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Wednesday, 19 September 2007
Page: 181

Mr BILLSON (Minister for Veterans’ Affairs and Minister Assisting the Minister for Defence) (11:27 AM) —in reply—I thank the members for their contributions today. The Defence Legislation Amendment Bill 2007 represents one of the most wide-ranging reforms to the ADF summary discipline system since the introduction of the Defence Force Discipline Act 1982. I particularly thank the member for Lindsay for her welcome contribution to this debate and the earlier debate on the Australian Military Court legislative framework. Her background as a former serving Air Force legal officer has placed her in an excellent position to add value, practical insight and experience to this process, and I commend her for her remarks and wish her well with her post-parliamentary career. I hope that it is as satisfying and fulfilling as you hope it can be. Good luck with that.

I also thank the member for Bruce for his contribution. There is a welcome air of cooperation and collaboration between the opposition and the government on this measure. His encouragement to maintain an observation about how the system actually operates in practice is well understood. We have a periodic reporting framework for the whole military justice implementation package that the government has introduced, and he can be assured we will be closely observing how it operates.

The bill introduces far-reaching reforms to the ADF summary discipline system flowing from the government’s response to the 2005 Senate report on the effectiveness of Australia’s military justice system. My colleague the member for Lindsay has touched on a few examples where it certainly was suboptimal and there was considerable room for improvement.

This bill enhances the summary procedures by introducing a number of significant safeguards such as the automatic right of appeal for summary trials to a new Australian Military Court, yet still enables commanders to maintain effective discipline while recognising the need for timeliness, which is critical in operational circumstances, and the need for fairness to protect the rights of individuals. Again, the member for Lindsay has accurately characterised those unique demands within the military context and the regimental demands of service—a very helpful insight again.

I also alert members to the fact that I will, at the conclusion of this speech, in the consideration in detail stage, move an amendment to further enhance the compliance with the rules of natural justice and other principles of the rules of evidence in proceedings before the summary authority. That has been alluded to by the member for Bruce, and I welcome his support for that amendment.

As I said when I introduced this important bill, commanders use the summary discipline system on a daily basis. The system is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. It is fundamental to the Australian Defence Force’s success in operations, success of which every Australian can be rightly proud.

In addition to the right of appeal to the new Australian Military Court on conviction and punishment, the bill also introduces an equally important reform in the right of a defence member to elect a trial by a military judge of the Australian Military Court for all but a limited number of certain disciplinary offences.

If the right of election were completely discretionary on the part of the individual member, it is not too difficult to imagine circumstances in which the exercise of that right could have the potential to affect the operational effectiveness of a unit. It is therefore necessary for some limitation to be placed on those circumstances in which such a right can normally be exercised. This has been done by listing in schedule 1A a number of offences, essentially disciplinary in nature, in relation to which a member has no initial right to elect trial by the AMC and which must be dealt with by a summary authority in the first instance. For example, it would be anomalous if an absence of two hours could not be dealt with by a commanding officer on the spot. That absence has implications, particularly when there is scope to deal with the issue on the spot. This recognises the imperative that discipline must be maintained within Australia and overseas, in peace and in war, and that relatively minor matters of a disciplinary nature ought to be dealt with as speedily as possible. The list of offences to which this provision will apply meets the requirements of the services and recognises that summary discipline, by its nature, has to be quick, fair and as simple as possible, while at the same time providing the safeguard of an unlimited right of appeal should a member convicted under this arrangement wish to exercise it.

Additional safeguards have been included for these offences, such as limited punishments and a requirement for summary authorities to offer a right of election if, prior to making a finding of guilt, they determine that the more severe punishments that are available to them might apply. If there is a very profound impact of the likely action then the process provides further avenues for the accused person. These additional safeguards for the accused will be further supported by the right of a convicted member to appeal a conviction or punishment to the Australian Military Court and the automatic review of all summary trials.

The review of the proceedings of summary authorities not only is a means of ensuring accountability but provides additional safeguards for members of the ADF. Where there has been a technical error, such as the imposition of a punishment which is not authorised, the reviewing authority may refer the matter back to the summary authority for it to be reopened and corrected within the authority. This is an important safeguard and will further protect the rights of defence members who are tried and convicted by a summary authority and who may not exercise their right of appeal to the Australian Military Court. Certain more severe punishments will also not take effect until approved by the reviewing authority, which may quash a punishment or impose a less severe punishment, which will then be subject to an automatic right of appeal.

The bill also introduces a number of other significant enhancements to ensure the right balance is struck between maintaining effective discipline and protecting the rights of individuals. I canvassed all of these enhancements when I introduced the bill, but I would like to quickly touch on and emphasise a number of them, which include: enabling service tribunals to deal with offences in respect of a more contemporary range of illegal narcotics up to the trafficable amount in Australia, to support the enforcement and the application of the ADF’s no drug policy; allowing the suspension in whole or in part of a greater range of punishments under the DFDA, which will enable the part suspension of detention where the circumstances of a case or mitigation establish that this is appropriate; removing the separate and more severe scale of punishments for the Navy, which is no longer relevant and which will provide for consistency with the other two services; providing that the status of a summary conviction is expressed to be for service purposes only so that members of the ADF are not unduly affected by disciplinary infringements long after they have left the services; and having a new time limit, which the member for Lindsay touched on, of ‘as soon as practicable within three months from the time the member is charged to the date of trial by summary authorities’ to ensure the timely handling of summary trials.

Another major reform is the introduction of a simplified evidence framework. The evidence regime currently applicable to summary trials is overly complex and not easy to apply by persons without formal legal training. It includes both Commonwealth and ACT evidence legislation, in addition to extensive policy guidance. The bill will make it clear that a summary authority will not be subject to the same formal rules of evidence that apply to the Australian Military Court but must not depart from the fundamental principles underpinning the rules of evidence.

The new evidentiary framework is based on the successful system which has been in use for many years by the Canadian forces. The requirement in the Commonwealth Criminal Code—as applied by section 10 of the DFDA—dealing with the principles of criminal responsibility, including the burden and onus of proof, will remain applicable in summary trials. The very important protection against self-incrimination is also being enshrined in the DFDA to avoid any doubt about its continued application, notwithstanding the exclusion of the formal rules of evidence.

The summary trial process must be fair and be seen to be fair. Although summary authorities are not courts in the ordinary sense, it is important that the requirements of natural justice and procedural fairness are adhered to. These include the absence of bias and the ability for a person to know and be able to answer a case made against them. To further strengthen the recognition of the rules of evidence, and as I have already stated, I will be introducing an amendment to the bill today, as recommended by the Senate Standing Committee on Foreign Affairs, Defence and Trade in its recent report on the provisions of the bill. As recommended by the committee, the amendment will strengthen the recognition of the rules of evidence but not mandate their application.

Additionally, the bill provides for the making of the Summary Authority Rules, which will be ‘legislative instruments’ as defined in the Legislative Instruments Act 2003 and be subject to parliamentary scrutiny via the registration and disallowance provisions in that act. In proceedings before a summary authority the summary authority shall act in accordance with any rules made by the statutorily independent chief military judge. The safeguards provided by the rules may include the compellability of witnesses, the manner of taking evidence and such other matters as considered necessary or appropriate by the chief military judge. The overriding safeguard, however, is that nothing in this proposal will affect a member’s appeal or election rights to the Australian Military Court from a summary trial.

In summary, the bill, together with the proposed amendments, introduces significant enhancements to the ADF summary discipline system that give effect to the agreed recommendations of the 2005 Senate report while allowing it to operate quickly, to be as simple as possible and to be capable of proper, fair and correct application by commanding officers where it is necessary to deal with misconduct that could undermine command authority and impinge on successful military operations. I commend the bill and the proposed amendments to the House. I present a supplementary explanatory memorandum to the bill.

Question agreed to.

Bill read a second time.