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Thursday, 10 September 2009
Page: 6243


Senator JOHNSTON (11:08 AM) —I rise to speak on the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009. The first thing that I would like to do is thank the minister for the expeditious way he has dealt with a very unfortunate and not entirely unforeseen event—the High Court striking down, in the case of Lane v Morrison, the hybrid military justice court that was established in 2007. The minister has been confronted with a very significant problem, given that people have been prosecuted and are suffering detention and that some people have left the service because of charges pursued in the court. The High Court finding the court to be unconstitutional has created, for the Minister for Defence, a very significant difficulty, one which the opposition is very keen to assist him in resolving.

I would like to revisit a little bit of the history here, because the parliament has been very, very clear, I believe. The parliament has sought to set out a path for the Australian Defence Force on this vital subject and has, to some degree, been ignored—not to a great degree but to a degree—and here we are today with the premier judicial court of the ADF having been struck down by the High Court.

We have, in the last decade, observed substantial changes in the administration of military justice in comparable jurisdictions around the world, particularly the United States, the United Kingdom and Canada. Australia has been conspicuous—or had been conspicuous, I should say—in not following the trend. There were very, very serious problems in Australia with respect to military justice. Indeed, many senators know this, having sat through a number of hearings and inquiries over the last seven years since I became a senator. We have seen: in 2002 and 2003, the State Coroner of Western Australia’s investigation into the Westralia fire; the 2001 Burchett inquiry into military justice in the Australian Defence Force; the 2001 Joint Standing Committee on Foreign Affairs, Defence and Trade ‘rough justice’ inquiry; the 1999 Joint Standing Committee on Foreign Affairs Defence and Trade military justice procedures in the ADF inquiry; the 1998 Commonwealth Ombudsman own motion investigation into how the ADF responds to allegations of serious incidents and offences; and the 1997 Abadee study into the judicial system and the Defence Force Discipline Act. They are the principal points of reference in what has been, I think, a very troubled and troubling history of military justice in the Australian Defence Force.

I remember the plight of an SAS soldier who was accused of war crimes. As a last resort and through his own strengths—and, I dare say, experiences—he came before the Senate committee and gave in-camera evidence as to what happened to him, and senators received a very wide-eyed understanding of what perils confront a person who gets on the wrong side of a process that is not equitable or just. We saw the parents and families of suicide victims inside the ADF. We saw the parents and families of those who had been victimised. We saw people who had been the subject of sexual harassment. And so it went on—a very sorry blot on what is an otherwise outstanding Defence Force.

The then Senate Foreign Affairs, Defence and Trade References Committee set about the task of trying to improve the situation. Indeed, in 2005, we set out a number of recommendations, including calling for an independent director of military prosecutions. We made 40 recommendations, and I want to talk about what some of those recommendations were. Recommendation 18 stated:

The committee recommends the Government amend the DFDA to create a Permanent Military Court capable of trying offences under the DFDA currently tried at the Court Martial or Defence Force Magistrate Level.

This was the next recommendation, 19:

The Permanent Military Court to be created in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality.

  • Judges should be appointed by the Governor-General in Council;
  • Judges should have tenure until retirement age.

So the parliament, including now-opposition senators, took a big, leading role through that committee, trying to chart a proper course so that we too could have someone like—if I can put it in common parlance—Major Mori, who stood up for David Hicks without fear or favour for his own career, because his Judge Advocate General’s Corps was completely separate from the military chain of command in the Marine Corps. Now, we cannot have a Major Mori in Australia, because what this hybrid court sought to do was stay within the chain of command.

A number of senators said to the department, and the government did the department’s bidding, ‘This will not work.’ We put them on notice that this was problematic. You cannot have judicial powers unless you adopt them pursuant to the Australian Constitution. But no; as is common, the Defence Force knew better! So here we are, with the Minister for Defence put in a most invidious position—I have the utmost sympathy for him and again I congratulate him on the way he has shouldered this burden that has been cast upon him—with the mess this has created for people, with penalties that have been dealt out illegally, unconstitutionally.

So it comes to this legislation. Now, the legislation is not perfect, and my good friend and colleague Senator Brandis will take up the cudgels to point to where there is cause for concern. Suffice it to say, this is the best that we could do as a transition. I give the minister my undertaking to assist him in whatever way I and we in the opposition can—and those members of the committee who are still very interested in this area—to assist in formulating a chapter III court that works properly, that is independent, so that we do not revisit this mess.

There are a number of concerns and issues with the method of resolution, none of which we can do much about. We simply offer words of caution. I will say what I am sure my friend and colleague Senator Brandis will say: detention is an area of great concern, as to whether we can substantially adopt what has gone before without acting judicially. So there are very technical issues here, but we want to be seen assisting, certainly not standing on the hose. In closing, the lesson to be learned is that the parliament was ignored and so here we are today.