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Tuesday, 5 December 2006
Page: 96

Senator HUTCHINS (8:08 PM) —The incorporated speech read as follows—

The process by which this legislation has come about has been long and involved a great deal of exposition of the personal pain of many individuals formerly and currently serving in the ADF.

This bill is directly a response to the recommendations of the then Senate Foreign Affairs, Defence and Trade Committee References Committee’s report into military justice in 2005.

I chaired that inquiry, and I, like other Senate colleagues also serving on that committee, heard from numerous witnesses who had been dealt with poorly by the military justice system.

Military justice in this country has been exposed to significant examination over the past 10 years, ostensibly stemming from a continual failure in its ability to deliver justice in a fair and independent way.

Three High Court challenges and another underway, as well as six separate coronial, judicial and Parliamentary inquiries have all challenged the legitimacy of the system of justice administered by the defence forces.

Notwithstanding the valid argument that the ADF at times has cases particular to it, it is not true to say that only the ADF is best disposed to handle those cases.

In fact, the evidence before us suggests the opposite. The evidence before us suggests that the ADF is incapable of properly investigating cases and prosecuting them in a fair and timely manner.

There was a litany of examples brought before the 2005 inquiry of just such inadequacies.

That inquiry found that the administration of complaints was not adequate, and this was reflected in many of the submissions. There is an unfortunate and obviously incompatible convergence of the principles of criminal law and the heaving machinery of Defence bureaucracy. This nexus has produced a system rife with untrained or inadequately trained investigators; delays of several years, in some cases, in the processing of complaints; and a general lack of independence.

This has led to complainants and witnesses receiving no protection from those higher in the chain of command, and in fact have fell victim to a culture that disproves of a ‘breaking of the ranks’.

None of this is news to the Government, and in fact the point has been made continually over the past decade, and most recently this week with the release of the ADF-commissioned audit into its investigative capabilities.

The audit showed a culture of obstructing investigations by commanding officers and a chronic lack of skilled military police whose enormous caseloads are leading to delays in the resolution of investigations.

Not surprisingly, a great chunk of complaints about military justice—one in six, as a matter of fact—are directed against the military police.

The consequences of the failings of the military justice system have a very human face. They are the individuals who have felt victimised and persecuted because they have spoken out against injustices they have witnessed in the ADF, but have not been afforded the appropriate protections by senior personnel. Some of these individuals have seen their career stall or lie in tatters after spending years defending themselves against what they see as a service-wide hostility towards them. In more extreme cases, those particular individuals have been driven to more desperate means and resorted to suicide.

Left behind are the families of these individuals who have seen their loved ones crumble under incredible pressure and never dealt the justice they were searching for.

This legislation is the Government’s response to the deficiencies in the system I have just outlined.

This response, however, is entirely inadequate.

At the centre of the Government’s approach to this issue is its belief that the military justice system should remain wholly within the hierarchy of Defence.

The situation that this perpetuates is that the military judges the military. The justice meted out by the military is steeped in the very culture that the dozens of people who came forward before the Senate inquiry complained of.

This is the culture that has also been blamed for obstruction in the ADF audit into the effectiveness of its military police.

We needed to see in this legislation a ground-up reform, where the military justice system was removed from the chain of command and made truly independent.

This bill claims to do that by allowing a fixed, 10-year tenure for military judges, who would be, according to the logic of this legislation, above and beyond the chain of command.

But those who are appointed military judges are still derived from the military itself.

They are required to have sufficient experience in the services, and equally sufficient judicial skills.

This will lead only to the selection of people who are products of the culture that has attracted so much criticism.

The bottom line is the Government is not supportive of systematic reform, they are content to fiddle at the edges and see the continuation of the injustices the system has produced thus far.