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Tuesday, 5 December 2006
Page: 98


Senator SANDY MACDONALD (Parliamentary Secretary to the Minister for Defence) (8:08 PM) —by leave—I take the opportunity to sum up and acknowledge the opposition’s general support for the Defence Legislation Amendment Bill 2006. I also acknowledge the contribution that the shadow minister, Senator Bishop, made to this debate and his interest in this very important area of reform.

As the Senate will recall, in October 2005, in his speech tabling the government’s 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, a committee that I was on—and I think you were too, Mr Acting Deputy President Hutchins—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. Those words were very prescient, of course, as the last couple of years have certainly shown, as they continue to do a truly magnificent job in protecting our interests both at home and abroad.

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 effective and as 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 at that time. This bill is designed to make a significant enhancement to the military justice system which, in turn, will facilitate a confidence in that system among those that it serves. I would say that if further reforms are necessary as time goes by, they will certainly be considered by the government.

There were a number of questions that Senator Bishop raised that I will respond to in a general sense. The first question he raised was: how will the Australian Military Court ensure its impartiality and judicial independence? He made that general reference. The AMC will be a statutorily established service tribunal which will be independent of the chain of command to enhance its impartiality. The AMC will report to the parliament, not the chain of command. Military judges will be statutorily appointed by the Governor-General and will have security of tenure and remuneration set by the Commonwealth Remuneration Tribunal, further enhancing this independence from the chain of command. The court will be provided with appropriate administrative support, led by the statutorily appointed registrar, so that it can function independent of the chain of command. The military judges will also not be subject to the DFDA in performance of their judicial function. Specialist legal advice from the Australian Government Solicitor was obtained to confirm these arrangements. The AMC will give members of the ADF an impartial, independent court.

A second question that Senator Bishop raised was: will the creation of the AMC provide the ADF with a best practice military trial system? The answer to that is yes. The AMC will contribute to the military justice system’s aims of impartial, rigorous and fair outcomes through enhanced oversight, greater transparency and improved timeliness. The provisions for the AMC include a limited jurisdiction, statutorily appointed military judges, a military jury for certain offences and a statutorily appointed registrar. Offences will be prosecuted only through the office of a statutory DMP. An accused will have defence counsel in all cases, and this would be a legal officer, at no expense to the accused. Provision of defence counsel will be managed by the Director of Defence Counsel Services. In combination, these provisions are world’s best practice for a military court.

Senator Bishop also raised some questions about the CDF commissions of inquiry. I will pose the question: why are those personnel with civilian judicial experience able to preside over a CDF COI and not as a military judge on the AMC? The response is that the AMC and a CDF commission of inquiry serve different legal purposes. The AMC tries service offences and may impose a conviction and punishment under the Defence Force Discipline Act. A CDF commission of inquiry is a fact-finding administrative inquiry. The AMC is deployable and must be able to try service offences on overseas operations. Accordingly, it is necessary for a military judge to be a member of the ADF, who meets military standards for deployments.

A civilian with judicial experience who is a president of a CDF commission of inquiry conducts a fact-finding administrative inquiry. The procedures for a CDF commission of inquiry are set out in the Defence (Inquiry) Regulations 1985. This form of inquiry is similar to a general court of inquiry appointed by the minister, a combined court of inquiry appointed by the minister, and a board of inquiry appointed by the CDF and the secretary, the CDF or service chief or other delegated officers. These inquiries do not apportion blame, and there is no determination of criminal liability for an offence. A panel of suitably qualified civilians has been identified and is now available to participate in both the interim and final arrangements for the CDF COI. Other members of the BOI-COI may be either civilian or military and are selected on the basis of their expertise relative to the nature of the incident under inquiry.

Why are the provisions relating to the Chief of Defence Force commission of inquiry contained in the regulations and not in the act? The bill provides for amendments to section 124 of the Defence Act 1903 to create a CDF commission of inquiry, which will be presided over by a civilian with judicial experience. The detailed provisions relating to the procedures for a CDF commission of inquiry are being developed for inclusion in regulations. The Senate report provides no rationale for including the procedures for a CDF commission of inquiry in the act rather than in regulations.

The provisions relating to the appointment and procedures for a general court of inquiry by the Minister of Defence; a combined board of inquiry by the minister; a board of inquiry by the Secretary of Defence and the CDF, the CDF, the service chiefs or other designated persons; an investigating officer inquiry by the CDF, service chiefs and other commanders; and investigations by the Inspector General ADF are all set out in the Defence (Inquiry) Regulations 1985. Consistent with this arrangement, the essential provisions relating to a CDF commission of inquiry are being included in the regulations rather than in the act.

The placement of legislative provisions concerning the appointment and procedures for a CDF commission of inquiry in the regulations will ensure consistency with all other ADF inquiries legislation. Additionally, in order to clarify the role of coroners and the ADF, in the event of a service death, the ADF and state/territory coroners have been negotiating a form of understanding governing the relationship and operating procedures between the various parties concerning deaths of service personnel and coronial jurisdiction. It was agreed that each coroner would write separately to the CDF outlining the protocols to be observed between the two parties with regard to that particular coronial jurisdiction. To date both Victoria and Tasmania have provided such protocols. The remaining coroners are engaged with Defence with a view to agreeing on similar protocols.

Finally, do members of the ADF give up their rights as an Australian once they have joined the ADF? Clearly, no; Defence Force personnel are subject to the same laws and rights as apply to other Australians in addition to the Defence Force Discipline Act. However, the ADF applies a far greater level of additional regulation than that encountered in other forms of employment and demands behaviour which is consistent with its roles as an armed force. In that regard it is a unique employer.

Proscribed behaviour under the DFDA includes not only matters of a criminal nature applicable to the general community but a range of service disciplinary matters which constitute significant failings in the context of a disciplined armed force frequently serving overseas. While discipline is clearly fundamental to an effective military force, it must be tempered with a concern for individuals and their rights. Finding the balance between discipline and the rights of individuals is the key to achieving operational effectiveness and success.

The ADF has been praised for exemplary performance in operations. The military justice system, in providing the balance between discipline and individual rights, has underpinned the operational success of the ADF over recent years. An effective military justice system, as a core function of command, is necessary in addition to the civil code of justice.

I think that covers the points that I wish to take up as to Senator Bishop’s contribution. This is an important piece of legislation. It has been a long time coming. It was a pleasure—with you, Mr Acting Deputy President Hutchins, and other members of the Senate Foreign Affairs, Defence and Trade References Committee—to be part of the nurturing process of this particular piece of legislation. I know, Mr Acting Deputy President, that you took a particular interest in it. We heard some terrible stories, but in the scheme of things I think there was recognition by all of us involved in the inquiry that the ADF, for their part, did not approach it with the point of view of a lack of goodwill to finding a suitable solution and bringing the military justice system into the 21st century, which this legislation substantially does. A modern and professional ADF 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 will strike a balance. The most important thing is to strike a balance between the need to ensure effective discipline within the Australian Defence Force and the need to protect individuals and their rights. I commend the bill to the Senate.