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Wednesday, 12 October 2005
Page: 1


Senator PATTERSON (Minister for Family and Community Services and Minister Assisting the Prime Minister for Women’s Issues) (10:02 AM) —I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

DEFENCE LEGISLATION AMENDMENT BILL (No. 2) 2005

This bill makes various amendments to the Defence Force Discipline Act 1982 and Defence Act 1903 including the creation of three new statutory appointments for the Director of Military Prosecutions, Registrar of Military Justice and Inspector General of the Australian Defence Force. The amendments indicate the government's ongoing commitment to ensuring an open, transparent and fair military justice system.

The amendments in the bill are consistent with the Government’s response to the 2005 Senate Report into the Effectiveness of Australia’s military justice system. . There will be a need for further amendments as additional parts of the governments’ response to the report are implemented in the future.

This bill will also give effect to certain recommendations contained in two previous reports made by Brigadier the Honourable Mr Justice Abadee in his Study into the Judicial System under the Defence Force Discipline Act (the Abadee Report) and Mr James Burchett QC in his Report of an Inquiry into Military Justice in the Australian Defence Force (the Burchett Report). The proposed amendments contained in the bill will, among other things, eliminate the role of a convening authority and will allocate these prosecution functions to a “Director of Military Prosecutions” and a “Registrar of Military Justice”. The Burchett Report recommended the establishment of the Director of Military Prosecutions as an independent prosecutorial authority for the Australian Defence Force (ADF), which would undertake prosecutions of members of the ADF facing trial by either court martial or Defence Force magistrate under the Defence Force Discipline Act.

Turning firstly to the measures amending the Defence Force Discipline Act set out in Schedule 1 of the bill.

There are four major measures included in the bill that relate to the Defence Force Discipline Act.

The first relates to the establishment of a statutory position of the Director of Military Prosecutions. As mentioned, these changes will implement recommendations from the June 2005 Senate Report and previous reports into the military justice system. The creation of Director of Military Prosecutions will make the prosecution of serious offences under the Defence Force disciplinary system similar to the prosecution procedures used in the civil criminal system.

In addition to creating the position, specifying the required qualifications for the position and mechanism for the appointment of Director of Military Prosecutions, the bill makes provision for the determination of the remuneration, the provision of staffing, and the roles, functions and powers of Director of Military Prosecutions.

Principally, the Director of Military Prosecutions will be responsible for decisions on what charges should be tried before a court martial or Defence Force magistrate, the provision of a prosecutor for those charges, and the power to, if required, either initiate charges or direct that charges not be proceeded with.

The second measure creates a statutory position of the Registrar of Military Justice. The creation of the Registrar of Military Justice also implements recommendations from previous reports into the military justice system to ensure an open, transparent and fair military justice system. The bill makes provision for the required qualifications, mechanism for appointment, and determination of the remuneration of the Registrar of Military Justice, along with the roles, functions and powers of the Registrar. The Registrar will be responsible for the panelling and administration of courts martial, and the administration of Defence Force magistrate trials.

The third measure terminates the establishment of convening authorities. Currently a convening authority is a senior commander appointed by a Service Chief. The convening authority decides whether the prosecution of a service offence should proceed before a court martial or a Defence Force magistrate or not at all. The roles of a convening authority will predominantly be distributed between the Director of Military Prosecutions and Registrar of Military Justice. However, to ensure that the Director of Military Prosecutions is aware of the service aspects of offences, the bill creates the concept of a Superior Authority. The functions of a Superior Authority will be performed by senior officers, and most likely by the appointments currently performing functions as convening authorities.

Finally, the bill makes provision for the remuneration of the existing statutory position of the Chief Judge Advocate to be determined by the Remuneration Tribunal. This is similar to what is proposed for the remuneration of Director of Military Prosecutions and Registrar of Military Justice. It should ensure consistency between the three positions.

The amendments to the Defence Act set out in Schedule 2 of this bill relate to the Inspector General of the Australian Defence Force.

An essential feature of an effective armed Service is the need for discipline which is, and is seen to be, rigorously enforced. Failures in the military justice system, when they occur, not only soon become publicly known, but if not properly dealt with, can quickly result in damage to reputation, morale and ultimately, operational effectiveness. The military justice system must meet its obligations to ensure that ADF members are treated fairly and in accordance with the law.

In the 2001 Burchett Report it was recommended that a Military Inspector General be appointed to provide the Chief of the Defence Force with constant scrutiny of the military justice system, independent of the ordinary chain of command.

To give effect to this recommendation, the Inspector General of the Australian Defence Force was administratively established with effect from 13 January 2003. The role of the Inspector General ADF is to provide the Chief of the Defence Force with ongoing review of the military justice system, independent of the ordinary chain of command. This includes both ADF discipline and Defence inquiries system.

To ensure that the position is independent of the normal military chain of command and has the capacity to act impartially and with the appropriate authority, the bill will formalise the position in the Defence Act.


ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION AMENDMENT BILL 2005

The purpose of the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 is to make amendments to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and to the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 preserves and protects places, areas and objects of particular significance to Aboriginal and Torres Strait Islander people. It contributes to this protection at the national level, but is available concurrently with the laws of most Australian States and Territories. In 1987, however, it was extended to include a series of provisions that would apply specifically to, and only in, Victoria. These provisions serve the national framework for Indigenous heritage protection, at the State level, but they also stand in the way of State legislation being put in place by Victoria for this purpose. All other States and Territories have legislation to protect this heritage. The Victorian Government wrote to the Australian Government this year to explore how this obstacle could be removed to allow proposed new Victorian cultural heritage legislation to be put in place.

This bill proposes to amend the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to remove the Victoria-specific provisions. The Australian Government legislation will then provide the same level of protection in Victoria that it provides for Aboriginal and Torres Strait Islander heritage in other parts of Australia. Pursuant to the amendments contained in the bill, the Victorian Government will then be able to administer Aboriginal heritage protection directly through its own new legislation, as is the case for all other Australian States and Territories.

The Victoria-specific parts of the Australian Government legislation will not be removed, however, until a time to be set within a 12-month period. This will allow their repeal and replacement by the proposed new Victorian legislation in a coordinated fashion and prevent any lapse in protection for Victoria’s significant Aboriginal cultural heritage.

The consequential amendments to the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 contained in the bill remove references to the Victoria-specific provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The consequential amendments would remove an exception to the obligation upon two Aboriginal landowner corporations to not disclose information about sacred or significant places without the appropriate permission. After the amendment, the obligation to protect the information about sacred or significant sites will continue without exception.

The bill makes other changes to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 that are needed to ensure that Australians continue to have opportunities to see, in Australia, significant Aboriginal cultural heritage objects that are owned by institutions overseas.

Museums and other cultural institutions in Australia are often entrusted with objects under contractual and other loan arrangements for temporary exhibition in Australia. Overseas institutions are reluctant to loan material unless they have the protection of a certificate under the Protection of Movable Cultural Heritage Act 1986, to allow the return of the important objects to the lender and owner overseas. Recently, the return of a number of loaned Aboriginal objects was prevented by declarations made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. This occurred even though a certificate to allow return had been obtained under the Protection of Movable Cultural Heritage Act 1986. The objects were eventually returned, but only after court proceedings. Uncorrected, this kind of uncertainty would discourage overseas institutions from ever allowing items from their collections to be exhibited in Australia.

The bill provides that a certificate allowing the return of loaned cultural heritage objects cannot be overridden by a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. In this way, it will help to secure the framework for future international cultural exchanges of benefit to Australia.

The bill also provides for technical amendments to be made to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to bring it into line with the Legislative Instruments Act 2003. These amendments help clarify which class of instruments contained in the Act are non-exempt legislative instruments for the purposes of the Legislative Instruments Act 2003.

Ordered that further consideration of these bills be adjourned to the first day of the next period of sittings, in accordance with standing order 111.