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Monday, 14 September 2009
Page: 9462


Ms MARINO (7:35 PM) —I rise tonight to speak on the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009, which seek to reinstate the military justice mechanism which pre-existed the establishment of the Australian Military Court. The coalition maintains its strong commitment to a military justice system that is impartial, that meets community expectations for transparency and independence, and that at all times treats Australian Defence Force members fairly.

There has been a lot of history and we have observed substantial changes in the administration of the Australian military justice system over the last decade. In 2007, the ADF dismissed the advice of the Senate Foreign Affairs, Defence and Trade References Committee when establishing the Australian Military Court. The ADF were informed at the time that they could not have judicial power other than pursuant to chapter III of the Australian Constitution. Subsequently, the ADF were informed that the ‘hybrid’ form of court they sought to establish was problematic. The parliament charted a course so that Australia could have a standalone, independent military judicial arm comparable to those of the United States, Britain and Canada. Unfortunately, this was ignored by the ADF.

The notice applied to the ADF regarding the court came to a head on 26 August, with the High Court invalidating the newly created court, with consequent cost and uncertainty. The High Court declared that the provisions that established the Australian Military Court were invalid because the court was found to be exercising the judicial power of the Commonwealth without meeting the requirements of chapter III of the Constitution. As an interim measure, the ADF are intending to broadly re-establish the service tribunal system by reinstating the Defence Force Discipline Act 1982 as it was prior to the amendments in 2006.

What is needed now is rigorous effort by the Minister for Defence to resolve this crisis of military justice reform. In the interim, it is critical and urgent that the Australian Defence Force has a functioning military discipline system, particularly when it is engaged in active service operations overseas, such as our standing Naval presence in the Persian Gulf, engagement in counterpiracy activities and the considerable presence of service men and women on the ground in Afghanistan. The temporary reinstatement of the military justice system which pre-existed the establishment of the Australian Military Court will not only address the gap in the disposition of higher level military discipline; it will also allow time for the establishment of a military court which meets the requirements of chapter 3 of the Constitution, including the introduction of appropriate legislation for this purpose.

I would like to make particular reference to the Military Justice (Interim Measures) Bill (No. 2) 2009, which is aimed to maintain the continuity of discipline in the Defence Force. As the Senate has 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; however, it is a beginning and it is the best that could be done to ensure workable transitional arrangements. Considering the short period of time over which members of the ADF have been subjected to the now defunct Australian Military Court, the impact of re-introducing the Defence Force Discipline Act 1982 as an interim measure will be negligible, if indeed it is felt at all.

The coalition maintains a strong commitment to a military justice system that is impartial and that at all times treats Australian Defence Force members fairly. The object of these bills is to maintain the continuity of discipline in the Defence Force. As the member for Paterson highlighted earlier, we cannot afford to repeat the mistakes of the past. The coalition will urge the government to move expeditiously in bringing forward legislation that will establish a chapter 3 court. We will work with the government to ensure that the men and women of the ADF will have an impartial, transparent, independent and constitutional military legal system.