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Thursday, 21 June 2012
Page: 7413


Ms ROXON (GellibrandAttorney-General and Minister for Emergency Management) (09:02): I move:

That this bill be now read a second time.

I am particularly pleased that the Minister for Defence is at the table when we are introducing this bill.

This bill establishes the Military Court of Australia in accordance with chapter III of the Constitution. This new Military Court will provide a permanent solution for the trial of serious service offences. It also forms a central component of the government's commitment to deliver a federal courts system that is open and transparent, modern, efficient—and, most importantly, accessible to all those who need it. Australia's military justice system is structured to support command in reinforcing discipline and enhancing operational effectiveness.

Military discipline which supports the authority and effectiveness of commanders is of vital importance in the operation of the Australian Defence Force. The 2005 Senate Foreign Affairs, Defence and Trade References Committee report, The effectiveness of Australia's military justice system, recommended that the Australian Defence Force abolish the court martial system and introduce a system of trials of serious service offences by a permanent military court established under Chapter III of the Constitution. The former government's legislative attempt to establish a Military Court was found constitutionally invalid by the High Court in 2009 in the matter of Lane and Morrison. This government acted quickly following that decision to put in place an interim system of courts martial and Defence Force magistrates, but has also developed a comprehensive legislative framework for a distinct Chapter III military court.

The Military Court of Australia will be a separate and uniquely identifiable federal court. This specialist court to hear Defence Force service offences will strengthen morale and operational effectiveness in the Australian Defence Force. This bill will provide the Military Court with the necessary independence and constitutional protections necessary for an impartial judiciary. Importantly, judicial officers cannot be appointed if they are currently serving in the ADF. Requirements for the appointment of judicial officers have also been strengthened in response to stakeholder feedback after a similar bill was introduced by my predecessor on 24 June 2010.

Under this legislation, all judicial officers appointed to the Military Court will be required to, by reason of experience or training, understand the nature of service in the Australian Defence Force. This will ensure that all who are appointed to the Military Court will have a proper appreciation of the nature of service offences and the impact that they can have on maintaining service discipline. Judicial officers will be appointed in accordance with the government's transparent and merit-based appointments process. Matters in the Military Court will be tried other than on indictment, and therefore determined by a judicial officer who would give reasons for the verdict and sentence. The court will not include the option of a trial by jury. This is for two key reasons.

First, service offences are created for the purpose of maintaining discipline in the ADF. The military justice system complements and does not replace the criminal law in force in Australia, and so need not mirror the civilian court process. However, when ADF personnel commit criminal offences within Australia, they will continue to be tried by jury within the civilian criminal law system. Second, where there is need to try a service offence overseas, a requirement to empanel a civilian jury would create significant practical barriers to the prosecution of offences.

The High Court has held that it is for parliament to decide which offences are to be tried on indictment, and which can be tried other than on indictment. The Military Court will generally be expected to try service offences in Australia, regardless of where the offence is committed. In the rare circumstances that it is necessary but not possible for the Military Court to try an offence overseas, a back-up system of courts martial and Defence Force magistrates will be able to hear the matter. This residual system is provided for under the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill, which I will speak to shortly.

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 vast majority of less serious service offences—approximately 96 per cent of all service offences—will generally continue to be heard by summary authorities at unit level. However, the General Division of the Military Court may try less serious offences. This may occur where an accused has made an up-front election or where the Director of Military Prosecutions refers the matter to the Military Court.

The Appellate and Superior Division will consist of judicial officers at the level of a Federal Court judge. It will hear very serious service offences, which are prescribed in the bill, at first instance. The Appellate and Superior Division will also hear appeals from first instance decisions of the Military Court, and decisions of a court martial or Defence Force magistrate made overseas. There will be no appeal by the Director of Military Prosecutions from the acquittal of an accused person. This change has been incorporated in the bill since it was last introduced following comments made by representatives of Defence personnel.

The Military Court of Australia will be a separate Chapter III court, and will be administered through the Federal Court of Australia. It is expected that the court will use the existing infrastructure of the Federal Court. This will ensure smooth and efficient arrangements for the court's administrative affairs on an ongoing basis. The government has worked extensively with members of the defence and legal communities in developing these bills over the past two years, and we thank those who have made valuable contributions in this process.

The Military Court of Australia will provide a robust framework for military justice and ensure that members of our Defence Forces, the wider Australian community, and the nations in which our forces are called to serve will retain full confidence in an open and transparent justice system. Its creation complements reforms already announced and in train following the Skehill review into federal courts and other agencies in the Attorney-General's portfolio. It demonstrates this government's commitment that all people should have access to an independent and impartial judicial process. I commend the bill to the House.

Debate adjourned.