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Monday, 4 December 2006
Page: 64

Senator SANDY MACDONALD (Parliamentary Secretary to the Minister for Defence) (4:38 PM) —I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

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

Leave granted.

The speech read as follows—


In October 2005, in his speech tabling the Government response to the 2005 Senate report into the effectiveness of Australia’s military justice system by the Senate Foreign Affairs, Defence and Trade References Committee, the previous Minister for Defence, Senator Robert Hill, commented that the Australian Defence Force does a truly magnificent job in defending this nation and its interests. He also added that the government was committed to providing the best equipment and conditions of service to ensure that the ADF is a modern fighting force and that hand in hand with this, is a determination to provide a military justice system that is as effective and fair as possible.

The Government continues to express its admiration of defence personnel undertaking important and often dangerous activities in Australia and on overseas operations.

The Government is also committed to reforming the military justice system to address the concerns of defence personnel, the parliament and the community, by continuing its commitment to the objectives outlined by Senator Hill. Therefore, this bill is designed to make significant enhancements to the military justice system, which in turn will facilitate a confidence in that system among those who it serves.

As Senator Hill commented, the changes are intended to provide for and balance the maintenance of effective discipline and the protection of individuals and the rights of Australian Defence Force members.

The bill introduced today creates a permanent military court to increase confidence in the military justice system among those it serves. The new Australian Military Court will operate independently of the chain of command. The essence of this judicial independence is reflected in the bill through the principles of security of tenure, security of remuneration, and administrative independence. However, the new Australian Military Court must still meet the unique requirements of the ADF, such as the ability to deploy quickly and sit in an operational theatre.

The intent of the bill is to continue to demonstrate the Government’s commitment to installing a ‘best practice’ military trial system for Australian Defence Force members and to establish a qualified and experienced ‘military judiciary’ to ensure a fair hearing and natural justice, in the context of the enduring need of the Australian Defence Force to maintain effective discipline, and through that operational effectiveness.

In meeting this unique mix of requirements, the bill must reflect good practice from both a legal and military perspective, particularly in relation to:

  • the essential military character and status of the Australian Military Court;
  • the structure of the court to meet its predominant case loads, and in exceptional circumstances the capacity to deal with the most serious offences;
  • the attractiveness of the military judge appointments to the optimum pool of candidates;
  • the maintenance of levels of experience among the military judges; and
  • the rigour of the military jury decision processes.

The features of the Australian Military Court will include the following-

  • the statutory appointment of military judges by the Governor General, including a permanent Chief Military Judge and two permanent Military Judges. These will be selected from all the available qualified full or part time legal officers;
  • a part-time Reserve panel of judges, selected from all the available qualified Reserve ADF legal officers;
  • security of tenure (10 year fixed terms);
  • remuneration of military judges to be independently set by the Remuneration Tribunal;
  • military judges to be eligible for an automatic ‘mid term’ promotion during his or her tenure;
  • military judges, to sit alone or with a military jury. The concept of a military jury is a new one. A trial by military judge and jury will be akin to a trial by court martial and a trial by military judge alone will be akin to a trial by a DFM;
  • the size of a military jury to be aligned to the constitution of a military jury with a class of offence. For example, for a class 1 offence, a jury of 12 members will be required. A class 2 or 3 offence will require a 6 member jury. The determination of questions (by unanimous or majority verdict) will be by a unanimous or alternatively, by a five-sixths majority. This will reduce the potential for a ‘hung jury’ and allow for the examination of jurors where unanimous agreement cannot be reached. The effect of these provisions will be to increase the rigour of the decision making process;
  • fully deployable, able to sit in theatre and on operations. A principal factor of the Australian Military Court that is peculiar to the Defence Force, is the military preparedness requirements and physical demands of sitting in an operational environment. This requires not only the necessary qualifications to perform the ‘judicial’ functions of a military judge, but also to satisfy the medical, training and physical fitness requirements.

The bill also introduces a new concept of Class 1, 2 and 3 offences.

As foreshadowed above, it is intended that offences will be dealt with either by military judge alone or by military judge and military jury. In some cases, the latter will be mandatory (Class 1 offences).

Trial by military judge and jury may also occur in respect of Class 2 offences, except where the accused elects to be tried by military judge alone. The accused may opt for trial by military judge alone in certain circumstances. However, whichever mode of trial, it is intended that a military judge will determine the sentence.

For a Class 3 offence, while the default position for trial will be by military judge alone, the accused may elect to be tried by a military judge and jury. All class 1, 2 and 3 offences are outlined in the bill and replicate the current offences in the Defence Force Discipline Act.

As I mentioned above, to better maintain a consistent level of experience on the court and to demonstrate security of tenure, judicial independence and prospect of career progression, the tenure of the Chief Military Judge and military judges is to be for a fixed period of 10 years. However, whilst there is this statutory 10 year period of appointment, a Military Judge may serve a shorter period, for example in the case where he or she retires on reaching compulsory retirement age.

Whilst their will be no opportunity for reappointment, there are provisions which allow for automatic promotion and acting appointments in certain circumstances.

The acting appointments will enable a former Chief Military Judge, military judges or civilian judicial officers serving in the Reserve to try a charge and take action certain action where the charge may require specific expertise. It will also encourage the professional development of currently serving (ADF) former military judges, which will in turn maintain the availability of their skills and experience in the future.

The promotion provision will also recognise the status and importance of the appointments and increase the attractiveness of the positions to the Australian Defence Force legal officer corps.

The Australian Defence Force currently has, as Reserve members, serving judges and magistrates from federal, State or Territory courts. The bill will preclude a judge or magistrate from a federal, State or Territory court, appointed as a part time or acting military judge, from receiving remuneration under the DFDA if they receive salary or annual allowances by virtue of their judicial office.

The rationale for these a provisions is not only to reinforce the independence and impartiality of judicial office, it is to counteract any perception of financial advantage, incentive, or inducement in the remuneration arrangements surrounding appointment of a part time or acting military judge.

To further demonstrate the independence and impartiality of these positions, it is intended that the Governor General appoint the Chief Military Judge or a military judge, following an independent merit selection process.

As I mentioned earlier, a former Chief Military Judge or military judge or other judicial officers (for example a judge or magistrate of a federal court or a court of a State or Territory serving in the Australian Defence Force) will be able to act as a military judge, in circumstances where the expertise or experience of that person is required in respect of a particular charge.

However, the bill will also ensure that a State or Territory judge or magistrate will not be financially disadvantaged by the operation of the proposed provisions, whereby the Minister can enter into any arrangement that might be necessary to secure the services of such a judge (this also includes the possible reimbursement of a State or Territory by the Commonwealth).

To enhance the status of the AMC, the bill will specify that the AMC is a court of record, noting however that there will be provision to limit the publication of proceedings in the interests of security or sensitivity.

In establishing the Australian Military Court, consequential amendments will also be required to Defence and other portfolio legislation to remove the court martial and Defence Force magistrate trial system with that of the new Australian Military Court regime.

Appeals will be available from the Australian Military Court to the Defence Force Discipline Appeals Tribunal (under the Defence Force Discipline Appeals Act 1955). This replicates the current system of appeals from Court martial or Defence Force magistrate decisions, however, it will be extended to include appeals on punishment (noting that such an appeal may result in an increased punishment).

Proceedings before the AMC are intended to reflect the unique culture and traditions of the Australian Defence Force, whilst not being unduly formal or protracted. That said, to facilitate fair and expeditious proceedings, the bill will introduce the availability of evidence via video and audio links to be accepted in the Australian Military Court.

The basic model of the evidentiary provisions of the DFDA will be retained, however, these provisions will be extended by providing for evidence by affidavit, video link, telephone or other appropriate means, similar to provisions in the Federal Court of Australia Act 1976. The intention of these provisions is to facilitate the most effective and efficient collection of evidence that will enable a fair outcome for the accused and minimal inconvenience to witnesses or parties to the proceedings.

To complete the establishment of the Australian Military Court, further provisions include:

  • jurisdiction of the AMC. It’s jurisdiction will be in respect of the same offences as those dealt with previously in a trial by court martial or Defence Force magistrate;
  • stamp and seal of the AMC;
  • staff of the Australian Military Court;
  • procedural matters, for example, rules of court to be made by the Chief Military Judge;
  • legal representation for an accused, facilitated by the new Director of Defence Counsel Services, on a national rather than regional basis;
  • annual report to be prepared by the Chief Military Judge on the management and administration of the Australian Military Court

The Judges Pensions’ Act 1968 will be amended so that a military judge appointed to the AMC under the DFDA is not eligible for a pension pursuant to the Judges Pensions’ Act. This will give effect to the intent that as the AMC is a federal court and the proposed term of appointment is for 10 years, an unintended consequence would see military judges being eligible for pensions under the Judges’ Pensions Act 1968, in addition to the military pension scheme that applies to all Defence Force members. In order to correct this anomaly, the bill amends the Judges’ Pensions Act 1968 to prevent the payment of pensions to military judges under that Act.

Another measure in the bill is to amend the Defence Act 1903, to facilitate the creation of a ‘Chief of Defence Force Commission of Inquiry’. The Government agreed in its response to the Senate Report that the Australian Defence Force conduct independent and impartial inquiries into notifiable incidents including suicide, accidental death or serious injury. An independent civilian with judicial experience will be the Commission President.

There will be a need for further amendments to the Defence Force Discipline Act, as additional parts of the government response to the report are implemented in the near future.

A modern and professional force deserves a modern and effective system of military justice. With the reforms contained in this bill, the government will provide a system that will better ensure impartial and fair outcomes and that strike a balance between the need to ensure effective discipline within the Australian Defence Force and to protect individuals and their rights.

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