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Monday, 14 September 2009
Page: 9459


Mr BEVIS (7:20 PM) —These bills—the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009—are important. We are all aware of the circumstances of the court case that led to the requirement for these matters to be dealt with by this parliament, but it does also provide an opportunity for this parliament to look more broadly at some of the issues of military justice that have been drawn to the attention of the parliament over many years. I do not wish to go over the recent court case or, indeed, the detail of the provisions of the bills per se. I would rather deal with the issue of military justice more generally. I do that as a member of this parliament who has spent most of the last 20 years as a member of the Parliamentary Joint Committee on Foreign Affairs, Defence and Trade and in various roles, both in government and in opposition, in executive positions and as a shadow minister in the defence portfolio.

We are fortunate in this country to have the calibre of people in the Defence Force that we do. Whatever else is said in this debate, I think the first thing that needs to be acknowledged is that the men and women of the Australian Defence Force, those in uniform and those not in uniform—but, in respect of this matter, particularly those in uniform—undertake their very difficult tasks with a sense of duty and commitment that does this nation proud. On every occasion in which they have been required to undertake their difficult job, we have always been able to be confident that they would do it well. Indeed, this House has on many occasions proudly expressed its appreciation for what they do. I say that not as a jingoistic, patriotic thing to say; I say it as someone who has spent most of the last two decades closely engaged from a policy and parliamentary oversight perspective in the affairs of national defence. But it would be wrong of us as members of this parliament, particularly those of us who feel a special affinity and affection for the defence forces, not to recognise also that when it comes to military justice the performance has been less than acceptable on too many occasions.

This parliament has itself established inquiries not once, not twice but a number of times. I actually have not been able to count them all up prior to coming into this chamber, but there have been many inquiries conducted by different committees of this parliament, and indeed inquiries initiated by the government conducted at arm’s length from both the department and the Defence Force, into some of the problems of military justice. I think the most recent and comprehensive of those parliamentary inquiries was conducted by the Senate Foreign Affairs, Defence and Trade References Committee in 2005. In many respects it was that committee’s report that led to the changes in the military justice system that were the subject of an appeal and have been found wanting by the court. That does not mean that the problems identified by that Senate inquiry do not exist. I refer to a couple of paragraphs from that Senate report:

Despite several attempts to reform the military justice system, Australian defence personnel continue to operate under a system that, for too many, is seemingly incapable of effectively addressing its own weaknesses. This inquiry has received evidence detailing flawed investigations, prosecutions, tribunal structures and administrative procedures. A decade of rolling inquiries has not met with the broad-based change required to protect the rights of service personnel. The committee considers that major change is required to ensure independence and impartiality in the military justice system and believes that it is time to consider another approach to military justice.

In fact, the committee recommended quite a radical departure. The committee recommended that all criminal activity should be referred to civilian authorities. In the end, the government of the day did not accept that recommendation. An alternative course was followed and the courts have now decided that parts of that alternative course fail the constitutional requirements. Nonetheless, the problems that this committee referred to should not be assumed to have been dealt with in the brief couple of years since this report was presented.

The committee referred to 10 different reports into these matters and elsewhere they identified some of them. I want to refer to some of them here: the 2002-03 Western Australian coroner’s investigation of the HMAS Westralia fire; the 2001 Burchett QC inquiry into military justice in the ADF; and the 2001 Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry called Rough Justice—and, if my memory serves me correctly, the current Chief Government Whip, the member for Chifley, Roger Price, was a major participant in that investigation into allegations of brutality in the Army’s Parachute Battalion; I can remember some of those details because I was the shadow minister at the time and the events do not make for happy reading; the 1999 Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry into military justice procedures; the 1998 Commonwealth Ombudsman’s own motion investigation into how the ADF responds to allegations of serious incidents and offences; and the 1997 Adderby study into the judicial system under the Defence Force Disciplinary Act. They are only some of the inquiries, and in addition to the matters that were looked at in those inquiries and the events that led to them being established I am aware of a number of other serious cases in which my view is that proper justice was not made available to aggrieved members of the ADF. Some of them would have been cited in some of these reports; others were not.

What has concerned me so often over the years is the number of cases there have been on board ships. Going back to the late 1980s, I can remember just before I came in here there were concerns about the way women were being treated on some of the Navy vessels. It is not that long ago that there was a major concern in this building and in the Australian public about the treatment of submariners crossing the equator. There were concerns about the way in which students at ADFA were being treated and, indeed, there have been a number of cases over a period of years where that has been so. Over these years, in government and in opposition, I have had the opportunity to talk with the appropriate senior officers in the ADF, all of whom are totally committed to ensuring proper practice and, where proper practice is not adopted, to ensuring that justice is done. Yet, in spite of what I believe to be their firm and clear commitment to that, you can see here a repeat of problems on a regular basis. I have to say that leads me to think that it is not just the odd commander or the odd individual in the system. When you have these sorts of events occurring across services, over time, in different locations and in different units, you have to conclude that there is a systemic problem here. In spite of all the best efforts of those involved in dealing with this matter, it is hard for me to escape the conclusion that there is not a systemic problem.

When this Senate committee delivered its report in 2005 I actually thought that was, in many ways, a breath of fresh air—difficult but necessary. In any large organisation, but particularly one that functions as the ADF does where there is of necessity a strong espirit de corps, a belief in one another and a willingness to work with others and, indeed, die with others who are beside you, it is not surprising that often when events that are difficult arise—embarrassing, hard to confront—there is a tendency perhaps to sweep them under the carpet. That is not through any sense of evil but, in many cases, through a desire to protect the good name of the organisation because, let us be frank, these people are willing to lay down their lives for it. I can understand that, but I do not think in the long run it does any of them any good.

In that Senate report, the committee refer to some of the evidence they took. Again, I just want to refer briefly to part of what they said. The committee noted:

What is striking about the submissions to this inquiry is the variety of background and experience in their demographic. The complainants range from a 15 year old female cadet to a 50 year old male two-star general equivalent and include every single rank level in between those two extremes.

That is pretty comprehensive—from a 15-year-old female cadet to a two-star general and every rank in between. The report went on:

They include serving and ex-serving personnel, general service and specialist officers and other ranks, legal officers and health professionals, police and convicted persons, civilian Defence employees and Equity officers, mental health and social workers, community and returned service groups and, most poignant of all, the next of kin of deceased members.

Elsewhere the committee commented:

Complaints were made to this inquiry about recent events including suicides, deaths through accident, major illicit drug use, serious abuses of power in training schools and cadet units, flawed prosecutions and failed, poor investigations.

That was 2005. For the good of the men and women of the defence forces, we have to ensure not only that there is in place the will amongst command levels to address these problems—because I firmly believe that has always been the case—but also that the structures we legislate produce the outcomes that everybody would aspire to. Try as this parliament has, irrespective of who may have been on the government benches, over the course of the last 15 to 20 years—and no doubt longer but, in my experience in this place, 20 years—we have not been able to produce that outcome. In response to this issue, the previous parliament adopted reforms which I think fell a long way short of what the Senate committee thought should happen—but, nonetheless, the reforms enjoyed the support of both sides of the chamber, as this legislation does.

If we are going to be candid today, we need to comprehend that we have not fixed those problems. One thing that I hope transpires from this debate and the consideration of this legislation is that we regard this not as the end of the matter but as a necessary next step in the process. Clearly, the legislation is required, given the determinations that have been made in other places. But there needs to be a concerted, concentrated effort on the part of all concerned—in uniform, in the department and in the government—to address the sorts of problems that the committee report partly chronicled. The report is scary enough, but people who have been engaged in this area over the last two decades are aware that this report is itself not complete in respect of chronicling all of the problems.

So, yes, I am very pleased to support the legislation and I commend the government and the ministers in the defence portfolio for the actions they have taken swiftly to deal with the problem that was presented to them, but I would say to all of us that there is much more work that needs to be done. We owe it to the men and women in uniform, particularly, to ensure not only that they can work—and carry out what is a very difficult job—in an environment where they will be free from persecution and improper actions but also that, in the event that their rights may be infringed, they have proper recourse, like any other workplace or any other part of society. There are always going to be the unique chain of command issues associated with ADF life—and everybody understands that—but the sorts of issues that are mentioned in this report and the sorts of issues that many of us are aware of go well beyond any reasonable interpretation of those things.

I hope we will use this debate to renew our efforts to find a better justice system. We did not have one prior to 2005. We thought as a parliament that we had made improvements with the amendments. We now know that they are unconstitutional. The matter does not rest here today. It does not rest with the passage of this legislation. More work needs to be done to deal with the problems that the Senate committee report identified. With all due respect to the bills before the House, all the problems are probably not going to be solved by this legislation. I wish I were wrong about that, but I suspect there are still going to be problems. My one plea to those involved in the day-to-day carriage of these matters is to keep working. This is a good step forward but there is still a long way to go.