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Wednesday, 20 February 2008
Page: 837


Mr SNOWDON (Minister for Defence Science and Personnel) (9:38 AM) —I move:

That this bill be now read a second time.

This bill comes to this House for the second time, having been introduced prior to the last election, but lapsing due to the dissolution of parliament. It represents another stage in the reform of military justice in the ADF and one which is long overdue.

For the record, during the term of the previous government there were no less than six reviews of military justice, including inquiries in 1999 and 2001 by the Joint Standing Committee on Foreign Affairs, Defence and Trade of the parliament.

These were preceded in 1997 with the report of Justice Abadee, which began in 1995, and an Ombudsman’s report in 1998. Following, there were reports by the WA Coroner into the fatal fire on HMAS Westralia, and by Mr Burchett QC.

Finally the catalyst for action came in May 2005, in tabling the Senate Foreign Affairs, Defence and Trade References Committee report on The effectiveness of Australia’s military justice system. The findings and recommendations of this report identified some serious shortcomings which are now being addressed.

Those recommendations essentially covered two themes. First, the replacement of the old system of court martial and Defence Force Magistrate trials with a new Australian Military Court (retaining the existing right to appeal to the Defence Force Discipline Appeal Tribunal), an independent Director of Military Prosecutions and Provost Marshal ADF.

The second theme was that of major reform of the administrative system by which grievances are handled. The majority of these reforms are now in place and on the face of it appear to be operating satisfactorily, as regular six-monthly reports to the Senate committee indicate.

This bill provides for the implementation of one of the final links in this new system, namely, the summary discipline system which is that part of the military justice system where many breaches of military discipline are first dealt with—as well as a number of related matters.

The previous government’s response to the Senate committee report was made in October 2005. Although not all recommendations were accepted, there was sufficient in the view of the Labor Party, then in opposition, to give support albeit conditional upon serious change being made and close monitoring of progress being undertaken.

In essence the difference in view was that the Senate committee recommendations were for the ‘civilianisation’ of the military justice system so as to remove any risk of compromise which was seen to be endemic in the existing system. The then government rejected those recommendations, though it is clear that in so doing the military was placed on notice that the system had to demonstrate dramatic improvement quickly.

The Rudd government has maintained that attitude, and hence some revision to the provisions of the bill first introduced which reflects our attitude to the principles of military justice which previously we considered had been too readily dispensed with. The issue which best represents this attitudinal difference concerns an attempt by the previous government to modify the rules of evidence applicable in summary trials.

The Senate Foreign Affairs, Defence and Trade Committee in its report on this bill in September last year expressed reservations about the provisions of the bill governing the application of the rules of evidence in proceedings before a summary authority. The Rudd government does not believe that the previous government’s response to the committee’s recommendation on that matter was sufficient and hence in this new bill the provisions have been strengthened so that the rules of natural justice and basic principles of the rules of evidence (relating to relevance, reliability, weight and probative value) are applied by a summary authority.

Therefore, the Rudd government has in this new bill further strengthened the application of the rules of evidence.

The Rudd Labor government is therefore committed to continuing the reform of the military discipline system to address the concerns of defence personnel, the parliament and the community.

The changes are intended to provide for, and balance, the maintenance of effective discipline and the protection of those individuals who are subject to the military discipline system. It introduces another element of military justice which reflects the fairness of civilian processes of justice, but in a way which recognises the realities of applying military discipline fairly and efficiently in the field.

This recognises that ADF operations are to some extent unique, requiring a far greater level of regulation than that encountered in other forms of employment and demands behaviour which is consistent with its role as an armed force. It follows that breaches of service discipline must be dealt with speedily and, sometimes, more severely than would be the case if an individual, who was not subject to military discipline, engaged in such conduct. The military discipline system needs to be one that can operate overseas and in Australia, in war and in peace.

At the same time, however, the Rudd government in recognising the need for these additional constraints and standards believes that the military discipline procedures that accompany them must be timely, impartial and fair to ADF members, and that they must be seen to be so by the Australian people.

In 2006, the first stage of significant reforms to the ADF discipline system was implemented through the establishment of a statutorily independent Australian Military Court under the Defence Legislation Amendment Act 2006. The court came into effect on 1 October 2007. The second stage of these reforms makes further significant improvements to the military justice system, in particular through the modernisation and redesign of the summary discipline system.

Commanders in the ADF carry great responsibility, which may ultimately require them to use lethal force.  These commanders are required to ensure that this lethal force is used lawfully. To do this requires a disciplined force. The cornerstone of ADF discipline is the Defence Force Discipline Act 1982 and, in particular, the summary discipline system subject of this bill.

The summary discipline system enables the timely maintenance of discipline and morale. The balance between discipline and the rights of individuals is the key to achieving the operational effectiveness and success that the nation expects of its armed forces. It is this balance that produces a defence force that can wield lethal force while reflecting the values of our nation and complying with our international obligations.

The ADF summary discipline system forms one part of the military justice system which, taken as a whole, must provide the safeguards necessary to protect the interests of ADF members. Commanders use the summary discipline system on a daily basis. It is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. The summary discipline system must therefore operate quickly, be as simple as possible, and it must be capable of proper, fair and correct application by officers with no formal legal training.

It is upon this premise that the Australian military justice system is based and the amendments proposed in this bill have been drafted.

To ensure fairness and rigour, the bill will introduce a number of enhancements to the summary discipline system including—

  • A right in all cases to appeal a summary authority conviction, order or punishment to a military judge of the Australian Military Court. The bill provides that a statutorily independent military judge of the Australian Military Court will have the discretion to deal with an appeal on its merits by way of a fresh trial or a ‘paper review’ of the evidence.

- If the military judge upholds an appeal against a conviction, then they may substitute a conviction for an alternative offence or quash the conviction, with the option to order a new trial.

- On an appeal against punishment or order, the military judge may confirm, quash or vary the punishment. In varying the punishment, the military judge is limited imposing a punishment not greater than the maximum punishment available to the summary authority at the original trial.

  • The bill also introduces the right to elect trial by a military judge of the Australian Military Court for all but a limited number of disciplinary offences, similar to the scheme available in the Canadian forces summary system. This means more minor offences have no such right for simple reasons of practicality. They are best dealt with quickly and are of such a nature that trial is inappropriate. The exception to this is for some officers where the right to trial has been long established. Dealing with these offences at the summary level will reinforce the maintenance of service discipline, while preserving the rights of individual members. Additional safeguards have been included, for example, where no election is given, a more limited range of punishments is available. If a summary authority contemplates the imposition of a more severe punishment then, prior to making a finding of guilt, they must offer a right of election for trial by the Australian Military Court. In addition, a convicted person will be further protected by their right to appeal. The limits on the right of election are designed to ensure that the Australian Military Court is not unnecessarily burdened with charges involving minor disciplinary infractions, for example, straightforward cases of absence without leave.
  • In the case of all summary proceedings and appeals from summary proceedings to the Australian Military Court which are dealt with on the papers, the bill will also introduce a revised evidence framework. However, as mentioned earlier, the Rudd government has brought a different approach to the rules of evidence. While it is recognised that the rules of evidence and policy guidance currently applicable to summary proceedings are complex and varied, that they can be difficult for persons without formal legal training to apply in the field, their influence must be retained in the interests of fairness. Hence, unlike the provisions of the previous bill, subparagraph 146A(2)(b)(ii) of this new bill requires the summary authority to comply with the rules of natural justice and to apply fundamental evidentiary principles.
  • The bill also proposes significant reforms to the review process for summary convictions. It provides a right of appeal to the Australian Military Court while retaining internal safeguards requiring more serious punishments (such as detention) to be approved before they take effect. There is a new obligation on reviewing authorities to recommend appeals to the Australian Military Court where substantive errors are identified. There is also a mechanism for correcting technical errors. When coupled with the new right of appeal to the Australian Military Court, the revised review process adds an additional layer of protection for the rights of individuals who are subject to the military discipline system.

A number of other significant improvements to the military justice system are included in the bill.

Following a review of offences and punishments in the Defence Force Discipline Act 1982, a number of proposed changes will be effected in the bill, including:

  • Reinforcing ADF antidrug policies by enabling service tribunals to try offences in respect of a broader range of illegal drugs. Tribunals will have an expanded ability to deal with drug charges for offences committed both in and outside Australia by ADF and defence civilians as defined in the DFDA. The category of drug offences will be broadened, and because of the ADF’s no drug policy, the burden of proof will be strengthened, especially with respect to self-administration of a prohibited drug or the administration of a prohibited drug by a person to a defence member, where there is lawful excuse for doing so;
  • Making it clear that a member is guilty of an offence of prejudicial conduct if he or she ‘omits’ to perform an act which proves likely to be prejudicial to ADF discipline. That is, in terms of modern military responsibilities, failure to act is as reprehensible as the wrongful commission of an act;
  • Reinforcing the high standard of weapons safety required in an armed force by making the offences of ‘negligent discharge of a weapon’ and ‘unauthorised discharge of a weapon’ alternative offences;
  • Improving the accuracy and fairness of sentencing by allowing the suspension in whole or part of a greater range of punishments, thus providing more flexibility and fairness commensurate with civilian practice;
  • Ensuring that Defence Force Discipline (Consequences of Punishment) Rules may apply to certain punishments regardless of whether the punishments are awarded by the Australian Military Court, a summary authority or a discipline officer;
  • Amending the status of a summary conviction so that it is of relevance for service purposes only. This will reduce the possible adverse and disproportionate impact of minor service offences on the civilian lives of persons convicted by an ADF summary authority; and
  • Providing better administration of members sentenced to dismissal by allowing the Australian Military Court to order that the punishment of dismissal is effective on a day no later than 30 days after it has been imposed (rather than immediately as is currently the case).

These changes will make an immediate contribution to the rigour, fairness and transparency of offences and punishments under the Defence Force Discipline Act.

This bill makes a number of other changes as recommended by earlier reviews, but which have taken almost seven years to this stage. These include:

  • Expanding the discipline officer scheme under part IXA of the Defence Force Discipline Act 1982 to include non-commissioned officers, warrant officers and junior officers up to and including the ranks of lieutenant in the Navy, captain in the Army and flight lieutenant in the Air Force (with limited punishments); and
  • Removing the separate and more severe scale of punishments for Navy.

Additional proposals include:

  • Expanding the jurisdiction of superior summary authorities to include ranks up to rear admiral in the Navy, major general in the Army and air vice marshal in the Air Force. This change will allow simple and minor offences committed by more senior officers to be dealt with expeditiously at the summary level, rather than awaiting (the currently mandatory) trial by the Australian Military Court.
  • Adding the automatic disqualification of a summary authority to try offences where the summary authority has been involved in the investigation of the service offence, the issuing of a warrant, or preferring the charge. The change will help reduce any perceptions about the possible bias of summary authorities and promote confidence in the impartiality and fairness of summary proceedings.
  • Removing the examining officer scheme from the Defence Force Discipline Act. This change will remove an unnecessary and rarely used procedure.
  • Introducing a new time limit requiring the trial by a summary authority of a person charged, as soon as practicable within three months of the charge being laid. This will improve the timeliness of summary proceedings and mandate the referral of delayed matters to the Director of Military Prosecutions.
  • Clarifying the powers of the Director of Military Prosecutions in respect of a charge preferred by the Director of Military Prosecutions to make it clear that he or she has the full range of options that are required by the position.
  • Requiring a discipline officer to provide a report to his or her commanding officer. The intention of this amendment is to provide a safeguard through legislated oversight of the discipline officer scheme and provide statistical information to commanding officers. This will facilitate the maintenance of discipline and transparency of the discipline officer scheme.
  • Providing a right for a member to request no personal appearance, subject to approval, in respect of a summary proceeding. The personal appearance of the accused will remain the norm; however, in exceptional circumstances, and only where the accused intends to plead guilty, the member may apply not to be present at a summary proceeding and to have the matter heard in his or her absence, subject to the approval of the summary authority. The member will have the right to be represented at such a hearing.
  • Statutory recognition of the new Provost Marshal Australian Defence Force. In accordance with the government response to the 2005 Senate Standing Committee on Foreign Affairs, Defence and Trade report, the Provost Marshal was appointed on 14 May 2006 to head the newly established ADF Investigative Service. It is intended to enable the Provost Marshal to refer a serious service offence to the Director of Military Prosecutions, where the Provost Marshal considers it appropriate to do so. Adoption of this provision will improve efficiency by streamlining military discipline procedures and allowing more serious matters to be referred directly to the Director of Military Prosecutions.
  • Strengthening the rights and duties of legal officers, in particular the exercise of their legal duties independently of command influence, by an amendment to the Defence Act. The purpose of this new section is to ensure that ADF legal officers are not subject to inappropriate command direction in the exercise of their professional capacity as ADF legal officers while still allowing an ADF legal officer who is superior in rank or appointment to issue technical directions to subordinate ADF legal officers.
  • To give effect to a recommendation by the Senate Standing Committee on Foreign Affairs, Defence and Trade, in its report of October 2006 (regarding an earlier military justice reform bill now enacted), the Director of Military Prosecutions will be able to require that a trial of a class 3 offence is to be by a military judge alone, accompanied by a reduction in the maximum available punishment to six months imprisonment. This amendment reflects civilian criminal practice and overseas military systems. Similar to the previous system of a Defence Force magistrate trial, these offences do not warrant a jury trial (with the associated administrative issues, expense and possible delays). This will avoid unnecessary jury trials. This will be of significant benefit to the ADF, given their potential to impact adversely upon ADF operations.
  • Allowing for the Director of Military Prosecutions to be able to seek a determination from the Defence Force Discipline Appeal Tribunal on a point of law that arose in an Australian Military Court trial, at the conclusion of that trial. This will be for precedent purposes and will allow the law to be applied correctly in future cases.

These recommendations and initiatives, when implemented, aim to streamline and improve the ADF discipline system.

Debate (on motion by Mr Farmer) adjourned.