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Thursday, 24 June 2010
Page: 6522


Mr McCLELLAND (Attorney-General) (10:28 AM) —I move:

That this bill be now read a second time.

This bill establishes the Military Court of Australia in accordance with chapter III of the Constitution of the Commonwealth of Australia. The Military Court will be created to try all serious service offences under the Defence Force Discipline Act 1982, taking into account the important role that discipline has in supporting the operational effectiveness of the Australian Defence Force.

This bill, along with the Access to Justice (Family Court Restructure and Other Measures) Bill 2010, sets out the future shape for the federal courts system. These bills, together, ensure the most appropriate outcomes for parties who need the assistance of the federal courts.

The new Military Court will replace the interim measure put in place by the government to re-establish the pre-2007 system of courts martial and Defence Force magistrates. The interim system was necessary following the High Court of Australia’s decision in the case of Lane and Morrison in August last year. In Lane and Morrison, the High Court found the provisions of the Defence Force Discipline Act 1982 that created the Australian Military Court, established by the previous government, to be invalid under the Constitution.

This bill will ensure that serious service offences are tried by an independent and impartial court, the Military Court of Australia, lawfully constituted under chapter III of the Australian Constitution.

The Military Court will provide a long-term solution to the delivery of justice in a manner that takes into account military service and is transparent and accountable.

Less serious offences will continue to be heard by summary authorities at unit level.

The enactment of this bill will be followed by consequential amendments to the Defence Force Discipline Act 1982 and other legislation, contained in the Military Court of Australia (Consequential Amendments) Bill 2010, which the government will introduce in the next sitting of parliament.

Discipline is an essential component of command within the Australian Defence Force. Morale and discipline are diminished if those who are required to abide by stringent rules see others disregard or fail to follow them and not be held accountable. Commanders and service personnel must have confidence in the utility, fairness and credibility of the Defence Force discipline system.

The Military Court of Australia will be a separate and uniquely identifiable federal court. The credibility that comes with a specialist court for Defence Force discipline will strengthen morale and operational effectiveness in the Australian Defence Force.

The right to a fair trial for Australian Defence Force members, like all other members of the community, is a cornerstone of Australia’s federal justice system. Timely and fair trials in the Military Court will enhance Defence Force personnel’s access to justice.

The bill will provide the Military Court with the necessary independence and constitutional protections for an impartial judiciary. To ensure that the Military Court has the necessary understanding of the importance of discipline to the operational effectiveness of the defence forces, all judicial officers appointed to the court must have experience or knowledge of the nature of service in the Australian Defence Force. This will be in addition to the usual criteria for appointment to other federal courts. Judicial officers may not, however, be serving Australian Defence Force members or members of the reserves. This will ensure the independence of the court.

Judicial officers will be appointed to the Military Court of Australia in accordance with the government’s policy on transparent and merit based appointment of judicial officers. The Attorney-General will also consult with the Minister for Defence before an appointment is made.

Judicial officers in the Military Court may hold dual commissions in other federal courts on the same terms and conditions. Consistent with all other federal courts, judicial officers in the Military Court will have tenure to the age of 70 years.

The Military Court will maintain a separate distinct identity from the Federal Court. However, it will utilise, to the greatest extent practicable, the existing administration and registry services of the Federal Court of Australia to eliminate duplication.

The presence of some members of the Australian Defence Force working in the Military Court will provide a visible means of promoting the service nature and identity of the court and will be under the direction and control of the court and not subject to the military chain of command. This, again, will ensure the independence of the court.

The Military Court will be expected to try service offences in Australia as often as is practicable and regardless of where the offence is committed. Where it is necessary for a trial to be conducted overseas, the Military Court will be able to deploy, provided that the deployment and any conditions required by Australia are acceptable to the host nation. In deciding whether to sit overseas, the court will be required to consider, among other things, whether doing so is in the interests of justice. The court will have to take into account where the offence occurred, the location of the accused or witnesses and the inability of the witnesses to give evidence in Australia.

Where the interests of justice require the trial to be heard overseas but the Military Court is unable to deploy, a court martial or Defence Force magistrate will be convened to conduct the trial overseas.

The Military Court will consist of two divisions: the General Division and the Appellate and Superior Division. The General Division will comprise judicial officers at the level of Federal Magistrate who will hear serious service offences at first instance. The General Division may also try less serious service offences that would usually be heard by a summary authority. This may occur where the accused elects to be tried by the Military Court rather than a summary authority or where the summary authority refers the matter to the Military Court. This will enhance the Defence Force members’ access to justice by allowing prosecutions to be heard at the most appropriate level in each case.

The Chief Justice will also be able to direct that a matter which would normally be tried by the General Division at first instance be tried by the Appellate and Superior Division.

Very serious service offences will be tried in the Appellate and Superior Division of the Military Court by judicial officers at the level of Federal Court Judge at first instance. Very serious service offences are prescribed in the bill and comprise offences that go to the very core of maintaining discipline and morale in the Australian Defence Force. Very serious service offences also include those so serious in nature that they require the Commonwealth Director of Public Prosecution’s consent for prosecution in the military justice system. These include offences such as murder and sexual assault.

The Appellate and Superior Division will also hear appeals from decisions at first instance of both divisions of the Military Court. Appeals from a decision of a court martial or Defence Force magistrate deployed overseas will also be heard by the Appellate and Superior Division. This jurisdiction will be exercised by a full court.

All matters in the Military Court will be tried other than on indictment. This is consistent with the current court martial system, which does not provide for trial by jury. The High Court has repeatedly held that the prerogative of parliament is not limited or constrained in its legislative determination of which offences are or are not to be tried on indictment. There are strong policy reasons for not having a civilian jury to determine service offences for the Military Court. For example, where there is a need to try a service offence overseas, a requirement to empanel a civilian jury would be a practical barrier to the efficiency and effectiveness of prosecutions.

I take this opportunity again to acknowledge the hard work of the Attorney-General’s Department, the Department of Defence and the government’s legal advisers in developing the new Military Court. They have done tremendous work, and I thank them. I also acknowledge the efforts of my colleague the Minister for Defence in this regard.

A specialist court to address military discipline reflects the unique nature of military service and the distinct role of the Australian defence forces. An impartial arbiter for Defence Force discipline reflects the importance of fair trials for Australian Defence Force members and access to justice in matters of military discipline. The court will be clearly identifiable to Defence Force members and the wider community as being judicially independent and having a singular military justice focus. The government is confident that the Military Court of Australia will provide a robust framework for military justice. I commend the bill to the House.

Debate (on motion by Dr Southcott) adjourned.