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Thursday, 21 June 2012
Page: 7415

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

That this bill be now read a second time.

This bill operates in conjunction with the Military Court of Australia Bill 2012, which I have just introduced, to support a modern, transparent and accountable military justice system. The bill makes amendments to defence and other legislation, consequential to the creation of a new Military Court of Australia. It also provides arrangements for the transition to the new Military Court system from the current interim system of courts martial and Defence Force magistrates, which was put in place after the High Court of Australia found the legislation establishing the Australian Military Court to be invalid.

The new Military Court of Australia will provide a permanent solution for the trial of serious service offences. Courts martial and Defence Force magistrates will be retained as a residual or back-up system. They will only be used in very rare circumstances where it is necessary, but not possible, for the Military Court to conduct a trial overseas.

The bill moves the provisions relating only to courts martial and Defence Force magistrate trials in the Defence Force Discipline Act 1982 to a new schedule 3B of that act. This reflects the restricted operation of courts martial and Defence Force magistrates under the new military justice system. Schedule 3B will also include provisions for appeals to be brought from these service tribunals to the Military Court.

The bill also abolishes the Defence Force Discipline Appeal Tribunal. This tribunal currently has jurisdiction to hear appeals from courts martial and Defence Force magistrates and, previously, the Australian Military Court. However, the jurisdiction of the tribunal will be absorbed by the Military Court.

The court will hear appeals from judgments of the Military Court at first instance, as well as appeals from courts martial and Defence Force Magistrates where they are used in the new system. The vast majority of service offences, which are less serious in nature, will continue to be heard by summary authorities, as is the case under the current interim system. Under the new military justice system, all persons charged with service offences for trial by a summary authority may elect to be tried by the Military Court.

This bill also includes further initiatives to enhance the Australian Defence Force military discipline system. It modernises the existing antiquated provisions dealing with persons found unfit for trial or persons acquitted on the basis of mental impairment. The current system provides only a limited range of options. If they are found to be unfit for trial they can be held in strict custody until the pleasure of the Governor-General is known, or the charge can be referred to the Director of Military Prosecutions.

Under the new regime, these persons will be dealt with similarly to persons found mentally impaired under the civilian criminal justice system. The Military Court will have the option of dismissing the charge and releasing the person, releasing the person subject to certain conditions, or making another other order it considers necessary having regard to the best interests of the accused person, the safety of any other person to whom the order relates and the safety of the community generally.

Many features of the current military justice system will be retained. The current review mechanisms for convictions and punishments imposed by service tribunals will be maintained. The Director of Military Prosecutions will continue to exist as a separate statutory office, and will be responsible for prosecuting charges in the Military Court.

The current arrangements for cooperation and consultation between the Australian Directors of Public Prosecutions and the Director of Military Prosecutions will continue to address any overlap between service offences and civilian criminal offences. Very serious service offences committed in Australia with criminal law equivalents (such as murder and sexual assault) will continue to require the consent of the Commonwealth Director of Public Prosecutions for prosecution in the military justice system.

This bill will ensure that recent initiatives applying to other federal courts will apply consistently to the Military Court of Australia. Important reforms to judicial complaints handling currently before the parliament will also apply to the Military Court of Australia. The bill will provide a clearer approach to the granting of suppression orders consistent with other federal courts.

The bill has been developed in the period since the Military Court of Australia Bill was first introduced in 2010. The government consulted extensively with stakeholders within the defence and legal communities. The consequential amendments and transitional provisions in this bill will ensure the fair and effective administration of military justice during the transition to the Military Court and after its establishment.

This bill, together with the Military Court of Australia Bill, will provide a robust, permanent framework for military justice in Australia. I commend the bill to the House.

Debate adjourned.