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Wednesday, 19 September 2007
Page: 177


Miss JACKIE KELLY (11:08 AM) —It is with great interest that I speak on the Defence Legislation Amendment Bill 2007. As a former legal officer in the defence forces I have watched a number of Defence matters now from both sides, within the military and subsequently from within the government. To give you one example, when I was first elected I was on the House of Representatives Standing Committee on Environment, Recreation and the Arts, and at that time that committee was finishing off a performance audit from the Auditor-General’s Audit report No. 31 of 1995-96, looking at the environmental management of Commonwealth land, site contamination and pollution prevention.

I had actually been working at the coalface on a number of those issues in terms of paint shops that had spilled over onto neighbouring land and various other issues where the Commonwealth could have been liable. What we wrote up as legal officers and what was eventually presented to the committee to me as a member of parliament were extraordinarily different. Obviously, in the chain of command, a lot of things happen in order to mitigate blame within the Defence Force.

The Defence Force has a culture of ‘can do’. It likes to be permanently right. It is very difficult for someone in uniform to say that an error was made, and I think the member for Bruce iterated a number of those cases where there are still some outstanding matters. In fact, one of the outstanding matters is in respect of Russell Vance. Just to give you a picture of this, I will quote from a Bulletin article from 2005:

Vance was once a high flier. The son of a distinguished naval officer, Vance did what came naturally and joined the Royal Australian Air Force as an apprentice Scientific Instrument Maker at 16. He was Apprentice of the Year, later matriculated and, at 24, proudly became a commissioned officer. His career trajectory continued steeply skywards until in 1993 he was appointed executive officer (second in command) at the RAAF’s 10 Squadron (P3C Orion base) at Butterworth, Malaysia. He soon became acting Commanding Officer.

RAAF colleagues recall Vance as a “tough bastard” and a stickler for defence rules and regulations, though honest and brutally straightforward. He could be abrasive and his style was not for the faint-hearted. But that’s why his superiors valued him. Indeed, they had sent him to Malaysia to sort out 10 Squadron, which had gained a reputation as something of a “holiday camp”.

Having served at Butterworth myself, I can say that it was not exactly a holiday camp but it certainly had a large surge capacity in terms of the work available for the people deployed there.

The extraordinary thing in the Russell Vance case was that, outside of the chain of command—coincidentally—his subordinates made a complaint to a social worker, which somehow made it to his superior officer without his knowledge and he was counselled. He took objection to that and said: ‘I don’t know what I’m being counselled for. Can I see the allegations made to the social worker?’ Lo and behold, after that tiny incident, we ended up having a board of inquiry, which at last count cost something like $6 million.

In my capacity as the squadron legal officer at air command, I remember being astounded when the fees for the legal officers exceeded $50,000. This matter went on. Even after my election, I appeared before that board of inquiry again, in 1996, and it was still ongoing years later. That high-profile case and a number of others iterated by the member for Bruce brought about the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the effectiveness of the Australian military justice system. The committee did a major inquiry, and that report was tabled in June 2005.

This government made some substantial changes to ensure the independence and effectiveness of our service tribunals. The Defence Force magistrates and the court martial systems were abolished and the Australian Military Courts were introduced. These are outside the chain of command. They have five-year appointments and there has been a real effort to get some independence into the military justice system.

This bill constitutes a second major step in restructuring those service tribunals, and it reflects the government’s commitment to a fair, transparent and accountable disciplinary system. I welcome the member for Bruce’s monitoring of this system because, on my departure from the parliament, I am happy to know that someone is still watching this issue. Rest assured that our very effective minister in this area will be ahead of the Labor Party, on most counts anyway.

It is an interesting piece of legislation for me because a lot of my constituents have said to me over the years: ‘In my day, we used to put all of these vagrants and graffiti artists and all of these young people with criminal records who go in and out of juvenile detention centres into the Army. Put them in the Army. There should be compulsory military service. Sign them up.’ In fact, a lot of the crotchety old warrant officers that I know openly admit that they have saved many a young man from himself and from a criminal career by beating some sense into him in the military. When I was in the Air Force we had 15,000 people. Today we have 11,000 people. The entry requirements to get into our military today, with the equipment that we use, mean that every one of them has to be highly skilled.

This government has finally fitted out this Defence Force with equipment that will sustain them in defending Australia. One of the real motivating factors of my election into parliament was the standing joke in the Air Force in 1996, when I was elected, which was: ‘Don’t let the war be longer than three days because we are fitted with but not for.’ I think today we have probably gone for the reverse—we are fitted for, but not quite with, so we might have to have a look at our Defence personnel numbers. Every single one of those personnel has to be fully trained, fully capable and really highly skilled. The Defence Force is not a reform school. It is not a place into which, as my constituents say, to put our vagrants and knock some sense into them, and give them a good career and the ability to pay a mortgage and raise a family.

Consequently, the ‘behind-the-hangers justice’ that used to happen—that clip over the ear by the warrant officer—is just not on. If you are asking someone with a university degree or a trade or that sort of thing to serve in the Defence Force, military justice has to move on, has to get with the professionalism of a modern defence force. So, too, must its disciplinary system because, at the end of the day, the chain of command must still work. The chain of command is fundamental to the functioning of any military.

So how do you discipline someone for a breach of that chain of command? I think it starts out with major education, right from recruit training, in the following: ‘What is an order?’, ‘What is a lawful order, an order that must be obeyed, and what is an order that does not have to be obeyed?’, and ‘What is an order outside of the rights of your commanding officer?’

We have heard, for instance, the story of young British soldiers patrolling a border to Ireland. On seeing a car on approach to the checkpoint, one of the soldiers fired at the car—and that was perfectly legitimate under the rules of engagement. The minute that car went through the checkpoint, the bullet he fired, which killed a young person in the car, came from the rear—and that was against the rules of engagement. That young soldier was consequently charged and had to defend himself. That is the split-second difference between right and wrong in a military situation.

Our young people need to be aware of their rights and the obligations that go with the awesome power that they wield. We hope that the military justice system is never used. But, if it is used, it may be on the unique ground of ‘disobeying a lawful order’, to which there is no civilian equivalent. I do not think you can ask a civilian court to even understand the culture. When someone in a superior command position says, ‘Jump,’ you say, ‘How high?’ It is not a situation in which one might question; it is not a situation in which one might get legal advice.

We are looking for a tribunal that can deploy. It must be able to respond to the needs of the military, whether they are going to Timor, Afghanistan, Iraq or wherever. Wherever we are putting our people, this court needs to be able to go with them and act effectively.

One of the amendments that we have made is to have a new time limit, of up to three months from the time a member is charged to the date of trial by summary authority; that is to avoid delays. You have a three-month window in which to charge and try people. I think that is a huge improvement on what used to happen in my day. I used to see some matters that would take up to two years to go through the system. At the end of the day the person charged might have been found innocent, but by that time they would have put in their discharge and be separating from the Defence Force and would have been very browned-off with the services.

In this day and age, where we are looking for our recently exited Defence personnel to be part of our reserve forces—they have the training, they have the capability, they ought to be part of our defence of the nation—we do not want people separating from the Defence Force in a state of anything other than good humour and affection towards their old employer, such that they would come and help out should the need arise. As it is, far too many of our defence people, as the member for Bruce pointed out, separate very acrimoniously. That is something that, by working through our grievance and disciplinary procedures, we certainly hope to remedy and thus reduce the angst over time taken, transparency, fairness and the way they see they have been dealt with. It is important that they see that it is accurate and that they feel they have had justice. Then, even if they do subsequently separate from the Defence Force, it should be with good will.

The member for Bruce named a number of cases, but I will take him to task on one—that is, the Voyager versus Melbourne incident. I think the Commonwealth is on very strong ground there. I am appalled at the legal company that induced one of my constituents to run a case. At no time was he told he would be liable for all of the legal fees. This law company convinced this fellow to go all the way to the High Court, where he lost, on a case that is 40 years old. He had to get over the initial problem of the delay of 40 years. That was very unlikely to happen. The legal company has told my constituent in writing: ‘Don’t you worry about it. You’ll die before the Commonwealth chases you for that debt.’ There are some lawyers out there who add to the angst and financial detriment of ex-defence personnel. This person was a self-funded retiree. He had his own home, and he and his wife were managing independent of the government. Since this legal matter they have become quite destitute, and they are beyond the age of ever working again. He is over 65. Some of the examples of the member for Bruce need to be taken with a grain of salt, but others we could have dealt with a lot faster.

One case I mentioned earlier is that of Russell Vance. I just cannot believe that matter is still going on after all this time. If Russell had had the opportunity, under the current AMC system, he would not have separated from the defence forces in such an acrimonious circumstance. Also, you would have seen these procedures enhancing his right to command rather than substantially undermining it. With the vagaries of everything that went on, we had a situation in Butterworth where P3C Orion operational aircraft were unable to function. A functional, operational part of the Defence Force was not able to operate in the chain of command. That can never occur. At all times there must be someone in charge making decisions and making orders, with systems in place, rather than personnel having personal issues and problems and chewing up resources and time. These matters need to be resolved expeditiously, very quickly, transparently, fairly and with everyone’s rights respected.

The member for Bruce made an interesting point about our ability to collect information on the numbers of matters that we have resolved. That is something the Defence Force should possibly look at. It will probably come through in the various progress reports on reforms over time. This is our second instalment. It is something that I have always had an interest in, although contesting three by-elections in my first term and then being a minister in my second I never really had as much time to devote to it as I would have liked. It is great now, in the twilight of my political career, to see that something is being done to remedy a lot of the conflict of loyalties that legal officers feel towards their chain of command, the uniform, the operational imperatives and making sure that their clients get a fair trial. We have gone a substantial way to making sure that this is effective.

I will go to some of the key points. There is the right to appeal to a court martial or Defence Force magistrate following a summary trial. That is one of the amendments we have made. Currently there is only a right to petition a reviewing authority. Again looking at and tightening up a lot of the offences, one of the key offences—most frequent offences—that I dealt with in my time as a legal officer was the unauthorised discharge of a weapon. That is something that has no civilian equivalent. Men are on a firing range. You are legitimately firing at targets but if you do not do so according to an order that is something that is taken incredibly seriously and you will be charged for it. I do not know that on any other firing range anywhere in Australia that is an offence or even comes close to being one. There are a lot of unique situations to our military that justify a separate tribunal, that justify something that is unique for them that also does not impede their operational imperatives or training objectives.

One of the other things that I like about this bill is the automatic disqualification of a summary authority to try offences where that summary authority has been involved in the investigation of a service offence, the issuing of a warrant or the preferring of a charge. I know in my time in the Defence Force I was frequently preparing the charge, appointing the defending officer and the prosecuting officer and probably giving advice to the CEO as well. It probably can be done a lot more transparently than that.

The other thing we have done is strengthen the rights and duties of legal officers in particular to ensure that the exercise of their legal duties is independent of undue command influence. That is another important thing, because often the commanding officer before whom your various prosecuting and defending officers are referring is also writing the officer evaluation report of the legal officer. I think that is a very important change that we have made as well. There are a number of excellent changes in the second tranche of restructuring our service tribunals to give our modern, effective, very skilled and highly effective Defence Force the similar and same military justice system that it deserves for the 21st century. I commend the bill to the House.