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Wednesday, 9 November 2005
Page: 38


Senator HUTCHINS (12:05 PM) —The Defence Legislation Amendment Bill (No. 2) 2005 gives effect in 2005 to some of the recommendations made by Brigadier the Hon. Mr Justice Abadee in his 1997 report and the Senate’s inquiry into the effectiveness of the military justice system, the report of which was tabled in June of this year. Senator Macdonald and Senator Johnston, who are both in the chamber, were members of that inquiry. That report drew a line in the sand on military justice issues. The committee found that a decade of rolling inquiries—there have been about five—had failed to address the dysfunctionality and unfairness that characterised the system over that time.

The government have only met the committee’s recommendations halfway. In doing so, they have accepted that fundamental reform is needed. But they have also accepted that they cannot squib this opportunity. If they do, then the government know—and the ADF should know—that the pressure on government to take military justice away from Defence’s management will be irresistible. The committee took the view that the ADF cannot be trusted to manage military justice, and the committee’s recommendations were unanimous. I assume that, as I do, my colleagues stand by that recommendation. The government have now given the ADF one more chance. This bill is part of that last chance, and it is heartening to see that the unanimous committee report is yielding results.

This bill will establish the Director of Military Prosecutions, the Registrar of Military Justice and the Inspector-General of the ADF on an independent statutory basis. It will provide for the procedures for the DMP’s appointment, powers, functions, tenure, qualifications, renumeration and legal immunity. In particular, it will also deliver on the government’s promise, made in 2003, to bring in this legislation. The Senate Foreign Affairs, Defence and Trade References Committee heard from Colonel Harvey that the lack of an independent statutory basis significantly impeded the DMP’s work. In blunt terms, the DMP had to have one eye on the interests of military justice and another on their place and future promotion within the ADF’s chain of command.

What the bill does not address is the chronic under-resourcing that currently plagues the DMP. As commanding officers grow accustomed to the role of the Director of Military Prosecutions, they increasingly defer prosecutorial decisions to the DMP. This has meant that the DMP’s case load has increased exponentially in recent years, but the funding and staffing have not matched that increase in demand. This is especially worrying because the committee heard that often resourcing issues can have real impacts on the degree of fairness experienced in the justice system.

In particular, the DMP desperately needs more service lawyers, a greater professional development package between those lawyers and their civilian counterparts in the civilian DPPs, and greater utilisation of reserve lawyers who are prosecutors in their civilian jobs. None of these real measures will be effected by this bill. So, while the government’s delayed introduction is nonetheless encouraging, it is only a half-measure. If the ADF has learned anything from the glare of publicity that it gained from the committee’s inquiry, it knows that the bandaids and half-measures will not stop the rot.

In conclusion, I add that every week the committee secretariat and individual senators are still contacted by serving ADF personnel who have problems with ADF military justice. As I said, not a week goes by in which Dr Dermody’s office in the Senate Foreign Affairs, Defence and Trade References Committee is not contacted by personnel who have a degree of difficulty with the administration and application of justice in the military.

I hope that the bill goes some way towards addressing those problems and making an opportunity for people to go through an established system. That is why Senator Bishop has moved in his amendment words to the effect that we are not comfortable with the current position being put in this bill. However, the bill does go part-way to what the committee recommended. People are still contacting the committee. I still get inquiries each week from service personnel. Once we get this minor move towards the application of military justice for ADF personnel, I hope that those people see that there is a genuine attempt being made by the government and the ADF to ensure that there is a process they can go through to achieve justice in the military system.