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Monday, 14 September 2009
Page: 9449


Mr BALDWIN (6:34 PM) —I rise today to speak on the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009. By way of introduction, I would like to echo the words of my Senate colleagues and say that the situation that the ADF now finds itself in was inevitable, and it is regrettable that we must hastily employ bandaid type legislation to overcome the immediate requirement for an interim military justice system. The reason for this situation is that the provisions of one of the acts which established the Australian Military Court, the Defence Force Discipline Act 1982, were recently found by the High Court to be invalid. As I previously said, this decision was inevitable, and that is because the Australian Military Court was claiming to exercise a judicial power of the Commonwealth that did not meet the requirements of chapter III of the Constitution. For example, under chapter III, judges are required to be given tenure until retirement and, additionally, are required to be appointed by the Governor-General in Council. Neither of these conditions were met by the Australian Military Court.

There is now some debate about why the decision was made to ignore the advice of the parliament and proceed with the establishment of the Australian Military Court without regard to chapter III considerations. For the record, Defence was advised that the hybrid form of court they sought to establish would be problematic, as you cannot have or exercise judicial power other than pursuant to chapter III of the Australian Constitution. However, while I agree that the circumstances under which the Australian Military Court was founded are less than ideal, I will not enter into a debate on those circumstances. I believe it is suffice to say that there is little value in concentrating on the past policy formation deficiencies in this instance. Instead, what is needed now is the concerted effort of the Minister for Defence in resolving this crisis of military justice reform.

The issues confronting the defence minister are daunting and the complexities of this constitutional legal matter should not be understated. In this circumstance, expediency is not the key priority. The priority must be to ensure that the Australian Defence Force has a military justice system that is constitutional. What is more, the coalition believes firmly in the development of a military justice system that is impartial, independent and transparent and meets community expectations regarding the application of legal principles. Importantly, the new military justice architecture must also ensure that Australian Defence Force members are treated fairly and equitably. I am sure that all would agree that we cannot afford to repeat the mistakes of the past.

The purpose of the Military Justice (Interim Measures) Bill (No. 1) 2009 is to reinstate the military justice system that existed prior to the establishment of the Australian Military Court. This bill will amend the Defence Force Discipline Act 1982, the Defence Force Discipline Appeals Act 1955, the Defence Act 1903, the Migration Act 1958 and the Judges’ Pensions Act 1968 to reinstate the provisions in each act which existed prior to the introduction of the Defence Legislation Amendment Act 2006, which established the Australian Military Court. Furthermore, the bill will include transitional arrangements that will, for example, provide provisions for all matters that have been referred on appeal to the Australian Military Court but were not concluded prior to 26 August 2009. This bill will also address the status of the Australian Military Court office holders and will, for example, include provisions for their automatic transition to the relevant positions of Chief Judge Advocate, members of the judge advocates panel and Registrar of Military Justice. Broadly speaking, this bill will, by temporarily reinstating the old military justice system, provide time for the establishment of a military court that meets the requirements of chapter III of the Australian Constitution.

On the matter of the Military Justice (Interim Measures) Bill (No. 2) 2009, I would now like to make some brief comments. Firstly, the intended purpose of this bill is to maintain the continuity of discipline in the Defence Force. Furthermore, it will validate all previous decisions that were made by the Australian Military Court prior to the recent High Court decision. I note, however, that there may be certain issues arising from this interim legislation, and that is to be expected. As my colleagues in the Senate have previously pointed out, this legislation is an interim measure that was developed in a relatively short period of time in order to ensure the continuity of ADF legal and discipline processes. It is accepted that this legislation is not perfect. It is, however, the best that can be done to ensure a workable transitional arrangement. However, this bill does contain certain safeguards. For example, the bill gives affected persons the right to have their cases reviewed in the instances where they were found to be liable under the Australian Military Court. Furthermore, all cases whereby the individual was deemed liable and was disciplined by an act of detention will be automatically reviewed. Lastly, if a person was found not to be liable under the subsequent review, this bill provides the reviewing authority with the powers to discharge that liability.

The coalition will urge the government to move expeditiously in bringing forward legislation that will establish a chapter III court. Needless to say, the coalition is also committed to supporting the government in resolving the current impasse in an expedient manner while ensuring that the new system adheres to chapter III requirements. I would like to take this opportunity to recognise the work undertaken by Senators Johnston and Brandis on behalf of the coalition regarding this issue. This is an inherently complex legal issue and has presented the defence minister with an unenviable task. Yet it is an important task that will benefit from considered thought. I would therefore like to say that the support offered to the Minister for Defence by Senators Johnston and Brandis is exceedingly generous and that their combined legal intellect will naturally help in the construction of legislation that will rebuild the shattered military justice system.

The situation the ADF now finds itself in is regrettable. However, I believe that an opportunity now exists to develop an appropriate and constitutionally endorsed military legal system. That is why the coalition will work with the government in ensuring that the men and women of our Australian defence forces will have an impartial, transparent and independent military legal system. We commend the amendments to the House.