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Monday, 14 September 2009
Page: 9456

Mr SIMPKINS (7:12 PM) —As a former Army officer I am pleased to be able to speak on the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009. These bills came about as a result of a decision by the High Court of Australia on 26 August 2009 whereby the provisions establishing the Australian Military Court were ruled invalid. The court found that the Australian Military Court was exercising the judicial powers of the Commonwealth without meeting the requirements of chapter III of the Constitution. These bills will re-establish the pre-2007 Defence Force Discipline Act 1982 arrangements, until such time as legislation for the court can be reintroduced and passed.

Specifically, the purpose of the Military Justice (Interim Measures) Bill (No. 1) 2009 is to reinstate the military justice machinery which was in existence prior to the establishment of the Australian Military Court. The bill amends 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 restore the provisions in each act which existed prior to the introduction of the Defence Legislation Amendment Act 2006, which established the Australian Military Court. Under the Australian Military Court, military judges had presided over cases and operated outside the chain of command. The legislation which established the Australian Military Court has fallen short of these recommendations.

As an interim measure, Defence is planning to reintroduce the service tribunal system that existed before the creation of the Australian Military Court by reinstating the Defence Force Discipline Act 1982 as it was prior to the amendments in 2006. This will re-establish trials by courts martial and Defence Force magistrates; reinstate the statutory position of Chief Judge Advocate, the judge advocate’s panel and the Registrar of Military Justice; reinstate the system of reviews and petitions in respect of both summary trials and trials by courts martial or Defence Force magistrates; and reinstate the powers of reviewing authorities. The consequential amendments made in 2006 to the Defence Force Discipline Appeals Act 1955, the Defence Act 1903, the Migration Act 1958 and the Judges Pensions Act 1968 which make reference to the Australian Military Court will also be reversed.

The purpose of the Military Justice (Interim Measures) Bill (No. 2) 2009 is to maintain the continuity of discipline in the Defence Force. It also states that the provisions of the schedule that declare people to have particular rights or liabilities have effect for Defence Force service purposes only. The bill also provides that if a provision has an invalid application because it exceeds the Commonwealth’s power, but it has at least one valid application, the provision will not have an invalid application; rather, it will reflect the parliament’s intention that the provisions in this schedule are to have every valid application.

The bill also ensures that third parties that have acted on the basis of a punishment intended to have been imposed or an order intended to have been made by the AMC are entitled, and always were entitled, to act on that basis and declares the rights and liabilities of a person to be, and always to have been, as if certain specified matters had been the case.

Over my 15 years in the Army I had some contact with the system of military justice. It was all professional; I was not on the receiving end of any of that justice, apart from my training at Duntroon! I always had a sense of confidence in the system, but only if it was applied as it should have been. I would certainly agree that the system held out the opportunity too often for matters to be dealt with internally. As a member of the Army’s Special Investigation Branch for two years I felt that, where serious and important matters could have been investigated by the SIB, the option of dealing with matters internally was too often taken up by unit commanders. The SIB had to be called by unit commanders and could not initiate investigations themselves. I believe that for matters such as assaults that were ‘dealt with’ internally justice could not have been either served or seen to be served. When we look back on that period in the early 1990s, it is not surprising that those sorts of arrangements created an environment where justice failed the soldiers.

Justice, of course, is important for morale. Within months of graduating from RMC Duntroon, I saw a commissioned officer assault a steward in the officers’ mess. I gave evidence at a commanding officer’s hearing that I had seen the common assault take place. Yes, the officer was found guilty of a basic common assault but with no punishment and no conviction recorded. This is not the way to strengthen morale, when commissioned officers are not subject to the same standards and sanctions as apply to the enlisted personnel.

I have no doubt that there has been the need for a number of inquiries into the way military justice has been handled, and I have more examples from the time of my direct involvement in military investigations and justice between 1989 and 1994. I think that much of the problem was related to unit commanders of units and independent subunits, as they were very keen to demonstrate that everything was good in their unit, even when it was not. I reiterate that my perspective in these matters was that if unit commanders and their formation commanders used the system and the DFDA as they should have the system could have worked and justice could have been dispensed. The reality, as shown by many inquiries, is that the DFDA was applied as an option by some and, when it was used, sometimes the options for sanctions were inappropriately used. That was my experience. I would also say that the responsibility for these breakdowns and these decisions often rested with commissioned officers.

In reading into the detail of these bills and the matters surrounding the requirement for these bills, it would seem that in 2007 the problems I have outlined remained. I believe that the defence department strongly advocated for the flawed structure that the High Court struck down in the case of Lane v Morrison. It is my understanding that, acting on the advice of the defence department, the 2007 legislation was agreed to by the minister. It seems that the trouble with defence is that the chain of command has been used to provide protection for some at the cost of providing justice and protection for the weak. Clearly the administration of justice must be outside the chain of command and demonstrate visibility and accountability. That has not always been achieved and it is now up to this parliament to get the military justice system back to where it can operate and then as soon as possible establish an independent military court.

There are those who think that there should be no military court and that the police should investigate all incidents. I would tell them that it cannot be like that. The operational and security aspects of the three services necessitate the need for an investigative capacity with independence from local formations and a court system beyond the influence of commanders so that on operations and other military-specific circumstances justice can be carried out.

I look forward to supporting these bills in their passage through the House and I look forward to the introduction of fresh legislation that will support the establishment and operation of the Australian Military Court. I look forward to the establishment of a military court which stands effectively outside the chain of command.

I would conclude by saying that it is not and never has been in the best interests of the Defence Force and its personnel to have senior officers deciding when, how and to what extent the military justice system is to be applied. This is particularly true when the extent of that application has been motivated by an intention to protect personal or unit reputations. I would state that, while I make those comments, the majority of commissioned officers are dedicated and honourable men and women, who always do what they think is the right thing. I look forward to the passing of these bills and a future with a better military justice system.