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Monday, 14 September 2009
Page: 9453


Mr LINDSAY (6:54 PM) —Thanks, Mr Deputy Speaker. You forgot to add ‘honorary Tasmanian’.


Dr Kelly interjecting


Mr LINDSAY —At least I am not a Victorian, Parliamentary Secretary! Tonight, in discussing the Military Justice (Interim Measures) Bill (No. 1) 2009 and the related bill, it is fitting that we have Wing Commander Tracey Timms and Squadron Leader Murray Johnson with us in the parliament. They are both taking part in the ADF attachment to parliament, overseen by the Parliamentary Secretary for Defence Support, who is at the table. It is a very good process and long may it continue. We all enjoy and learn a lot from it. It was particularly interesting for Squadron Leader Johnson, who is attached to my office, to see how the parliament reacts to this kind of issue, to see what we are doing to make sure that the interests of the Australian Defence Force and the men and women of the ADF are protected, and it is good to see that this process is happening.

When the High Court struck down the Australian Military Court, it presented a very significant problem for military justice, for this parliament, for the ADF and for the wider community. But knowing the importance of making sure that this issue is addressed, the opposition is committed to working with the government to ensure that a permanent solution is found—for now and the future—and quickly. The first solution was to provide what is really a temporary answer to the problem, and that is what these bills are about. These bills rectify the problem that Defence has, that the government has and that the ADF has in the short term. I want to sincerely thank the Minister for Defence for his prompt response in getting this legislation to the parliament, first to the Senate and then the House of Representatives, and in reacting to what was not an entirely unexpected decision of the High Court.

I would like to discuss for a minute some of the history of the Australian Military Court. It was judged that military justice in Australia was certainly in need of reform after a long period, and over the last decade there have been a number of inquiries and committees investigating the serious issues in military justice. I particularly refer to the Senate Foreign Affairs, Defence and Trade References Committee, which embarked on an inquiry into wide reform, culminating in a number of recommendations published in their 2005 report. One of these recommendations called for the court to be established in accordance with chapter III of the Commonwealth Constitution to ensure its independence and impartiality. As part of this, the report proposed judges be appointed by the Governor-General in Council and be appointed with tenure until reaching retirement age.

As the previous speaker indicated, there were certainly some concerns about the form of that court, and it is now history that the form adopted by the former government did not in fact withstand the scrutiny of the law. Part of the problem was that the former government took the advice of Defence. I am not being critical of Defence—I am just stating the facts. Defence wanted this particular arrangement and Defence got this particular arrangement, but it was not an appropriate arrangement at law. Perhaps in hindsight the former government should have accepted wider advice, but that was not to be the case and now we have a situation where we have to address this problem, and address this problem the parliament will.

The court was then created under the Defence Force Discipline Act 1982, and the legislation was supported—this is interesting—by both the coalition government and the then Labor opposition. On 29 August 2009, the High Court found that the provisions of this act which established the Australian Military Court were invalid. In a unanimous judgment in Lane v Morrison it was held that the Australian Military Court had been attempting to exercise a judicial power of the Commonwealth but it did not meet the criteria under chapter III. Of course, the significance of that statement is that Morrison is a Defence Force member—from which city, Parliamentary Secretary Kelly? It would have to be Townsville, wouldn’t it? All of the senior leadership of the ADF, particularly in Army, have been through Townsville, and that is why Townsville will be the premier garrison city of this nation. I hope that the Commander of 1st Brigade is listening to this debate.

The legislation before the House today will reinstate the previous system of military justice used in Australia as a temporary measure. It reflects the Defence Force discipline legislation prior to the creation of the AMC. It will re-establish trials by court martial and Defence Force magistrates and reinstate the powers of reviewing authorities.

The purpose of the second bill is to maintain the stability of discipline and its implementation in the Defence Force. The current members of the Australian Military Court will be transferred to the positions reinstated by this bill, including the Chief Judge Advocate, the Judge Advocate’s Panel and the Registrar of Military Justice. The bill also includes provisions to deal with matters which had been referred to, but not finalised, by the Australian Military Court as of 29 August 2009. It is something of a housekeeping bill but it certainly clarifies what the position will be when these bills pass the parliament.

While offering the government the full support of the opposition in passing these measures, I note that there are some concerns, particularly with regard to resolution. I have congratulated the Minister for Defence on the prompt presentation of the interim measures legislation to parliament, but the decision in Lane v Morrison was not unexpected. Perhaps it might have been prudent for those who advise the government to have worked out what the long-term solution would be rather than just the interim solution, and it would have been better to have been debating tonight a permanent solution in the best interests of the Australian Defence Force and the wider community rather than a temporary solution. However, we have the temporary solution before the parliament and, hopefully, we will get it through this evening and that will clarify the issue.

It is imperative for the commanders in the ADF that the discipline system of the ADF not be disrupted. The interim measures bills revert to the old tribunal system. It is important that consistency in military justice be maintained; however, it is equally vital that a permanent solution be found, and I call on the government to again act promptly in presenting legislation which will establish a permanent chapter III court. The government and the opposition will work together to pass the interim measures before the parliament, and the next question becomes what long-term solution can be found when these measures expire.

My colleague in the Senate Senator George Brandis SC has highlighted the folly of the government’s decision in May this year to abolish the Federal Magistrates Court. This was opposed by the opposition. The Federal Magistrates Court has summary jurisdiction which includes dealing with military justice. Senator Brandis has called on the government to create a military division within the Federal Court and of the Federal Magistrates Court. This would seem to be an entirely and eminently sensible way forward. Those of us who deal with the Federal Magistrates Court, with its principal role often in Family Court matters, will know what a success the court has been; that is why we oppose the abolition of the FMC. But it has wider powers. There is the opportunity to establish a military division within the FMC, and it is a pity that this option may in fact now not be possible.

It is contrary to common sense to abolish a Federal Court with the summary jurisdiction to deal with matters such as military justice. The government have yet to formally act on their announcement to abolish the FMC, and, in light of recent developments, I strongly urge the government to reconsider their plans as a solution to this particular problem. All of us want the neatest and simplest solution, and this is a way that, together, we could work urgently towards a permanent military justice system in Australia. The coalition is committed to an impartial, fair and strong military justice system for the Australian Defence Force and the wider community. It is important this system meets appropriate standards of fairness, transparency and independence.

I finish my contribution by again committing that the opposition will work with the government and the ADF together in partnership to get the best result for the problem which faces the ADF at this time.