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Tuesday, 5 December 2006
Page: 90


Senator MARK BISHOP (7:40 PM) —The Defence Legislation Amendment Bill 2006 is a further instalment in the government’s response to the report of the Senate Foreign Affairs, Defence and Trade References Committee on the effectiveness of Australia’s military justice system. That report was tabled in June 2005, some 17 months ago. The government’s response came 13 months ago. That in itself is an indication of the lack of priority that the government has given this particular matter. And, I may add, it came after six other negative reports on military justice.

This bill makes three principle amendments to the Defence Force Discipline Act 1982. First, it creates the Australian Military Court; second, it creates military juries; and, third, it creates a power for the CDF—the Chief of the Defence Force—to set up a Chief of Defence Force commission of inquiry. It also provides for changed appeal provisions, categorises offences for the purposes of trials and makes a number of other consequential amendments, including transitional arrangements.

At the outset let me state the position of the opposition on this bill. It is one of general criticism. Fundamentally, there is a yawning chasm between the government’s response to the Senate committee report, as reflected in this bill, and the recommendations of that Senate committee. At the heart of this is a deep separation between the government’s acceptance of the military view that military justice should remain within the defence hierarchy and the Senate committee’s recommendation that it be removed to a civilian model. This is a deep philosophical divide marking the determination of the traditional defence establishment to remain a law unto itself, as it has been for many centuries.

Labor was critical of the government’s acceptance of the military review rejecting the committee’s recommendations and, to this date, we remain so. The unanimous, all-party committee view was that, on the damning evidence to that committee, radical reform was essential. Until the essential reform of making the military justice system truly independent, outside the chain of command, the system would remain compromised. It would remain biased and unfair and continue to fail those seeking justice.

This bill implementing the government’s response provides little remedy. In fact, this bill is more of another propaganda effort. The minimal change proposed is presented here as groundbreaking reform. That, by the way, is also the view of the Senate committee. The committee’s views, especially the dissenting views of Labor senators, ought to be noted. The amendments, as we have now seen, are limited. Whilst they have addressed some weaknesses, overall they fail to address our fundamental objection.

The simple reason for Labor’s opposition is that the so-called new system remains part of the military hierarchy. It is staffed by military personnel without any of the attributes which denote proper systems of justice in the modern world. The use of the word ‘independent’ by the minister to describe this new system is simply spin—nothing other than spin.

The presentation of the bill, in both the minister’s speech and the explanatory memorandum, is misleading. The bottom line is that the government wants no change to military justice and is happy to fudge it so that the dysfunctional system will effectively remain in place. As a result, Australia’s fine men and women in the ADF will continue to endure a system of justice that is less than the community standard. We believe they deserve much, much better.

The detail of the Labor argument critical of the bill as a whole has been set out by my colleagues in the House of Representatives chapter and verse. I will not repeat all of those arguments, but I do want to deal with the substance of the amendments. Our original criticism of the military court established by this bill was that it was not a court at all. The old system was prone to bias, compromise, unfairness and abuse of individual rights. The Senate committee recommended that a new military court be established of similar nature to that established under chapter III of the Australian Constitution. As such the court would be established outside the chain of command. It would operate in the same way as a civil court, with independently appointed judges in the standard manner considering all evidence fairly and with all due process. Judges would be drawn from experienced and well-qualified legal people in the community. Defence experience would be secondary to judicial qualifications. As such they would have similar security of tenure as other civil judges and would be appointed by the Governor-General. In short, the committee could see no reason for such a court to retain any trappings of the military.

The court proposed in this bill bears no resemblance to the committee’s model. It is to be comprised of serving military officers who are legally qualified but do not necessarily have judicial experience. Originally, they were to be appointed by the minister for five years only, ceasing automatically on retirement, and denied promotion during office. At least, however, the government has now conceded those weaknesses. The amendments, which we support, transfer the power of appointment and dismissal to the Governor-General. That is a clear win. They also extend the term of appointment to 10 years, though still terminating on retirement from the ADF. That provides for some greater certainty and for building continuity and expertise but it still retains the connection with the chain of command. That is a limited improvement and a minor win.

Retirement from the ADF ought not disqualify any judicial appointment. In fact, it contradicts the power of appointment and removal by the Governor-General alone—and, as we have seen, retirement from the ADF is pretty easy to secure. That attitude was previously expressed in the explanatory memorandum such that if a judge ‘no longer meets his or her individual service deployment requirements’ they may be dismissed. How that sits with the power of the Governor-General is not clear.

Promotion for judges, while still denied during office, is to be automatic after the first five years but to a ceiling rank of brigadier or the equivalent rank in the RAAF or the Navy. This concession at least might remove one small disincentive to becoming a judge. We also support that amendment.

Another amendment changes significantly the attitude to jury trials for category 1 offences—that is, offences of a serious criminal nature. Instead of the provision of six-man juries with majority decisions, the amendment provides for 12-man juries with unanimous verdicts. That is also a win and at least bears some resemblance to the modern civilian model of justice which the government seems hell-bent on denying ADF personnel.

Another amendment to jury trials alters the majority verdict for lesser classifications of offences from four out of six to five out of six. This may be minor but at least it is a concession heading in the right direction, in favour of civilian standards of fairness.

Finally, and most importantly, the amendments concede the point the committee made that this court, whatever its shortcomings, should be a court of record. In fact, it remains breathtaking that the government should have denied this elementary point of fairness and justice in the original bill. But, as always, there is a list of qualifications which potentially render this major concession useless. Clause 13B provides at the end of section 148 the following escape route for secrecy and cover-up—the bane of military justice:

… the Court may order that the whole or a specified part of a record under subsection (1) … is not to be published if the Court considers that such a publication would be inappropriate—

a wonderful word, inappropriate—

taking account of the interests of security or defence of Australia, the proper administration of justice, public morals or any other matter it considers relevant.

Think about that for a minute. Firstly, we have the most mealy-mouthed word possible that you use whenever you make a commitment but you want to enter a caveat to not deliver the commitment—that is, whatever is ‘appropriate’ in the circumstances. Then we say you can take into account the interests of ‘security or defence of Australia’. I am a reasonable man. There may well be a sound proposition that in a military court you should have proper regard to the interests of security or defence when trialling important matters. I believe there is probably an argument for that. But cop this: now the caveat not to have a record of proceeding is extended to ‘the proper administration of justice’. So we are in the situation where we have a tribunal, called a court, dispensing justice, but the ‘proper administration of justice’ can be used as a reason not to have a record of proceedings. If that is not Monty Pythonesque, what is?

But it gets even better. Whatever are ‘public morals’ in relation to the administration of military justice for serving personnel charged with civilian or other offences? If that is not good enough, if that is not wide enough—interests of security, defence, proper administration of justice, public morals—there is ‘any other matter it considers relevant’. That is the caveat that is entered into the creation of a court of record. So the extent to which the new court might be a court of record could easily become a fiction, as we have seen these smokescreens used time and time again to cover the truth. Putting it politely, we appreciate the concession but remain sceptical as to the honour of its intent.

There are various other amendments concerning terms and conditions of appointment from state jurisdictions and contempt of court matters which were clearly drafting oversights. Refinements have also been made to the process of jury deliberation. The opportunity has been taken to finetune those provisions as well as others in what seems to have been a pretty hasty drafting task in its first instance. The opposition supports those amendments. They go some way towards removing the committee’s objections to the bill, but stop well short of an ideal solution. It is a salutary experience to have dragged a stubborn government so far, but we know that the quality of military justice will improve, albeit not to optimum levels. On behalf of serving ADF personnel, we live in hope that the government’s attitude, denying them the standards of civil justice, might continue to mellow.

There remains, however, a significant issue with this proposed military court which is yet to be resolved. It concerns the status of the court as considered by the High Court. This particularly concerns the court’s jurisdiction over criminal matters, for which it is considered to be ill-equipped. In legal terms, there has long been a debate about the authority of military tribunals, which have been challenged in the High Court for their lack of judicial independence and impartiality. The view expressed by the Judge Advocate General is that, the closer such a tribunal can be aligned with arrangements for a court established along the lines of a chapter 3 court, the less likely a challenge might be. The pity is that, if the government had accepted the committee’s recommendations for a military court akin to those established under chapter 3 of the Constitution, this doubt could have been avoided. In fact, there is now a number of new applications before the High Court retesting this very issue with respect to existing military tribunal decisions.

These amendments do go some way to giving the court some enhanced status compared with the original draft. This especially concerns the court being made a court of record—though the qualifications, as I discussed before, are of ongoing concern. The court still looks like it is part of the chain of command, and the minister’s fine words change nothing. Indeed, as the Judge Advocate General of the ADF has stated in evidence to the Senate committee, this court looks like a tribunal. The consequences, however, are very serious. As the JAG pointed out in his evidence to the committee:

The AMC will have complete (and exclusive) Australian jurisdiction over members of the ADF outside Australia ... Given the present and likely future tempo of operations and exercises, it is entirely foreseeable, if not likely, that there will be charges of the most serious offences (such as rape or murder) against members of the ADF at some stage. The AMC would be the only Australian court which would have jurisdiction. The notion that such charges would be dealt with by a body described as a ‘tribunal’ ... is extraordinary.

The JAG went on to say that the bill represented a wasted opportunity to establish a military court with proper independent status.

Labor’s view is that, if this court is to remain, it should have its jurisdiction limited to service disciplinary matters. As a minimum, it should not preside over civilian criminal offences committed overseas. The Law Council of Australia is equally scathing in its criticism of the proposed court. This is not just for legal reasons but also for practical reasons of recruitment, retention, and the strong perception of a lack of independence.

In my few remaining minutes I will turn to the other main provision, that of the proposed Chief of Defence Force commission of inquiry. This does have something to recommend it in that such inquiries will be mandatory and the appointee to conduct it will be a civilian with judicial experience. This would appear to be somewhat of a contradiction to the hardline attitude to the military court on which only ADF personnel can serve. So what is it about a CDF commission which is so different with respect to real independence from the chain of command ? It would seem that, at last, the repeated tragic deaths by suicide of young people in particular have hit home. If this is a personal expression by the CDF of his commitment to fix the problem, we are all pleased. We support this proposal because it is a step in the right direction. Indeed, it is a great pity that the initiative was not taken many years ago. As I am advised, it is something which does not need legislation. In fact, there has been speculation that the process could have been used in lieu of the board of inquiry into the death of Private Kovco. It is a great pity that such an opportunity was not taken. As we have seen, the board of inquiry report has already been widely reported in the media as a whitewash. Regrettably, a comparison of the evidence taken, and the contents of the report, do lead to that conclusion.

In the last decade, 79 ADF personnel have taken their own lives. That is both distressing and appalling. Yet we know so little of the causes, except that bullying and harassment seem to be common elements. Having an improved system of investigation truly independent of the military is a good start. Beyond that, though, it is difficult to see any other change for the better. A culture of bullying and harassment is entrenched in the ADF and little has been seen to change. For example, of those 79 suicides, no disciplinary action was ever taken against a single person. This is perhaps further evidence of the link between a failed military justice system and failed discipline.

The government would like us to think that the evil of bullying has been exorcised. If we could believe recent media stories of the new world, such as the very rosy story that appeared on Four Corners a few weeks ago—and we would like to—we should all be pleased. Then again, it is not long since the death of Trooper Lawrence from heatstroke in the Northern Territory last year on which no action was taken. The coroner found that the death was the result of negligence and Comcare is suing Defence for the maximum penalty under Commonwealth occupational health and safety law. Yet, in answers to my questions on notice, the coroner’s opinion was dismissed and the evidence of a prior warning was denied. This is simply not credible, so we await the Federal Court decision on the appeal with great interest.

However, this proposal for CDF commissions is also subject to some serious criticism from the Law Council—again, unheeded. The Law Council’s view is that, if this provision is to be enacted through regulation, there may be undesirable consequences. The council believes that, given its seriousnessness, the essential provision should be in legislation, not in regulations, and subject to direct parliamentary scrutiny. Labor supports that proposition. The reason for this view is that there are many practical considerations which have been overlooked.

First, it is not considered practical to have such an inquiry into every death in the ADF, including road accidents. It is noted, though, that the council includes suicides in this category, with which we could not agree except to the extent that a CDF inquiry should not proceed until the coroner has determined cause of death. There is nothing more distressing than the suicide of a young person in particular, and we believe such occasions must be examined with the utmost care. The conflict with the powers and responsibilities of state coroners and the lack of suitable arrangements with some states is cited as another concern whereby the CDF inquiry could be unnecessarily complicated.

Finally, the Law Council is concerned at the availability of civilian judges to conduct what could be up to 40 inquiries a year, when the demands on the judiciary are already very high. The council’s suggestion that a wider pool of expertise be provided for, including retired judges, QCs and SCs, is a sensible recommendation which we support. The opposition supports the bill and its principal amendments.