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Wednesday, 19 September 2007
Page: 174


Mr GRIFFIN (10:55 AM) —It is probably the last occasion I will get to do this, Mr Acting Deputy Speaker Hatton, so I wish you all the very best in your post-parliamentary career and I look forward to keeping in touch. As much as you can enjoy this many years in opposition, I have enjoyed serving with you over that time.


The DEPUTY SPEAKER (Mr Hatton)—Thank you. I have enjoyed serving with you, too.


Mr GRIFFIN —I rise today to speak on the Defence Legislation Amendment Bill 2007, which amends the Defence Act 1903 and the Defence Force Discipline Act 1902 to implement reforms to the summary discipline system. In 2003, Labor initiated a Senate inquiry to hear evidence from ADF personnel and their families about the military justice system. The current process of military justice reform is largely a result of the inquiry’s report, tabled in June 2005, the Howard government’s response to it, and other reviews thereafter. In respect of the summary justice system, the original inquiry report stated its importance to the daily operation of the ADF and criticised its lack of impartiality, which it found threatened service personnel’s rights to fair tribunals. It said:

The committee considers that reform is also needed to impart greater independence and impartiality into summary proceedings. Summary proceedings affect the highest proportion of military personnel. The current system for prosecuting summary offences, however, suffers from a greater lack of independence than courts martial and Defence Force Magistrate processes. The committee therefore recommends an expansion of the right to elect trial by court martial before the permanent military court, and the introduction of the right to appeal summary decisions before the independent permanent military court.

This bill goes some way to addressing those concerns. It represents the next stage of reform, following on from reforms such as the establishment of the Australian Military Court, due to begin on 1 October 2007, and reform to the administrative processes for the handling of grievances. The bill reforms the summary discipline system, which relates to a range of minor offences and matters affecting the operational discipline and efficiency of the services.

Labor’s view is that this bill is a step in the right direction and is supported. The bill provides some key reforms, such as establishing a right in all cases to appeal a summary authority conviction, order or punishment to a military judge of the Australian Military Court and establishing a right to elect trial by a military judge of the AMC for all but a limited number of disciplinary offences. For the remaining offences, the bill would limit available punishments, provide a right of appeal and ensure an automatic review. It also provides an automatic review by a reviewing authority of proceedings that result in conviction of a service offence.

However, while these are positive and important measures, the bill falls far short of a full response to the need for reform to the summary discipline system and, therefore, Labor’s support is not without caveat. For example, the bill seeks to simplify proceedings by allowing that the summary authority is not bound by the rules of evidence, on the justification that this will enable the more expeditious conduct of military justice. Labor supports this in principle, noting that various safeguards will complement this provision, but cautions that the devil is in the detail. We will need to scrutinise carefully the regulations once they are drafted, and monitor and review their implementation. I will come back to Labor’s concerns and, indeed, concerns raised by the Standing Committee on Foreign Affairs, Defence and Trade and the Law Council of Australia in a moment.

Labor’s approach is to ensure that the military justice system competently balances dual objectives. First, it must ensure that the ADF’s operational needs for effective and efficient discipline are met and, second, it must uphold objective and independent standards of justice that the public has confidence in. These high standards are required to protect the rights of defence personnel and ensure their fair treatment. Thus, in respect of this bill, Labor is prepared to be both principled and pragmatic. This, I believe, would be the approach of a Rudd Labor government. I refer to the explanatory memorandum of this bill, which states:

A summary discipline system, by its very nature, will not have the status, level of independence or the judicial attributes of the AMC, established by the Defence Legislation Amendment Act 2006. However, while a summary discipline system should have as many of those attributes as practicable, its primary purpose, as discussed above, is to facilitate operational effectiveness and, through the maintenance of discipline, support ADF operations. Consistent with the British and Canadian systems, the ADF summary discipline system forms one part of the military discipline system which, taken as a whole, must provide the safeguards necessary to protect the interests of ADF members. The Bill’s comprehensive system of elections and appeals in respect of summary authority proceedings provides a direct link to the statutorily independent AMC and in so doing enhances existing safeguards.

I note that the committee’s view was likewise realistic. The committee noted the need for the bill’s speedy enactment, concluding that concerns about the bill need not impede its passage, subject to an amendment to the rules of evidence provision, which the government will move today, although not in the exact form proposed by the committee.

The committee made three recommendations. The first was to strengthen the recognition of the rules of evidence by providing statutory guidance that the summary authority rules should simplify but not depart from the fundamental principles contained in the rules of evidence. This is mostly met by the government’s amendment. Labor supports the intention of this amendment, which is to reinforce the application of the fundamental principles of the rules of evidence in summary proceedings. The second recommendation was that the government comprehensively consult on any future proposed legislation that makes significant changes to the military justice system. This includes consultation with the Law Council of Australia. On this point the committee observed the need for close monitoring of the legislation and of the operation of the Australian Military Court. These are important points supported by Labor. If this government is serious about reform and about doing it well then it will take this recommendation on board. It is not in the interests of defence personnel for the government to speedily cobble together legislation and rush it through parliament without proper consideration. The third recommendation was that, subject to the first recommendation being implemented, the bill be passed.

Labor will continue to be vigilant about a range of concerns in this bill. The provision that states that the summary authority is not bound by the statutory or common-law rules of evidence is the most problematic. The government is introducing today an amending note to proposed section 146A that the summary authority must comply with the rules of natural justice and other basic principles of the rules of evidence. The Law Council understandably is concerned that this note in the bill does not go far enough. However, for now, Labor is prepared to offer careful support, noting that complex rules of evidence being carried out by often non-legally trained summary authorities is not an ideal balance of the two objectives I referred to earlier: efficient operational discipline and fairness for the individual. There are also procedural safeguards—namely, the automatic review by a reviewing officer and the right of appeal to the Military Court. Labor is committed to monitoring this issue. There will be a couple of bites at this cherry, and further down the line we will need to review how effective the simpler evidence framework has been in practice.

It has been suggested that a future reform could be to consider whether the full evidence framework should again apply upon appeal to the Military Court. I would suggest that this holds some merit. The Law Council has also expressed concern that the bill does not provide a right for the Director of Military Prosecutions to appeal an interlocutory judgement or order to the Defence Force Discipline Appeal Tribunal. Mr Willee of the Law Council has said that this is ‘a simple thing’ and would ensure procedural fairness. This proposal is also worthy of future consideration, and relevant, in light of the issues raised in August this year in the case of the senior army officer charged over the alleged loss of highly sensitive Commonwealth Games security plans. The Federal Court refused the government’s application for a declaration that would reverse an earlier ruling by a court martial judge advocate that the officer’s record of interview was inadmissible because it was conducted by civilian investigators. There is also a concern that some disciplinary offences will remain outside of the right to elect trial by the Australian Military Court.

I want to briefly discuss the committee’s findings so far on the progress of military justice reform. The second progress report, tabled on 29 March 2007, noted some progress with reform of the ADF discipline system, including the establishment of the Australian Military Court and improvements to the redress of grievance process, but criticised some continuing problems that were brought to light by reports into the ADF’s investigative capability and the learning culture in training establishments and by inquiries into the sudden deaths of Private Jacob Kovco and of Trooper Angus Lawrence. The committee’s third progress report, tabled very recently, in September 2007, found that some longstanding problems continue but allowed that these will require time to address. It also commended some progress on complaint management systems.

I flag these progress reports for two reasons. The first is to emphasise that Labor recognises that there is still much more to be done and this bill is just one step along the way. Arguably it could have gone much further. The second is to draw the House’s attention to additional comments by Labor committee members in the committee’s most recent progress report about a broader aspect of Defence Legal’s conduct that has so far escaped proper examination. The growing tendency of the Department of Defence under the Howard government has been towards protracted and expensive legal proceedings. Its litany of litigation is in disarray, and opinion is growing that the government is pursuing a vexatious approach to Defence litigation cases.

The third progress report highlights a number of cases that grossly fail the government’s own so-called common-sense test, such as the discrimination case involving the suicide of Eleanor Tibble, where the government’s cost as at 6 February 2007 had exceeded $1.24 million, or the case involving the Albany Port Authority whereby, after a long and drawn out dispute, Defence admitted liability and agreed to pay $5.25 million to the authority for the cost of removing unexploded bombs plus $1 million towards the authority’s legal costs. Justice Templeman in the Western Australian Supreme Court expressed strong concern about the Commonwealth’s conduct, noting that it was unacceptable that the Commonwealth ‘should be profligate with public funds’ rather than seeking to resolve a practical problem efficiently.

In another area, there has been some recent media attention about HMAS Melbourne cases relating to the naval collision in 1967 of the HMAS Voyager and HMAS Melbourne which killed 82 people aboard Voyager. It is considered the worst peacetime naval accident in Australia’s history. A court recently awarded a HMAS Melbourne claimant $1.24 million in damages. A firm that is currently acting for 29 plaintiffs recently estimated that the average length of trials to settle matters is seven years, and the total legal costs of these trials are between $750,000 and upwards of $2 million.

This is a significant and unacceptable budget risk and frankly an area where the government is failing to meet its responsibilities to the public as a model litigant. In February 2007, approximately 65 per cent of Defence’s litigation cases had been active for more than one year. More than 140 cases had lasted for more than five years. These cases involve such matters as asbestos litigation and F111 deseal-reseal compensation. Yet, when asked at Senate estimates in February 2007 to report on the average cost of litigating matters and the percentage of cases finalised before judgement, Defence replied that it was unable to devote the time and resources to collect this information. Surely resolving these compensation cases in a fair and timely fashion is in the public interest.

In short, Labor remains vigilant about ongoing reform to the military justice system. There is still much to be done to provide a best practice military justice system and the onus is on the ADF to implement these reforms effectively and swiftly, and to demonstrate that military justice can and will be conducted in a transparent and fair way. A Rudd Labor government would be committed to continuing this process of reform and making adjustments as the need becomes clear.

As a broader issue, Labor is concerned that Defence dispenses justice in a range of ways that impact upon the lives and wellbeing of former and serving Defence personnel. All of these processes must be open to rigorous public scrutiny. Defence personnel deserve no less; the public deserves no less.