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Monday, 14 September 2009
Page: 9463


Mr BILLSON (7:39 PM) —I would just like to take a few minutes of the parliament’s time to talk about the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009 and to acknowledge the need for responsive action, which the government has taken with the opposition’s support, to deal with the High Court decision concerning the Australian Military Court.

Those with short memories might not be aware of my intimate involvement in the previous government, as the Minister Assisting the Minister for Defence, in seeking to implement in good faith the resolutions of the Senate Standing Committee on Foreign Affairs, Defence and Trade inquiry into military justice and the decisions and responses that were extensively articulated by Senator Hill, as the then defence minister, and by subsequent ministers. An extraordinary amount of work was undertaken to try to achieve faithful implementation of those recommendations. I want to acknowledge the diligence of the members of the Australian Defence Force and the Department of Defence in seeking to find a pathway forward that would respond to the legitimate concerns that arose through the Senate inquiry. They showed the ambition to have a robust system that would not only deal with what in the civilian world some might view as fairly routine disciplinary issues but also deal with more complicated, more sophisticated, crimes.

I must say, I was shaking my head with disbelief at the simplicity with which some people sought to articulate the meaning of the High Court decision—I would characterise it as interpretive overreach. There was a lot of attribution of apparent motive to the High Court decision—and characterisation of the kinds of matters that the Australian Military Court had to deal with. If you actually read through the High Court’s decision—and for those who have trouble sleeping at night, may I recommend that as a low-interventionist way of gaining your sleep—you will find that it does point to the reasons behind the decision. It highlights particularly the parliament’s decision not to stand up the Australian Military Court under chapter 3 of the Constitution. It highlights the particular emphasis that was given to the manner of appointment and to the tenure of the members of the court. It then talks about the extent to which the defence power in the Constitution represents a special position and about the special provisions that take account of the special needs of the military. It then in effect points out some of the stronger characteristics of the Australian Military Court—its efforts to carry forward, wherever appropriate, civilian experience in discipline and justice administration and the familiarity that many in the public have with that. It then basically makes the argument that, if it looks like, walks like, squawks like a court, it should be a court. I would hate to think that in our haste to deal with the concerns that arose from the High Court decision, we would throw the baby out with the bathwater. In fact, I would hate to think we would throw the bath out.

The Australian Military Court was created with particular objectives in mind, which came from a very rigorous analysis of a lot of data through the inquiry into military justice and then through a very genuine, heartfelt and sincere effort by serving men and women in the Australian Defence Force, the Department of Defence and the government of the day to deal faithfully with those concerns. I am troubled by some people saying this High Court decision was an affront to the uniformed men and women of Australia, that somehow the military was found out and that the court was going to let the military know what it should do. This sort of nonsensical populist baloney has no place in this discussion. This Australian Military Court was designed to deal with the day-to-day discipline issues that are far removed from any of the concerns that regular civilians would deal with. The fact is that we ask a great deal of our serving men and women, and in return they ask a lot of us. That is because they are asked to do things most of us would never wish to contemplate and do not present ourselves to carry out. To make sure we get the best out of our military, we need the best of all people, and some of the disciplinary requirements of that may appear extremely onerous in the eyes of some.

Even the case that brought forward the High Court appeal—I never knew what ‘teabagging’ was and I am not going to describe it here—was an example of where the offence was not terribly contested; the tactic was to address the court itself. That is fine; that is an option that is available. But for some commentators to be critical of a system that is designed to provide review opportunities and to give meaning and purpose to a disciplinary administrative framework that, in some cases, needs to act very closely—like a court—and to then carry forward all the best of jurisprudence and civilian court knowledge into the military framework to give confidence, certainty and security to a system that deals with anything ranging from basic disciplinary matters to very serious crimes and for them to deduce that this was a shirt front to the serving men and women and the uniform areas of our defence enterprise is just offensive.

Let us deal with the High Court’s decision. Let us recognise that it is saying that, in the court’s eyes, the special powers of defence in the Constitution do not extend to the creation of the Australian Military Court. That is all it says. It does not say the basic architecture is wrong; it points to a deficiency in the power under which it was created. I invite those people who wish to offer commentary on the Australian Military Court to have a look at how it is operating, what it is seeking to achieve and not to get carried away. I heard some commentators say that this is a great opportunity to wind back reform, that there is no need for reform and the Australian Military Court. Well, all those people who provided contributions to the military justice inquiry and who are looking for a better system, one of greater certainty and consistency, share my view that there was a need for reform, and I am extremely positive about the contribution that Defence made to enacting that reform.

We have a decision here today, but let us not throw out the bath and the baby with the bathwater with the decision. Let us make sure that these reforms and effort bring about the certainty and the security that our serving men and women deserve, machinery that provides for appropriate review opportunities, and a chance to carry the best practices in the history of the civilian court into the Australian military system where it is appropriate and where it is justified. Let us recognise that the Australian Military Court needs to function not only in the comfortable air-conditioned offices around our capital cities but also in deployable situations to deal with real-life conditions, circumstances and offences and, in some cases, criminality, with all the safeguards that were intended to be put in the legislation.

I lend my support to this stopgap measure, but I ask that it not be a gymnastic effort to throw out all that we have learnt and not be an affront to all those people who have contributed to standing up the Australian Military Court. I think Senator Brandis’s idea of a division of the Federal Court has considerable merit and deserves to be recognised. Let us not be too critical of a system that aimed to bring the best of the civilian jurisprudence and court system into the military framework, recognising a vast spread of demands on this machinery. I can honestly attest to this parliament that the Australian Defence Force was nothing but fully open, fully engaged and fully willing to embrace the insights, learnings and submissions to the Senate Standing Committee on Foreign Affairs, Defence and Trade inquiry. It came forward with a hybrid model that recognised that discipline is crucial but, where it is bordering on criminality and offences, we should bring the best that we know about the administration of law into the military as one way of respecting and treating our most valuable asset in the Australian Defence Force—that is, the men and women of the ADF—even if a few may lose their way, whether it be by teabagging or something more serious. Let us not throw the bath and the baby out with the bathwater.