Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Thursday, 21 March 2013
Page: 2892


Mr STEPHEN SMITH (PerthMinister for Defence and Deputy Leader of the House) (09:11): I move:

That this bill be now read a second time.

In 2006 the parliament enacted legislation amending the Defence Force Discipline Act 1982 to establish the Australian Military Court by passing the Defence Legislation Amendment Bill 2006. The Australian Military Court commenced its work in 2007.

In August 2009, in Lane v Morrison, the High Court decided that the legislation was unconstitutional as it sought to confer on the court jurisdiction to exercise judicial powers of the Commonwealth, without the court conforming to chapter III of the Constitution. The provisions were declared invalid.

To ensure continuity of Australia's military justice system, the Military Justice (Interim Measures) Act (No. 1) 2009 was passed in September of that year. That act amended the Defence Force Discipline Act 1982 to provide an interim response to the High Court decision in Lane v Morrison by returning to the service tribunal system that existed before the creation of the Australian Military Court.

The reinstatement of the pre-2007 military justice system was to allow for the consideration and development of options for a permanent military justice system which would meet the requirements of chapter III of the Constitution and therefore be constitutional.

The Military Justice (Interim Measures) Act (No. 1) 2009 provided a tenure of up to two years for the Chief Judge Advocate and the judge advocates. This was extended for a further two years by the Military Justice (Interim Measures) Amendment Act 2011, which is due to expire in September 2013.

Legislation to establish a constitutionally sound Military Court of Australia was introduced into the 42nd Parliament, but lapsed when that parliament was prorogued for the 2010 election.

On 21 June 2012, the Attorney-General introduced the Military Court of Australia Bill 2012, which would establish the Military Court of Australia under chapter III of the Constitution and provide for, among other things, the structure, jurisdiction, practice and procedure of the court.

The Military Court of Australia Bill 2012, and its companion bill providing transitional arrangements and making amendments consequential to the creation of the Military Court of Australia, are still being considered by the parliament. The bills were the subject of an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs, which reported on the bills in October 2012. The committee recommended the bills be passed.

A minority report recommended two amendments:

Australian Defence Force (ADF) members be given the right to trial by jury for services offences punishable by a term of imprisonment exceeding 12 months; and

ADF reservists and standby reservists be permitted to sit as judges on the Military Court to the extent permitted by chapter III of the Constitution.

These dissenting recommendations are the subject of discussion between the government and relevant senators.

While the military court bills remain before the parliament, it is prudent to introduce the Military Justice (Interim Measures) Amendment Bill 2013 to continue the appointment, remuneration and entitlement arrangements for the Chief Judge Advocate and the full-time Judge Advocate for an additional two years, or until the Minister for Defence declares, by legislative instrument, a specified day to be a termination day, whichever is sooner.

This will ensure the continuity of these key military justice appointments until legislation establishing the Military Court of Australia commences and is fully operational.

I commend the bill to the House.

Debate adjourned.