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Thursday, 10 September 2009
Page: 6247


Senator MARK BISHOP (11:33 AM) —The two bills before us today, the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009, are quite urgent. I am sure the government appreciates the cooperation of the opposition in facilitating their speedy passage. The bills, as has been said by a number of speakers, are urgent simply because the High Court has found the Australian Military Court is constitutionally invalid. That is because, as we all know now, it is not established under chapter III of the Constitution but under the Defence Force Discipline Act. As a consequence, every action taken by the court since its inception is necessarily invalid. Those actions are to be revalidated by these bills, as made clear by both the EM and the various speakers to date.

I have spoken numerous times on this matter over the last five or six years, including on the adjournment earlier this week, to put some context into the debate, so today I will be very brief. The first bill re-establishes the previous court martial system for an interim period until a chapter III court can be legislated for. The second bill aims, necessarily of course, to maintain the continuity of military discipline in the meantime. The first bill reinstates courts martial and Defence Force magistrates. It establishes the positions of Chief Judge Advocate and the Registrar of Military Justice. It also includes the establishment of reviews and petitions in respect of summary trials and trials by magistrates and courts martial. It also re-establishes reviewing authorities.

The Judge Advocate-General effectively plays the role of the former Chief Military Judge. In this context, it has been very interesting to revisit the original report of the Senate Foreign Affairs, Defence and Trade Committee and go through its findings chapter by chapter. That original report, which is really the genesis of everything that has occurred since then, made serious findings as to the administrative systems, the disciplinary system and, more particularly, the investigatory services at the root of all the problems that latterly emerged in both the administrative and the disciplinary systems. There certainly have been significant reforms to date, on both the admin side and the disciplinary side, although it is fair to comment that the work to fix up ATFIS and the investigatory services is but a work in progress and best described as slow progress. Hence it has been necessary to recreate, as an interim measure and hopefully only for a short period of time, the old systems of courts martial and Defence Force magistrates, both of which had very adverse findings made against them in that Senate report in 2005. Whilst there are probably now different personnel and there have been behavioural and cultural changes with new organisational patterns put into place, I suspect that if there was any suggestion to go back to the old system, other than as an interim measure, it would be simply unacceptable to go down that path.

The bills make provision for the transition of appeals on foot, but other consequential amendments to other acts are also required. These are set out in part 2 of the bill and relate to the Defence Force Discipline Appeals Act, the Judges’ Pension Act and the Migration Act. Again, there is a change in the terminology with ‘court’ to ‘court martial’ or ‘military tribunal’. In other words, the first bill seeks to restore much of the previous judicial machinery in the invalid legislation, but within the authority of a military tribunal, not a court. We surmised that for many years but we have now been reminded that that is a fact.

The second bill seeks to deal with penalties under the new interim regime to make sure that they are consistent with the invalid scheme. This is important for the sake of continuity. Importantly, the second bill seeks to preserve the disciplinary measures formally imposed by the now invalid court. The explanatory memorandum on clause 5 states:

In respect of punishment purportedly imposed or order purportedly made, the clause declares the rights and liabilities of all persons to be, and always to have been, the same as if the amended DFDA had been in force and the punishment had been imposed by a general court martial ...

For those concerned at the law on this matter, I refer them to page 5 of the EM. And for those who might think that just as the court has been invalidated so too are its penalties, let me again quote the EM. It says:

... the rights and liabilities of all persons are ... the same as if the punishment or order of the AMC had been imposed or made by a properly constituted court martial and confirmed by command review.

It is likewise for dismissal.

No doubt this interim bill of stopgap measures will contain some uncertainties, but at least a gap in the military discipline scheme has been filled. In my view—and this has been made clear by opposition speakers and will be made clear by the minister in due course—there is no other option in the short term, but it is salutary to acknowledge that not all of the reforms will be wasted by this means.

Finally, it is appropriate at this stage, as we enter a new chapter in addressing the problems of military justice, to place on record—and in no particular order—the fine work that has been done by Senator Hutchins, former Senator Sandy Macdonald, Senator Marise Payne and Senator David Johnston in their former capacities and lives. They have over many years taken a continuing interest in matters associated with military justice. They have devoted many hours to this work and have participated in various inquiries concerning it. They have all made significant and sustained contributions to this issue over time, and it is worthwhile to place that on the record.