the outcomes of the military justice system in investigating suicides and deaths in service and in implementing measures to prevent these tragedies from occurring in the future. It is interesting that the government is prepared to support a move towards civilian based commissions of inquiry for these very serious issues but patently unwilling to establish the Australian Military Court as a chapter III court, providing similar independence and ensuring that civilians and people with experience in civilian courts are engaged.

Nonetheless, the efforts to improve the way suicides and deaths in service in the Defence Force will be dealt with have my strong support. I hope that, on reflection on the shoddy way in which this piece of legislation has been put together, the government will reconsider its approach and come to understand that we on this side of the chamber—and, indeed, those senators in the other place—have a common interest with the government on this. We are not trying to make political points; this is about trying to provide a system which is fair, reasonable and just for Australian Defence Force personnel. I would urge members of the chamber to support the amendment which has been moved by the opposition.