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ATTORNEY-GENERAL

ROBERT McCLELLAND MP

JOINT PRESS CONFERENCE WITH MINISTER FOR DEFENCE, SENATOR JOHN FAULKNER AND CHIEF OF THE DEFENCE
FORCE, ANGUS HOUSTON.

PARLIAMENT HOUSE, CANBERRA

MONDAY, 24 MAY 2010

Subject: Military Court of Australia; Security at Duntroon; Passports; Afghanistan.

FAULKNER: Thanks very much for coming along ladies and gentlemen.

You might recall that last September I introduced legislation into the parliament to provide an
interim solution to address the High Court's decision in Lane v. Morrison, which found the
Australian Military Court to be unconstitutional. I said then that the Government was committed, as
a matter of priority, to developing a new model of military justice, enabling serious service
offences to be dealt with by a Court constituted under Chapter III of the Constitution.

I'm, therefore, very pleased to announce today, together with my colleague the Attorney-General,
that the Government has decided to establish a new Chapter III Court, the Military Court of
Australia.

The Court is designed to deal with serious service offences involving members of the Australian
Defence Force, in a fair and timely manner. This decision addresses comprehensively a long-standing
problem and delivers overdue reforms in the area of military justice.

You might recall that in 2005 the Senate Foreign Affairs, Defence and Trade References Committee
identified problems with our approach to military justice. The Committee said that the ADF's
disciplinary system was not striking the right balance between the needs of a functional defence
force, and service member's rights to the detriment of both.

It's critically important for the men and women of the ADF that they have access to an effective
military justice system. An efficient and fair military justice system is a key foundation for the
excellent service discipline that places the ADF amongst the world's best militaries.

By establishing the new Military Court of Australia, as a Court under Chapter III of Australia's
Constitution, we are putting in place strong safeguards to protect the court's independence and
protect the court's impartiality. The judicial officers of the new court cannot be permanent or
reserve members of the ADF. Guaranteeing the court's independence will avoid the pitfalls that led
to the downfall of the Australian Military Court established by the previous Government in 2007.

At the same time, however, it's important that this new court brings to its task not only
independence, but also a strong understanding of the special nature of military justice and the
environment of military decision-making. To this end, all judicial officers appointed to the new
court will need to have either experience in the military, or a familiarity with or understanding
of military discipline.

The new court will consist of separate upper and lower divisions, with judicial officers at the
level of Federal Court Judge and Federal Magistrate. In addition to handling serious service
offences, any Australian Defence Force member, who's charged with a service offence - even a lesser
offence -

may elect to have their matter heard in the Military Court of Australia. Less serious offences will
continue to be heard by summary authorities at the unit level.

The establishment of a new court contains a range of complex legal issues and our work has involved
a close consultation with the Solicitor-General. The court we're announcing here today accords with
his advice to ensure that the new Military Court of Australia will be constitutionally valid.

The Government intends to introduce legislation to establish the new court this year. I believe
that the Military Court of Australia will strike the right balance between ensuring that the ADF
has an efficient, disciplinary court that will contribute to its continued operational
effectiveness, while meeting expectations of justice and fairness for ADF members.

I'd also like to add that the Chief of the Defence Force, who is with us here today, is strongly
supportive of the new court that we're announcing. I'd like to take this opportunity to thank
Defence and the Attorney-General's Department, and the Government's legal advisors, for their hard
work over the past six months, in developing the new Australian Military Court. And I also want to
acknowledge the efforts of my colleague, Robert McClelland, in this regard too, who I am now very
happy to hand over to.

McCLELLAND: Thanks very much John.

As John said, the court will be a separate Chapter III Court that will provide equitable and
independent access to justice for Australia's serving men and women.

It will be a requirement that the judges have experience, or familiarity with military service,
there will be an independent, transparent and merit-based process involving consultation between
the Attorney-General and the Minister for Defence. Initially, it's envisaged that there will be
three judicial officers and it is further envisaged that there will be dual appointments as John
indicated, involving appointments from the Federal Court of Australia, and also from the Federal
Magistrates Court.

In that context, the Federal Magistrates Court will remain as a separately constituted court for
the purpose of undertaking general federal law jurisdictional matters. And as I've said, there will
be an arrangement whereby Federal Magistrates will be given dual commissions to the Military Court
of Australia.

In terms of the Federal Magistrates Court's family law jurisdiction, there has been concern voiced
that there has been duplication of resources between the Federal Magistrates Court and the Family
Court of Australia, in particular and most significantly in respect to parties' access to
counselling resources. There has also been some inefficiencies in the ability to transfer matters
between the the Federal Magistrates Court and the Family Court. And there have also been concerns
expressed, as recently as January of this year, with the Australian Institute of Family Studies
expressing concern about the disparity in approaches between the two courts giving rise to
potential unfairness.

On that basis, there will be a restructure in respect to the family law jurisdiction of the Federal
Magistrates Court. Federal Magistrates undertaking family law work will be offered commissions on
the Family Court of Australia. They will be offered a commission as a judge, but it will be to
preside in a lower tier of the Family Court. They will not be entitled to traditional judicial
superannuation arrangements. Their conditions will otherwise be preserved.

It's anticipated that the legislation will be introduced in the winter sessions of Parliament.
That, of course, will be dependent on the timetabling of the House and Senate programs, but we are
certainly keen to get that legislation on as soon as we can, with the new court structures to
operate in late 2011.

There will, of course, be consultation in terms of arrangements involving the courts, the military
and also with the Law Council of Australia.

In conclusion, can I say a lot of extremely sound and cooperative and very solid work has been
undertaken by representatives of the Attorney-General's Department, the Department of Defence and I
too would also like to join John in thanking the Solicitor-General and the Government's legal
advisors generally for the work they've done. Thank you.

FAULKNER: Ladies and gentlemen, we're happy to answer your questions.

JOURNALIST: Senator Faulkner, will the new Military Court be able to be deployed overseas?

FAULKNER: Yes, of course, deployment overseas is a critically important element for consideration
in terms of this particular court. I can say to you that I believe that the approach the Government
is taking will mean that this separate Military Court will be easily deployable overseas. It looks
and sounds, if you like, like a military court, not a civil court and deployability overseas is one
of the critical factors that the Government took into consideration when it came to its decision.

JOURNALIST: You say experience or familiarity with the defence and the military system is essential
for those who play a role in the new court. Would you please characterise for us how much exposure
to the military might constitute familiarity and, therefore, allow people to work with the court.
What would the minimum standard be?

McCLELLAND: There has been a number of judges identified in the Federal Court and the Federal
Magistrates Court, who have either served with the military, either as full-time members of the
military, or who have served as reservists. There have also been others who have been advocates in
respect to military matters. That will be a criteria which will actually be required in the
legislation. This is not unknown, there are other areas, for instance in the Family Law Act, where
experience is required. It is essentially to ensure that the court has credibility with the
military and, in turn, assists in preserving the morale of serving men and women.

JOURNALIST: But simple familiarity might be enough? It doesn't require previous membership of the
defence forces?

McCLELLAND: Well again, those who we have identified have had either full-time service, or service
by way of being members of the reserve. But it may well be that other judges or Federal Magistrates
have been involved in terms of representing the military, or on disciplinary boards and so forth.

JOURNALIST: Wasn't the Government threatening to abolish the Federal Magistrates Court?

McCLELLAND: Before this decision there was a proposal to dissolve the Federal Magistrates Court
with the general law function undertaken by the Federal Court and as I've described, the Family Law
function being undertaken by the Family Court.

With the need to appoint judges to the Military Court of Australia, and in particular we anticipate
that the bulk of work undertaken by the Military Court will be at the Federal Magistrates level, it
has been more practical to retain the Federal Magistrates Court as a separately functioning court.

There will be, of course, that additional work that the court will now undertake as part of the
role it will have in terms of providing those magistrates with dual commissions to the Federal
Military Court.

JOURNALIST: How much will the new court cost the new system and also will it be three judicial
officers fulltime working on this court? And will it be one judge, like two judges one magistrates,
one judge two magistrates?

McCLELLAND: Initially, it is envisaged it will be three judicial officers at Federal Magistrate's
level. The costings will be in the order of $4.5 million to $5 million a year for that structure.
But, again, it's also envisaged that there will be additional appointments including appointments
by way of dual commission from the Federal Court and also the Federal Magistrates Court.

JOURNALIST: Do you need to set up a new registry or anything like that for the infrastructure?

McCLELLAND: The Federal Court Registry will be taking over responsibility of the registry
functions, in consultation with the military, of the Military Court of Australia. The Federal Court
Registry will also be taking over the registry functions of the Federal Magistrates Court.

JOURNALIST: Minister Faulkner, can I ask you on another matter, what are your thoughts about the
prowler that has been targeting women while they're home alone at the RMC College at Duntroon? Do
you think there's enough security in place at that base?

FAULKNER: Well certainly, it's a very serious matter indeed. I can assure you that that matter is
being investigated thoroughly by the police. As you'd probably appreciate, incidents of this nature
are ACT policing matters. But I can say to you that these matters are being investigated with the
full cooperation of the Military Police, the AFP and Defence.

Obviously, I'm limited in what I can say in terms of the ongoing investigation which I am sure that
you would appreciate. I can, however, make some comments on the second part of your question in
relation to security measures. Defence has implemented additional security measures including extra
Serco guards, increased AFP vehicle and foot patrols in the area. I can assure you also that
Defence will continue to monitor this situation. We will always, of course, ensure that the
security measures that are in place are assessed and we also undertake in these sorts of
circumstances to ensure that all residents are kept informed of developments there.

It goes without saying that as Minister for Defence my attitude to this is the same as the
leadership in Defence and of course the leadership in the ADF. Our main concern must be, while this
is going on, the security and safety of our families, of ADF families, of the staff of ADFA and the
Royal Military College.

JOURNALIST: Attorney-General, what information specifically did the AFP investigation and ASIO's
Director-General glean from the Israel inquiry that allows the Government to now be quite confident
that Israel is behind the forged passport? What did they add to your information?

McCLELLAND: That's precisely the sort of question that I'm unable to provide an answer to obviously
in terms of operational matters. But, yes, I obviously can confirm that advice was provided to the
Government by ASIO and also the Australian Federal Police. In terms of the conclusions from that
advice I think it's best if I simply refer back to the Minister's statement to the House.

JOURNALIST: If you can't tell us, you personally are quite confident of the Government's position
that Israel was to blame for the forgery?

McCLELLAND: Well, again, there's a criminal process that is taking place in Dubai and out of
respect for that criminal process it would be inappropriate for me to say anything that could
prejudice the outcome of that criminal process.

JOURNALIST: Do you think there's any real possibility that expelling a diplomat will have any
effect on Israel and its practices for the past few decades?

McCLELLAND: It was a course of action not lightly taken. The Minister has indicated that. It's
clearly not unprecedented in terms of action taken by Australia or other countries. In terms of
representing the firm view of the Government and the sovereignty of our laws, our legal systems,
the efficacy of our passport system on behalf of the Australian people, the Government determined
that it was an appropriate step to take as well as, of course, the comments that have been made by
the Minister in the House.

JOURNALIST: Senator Faulkner, are you happy for us to have a chat with the CDF about its view on
the new military justice system?

FAULKNER: I am happy for you to do that and that's why I've asked CDF to join us so colleagues in
the press gallery will have an opportunity to ask them directly and CDF at the conclusion here will
also be happy to speak to you about it, of course.

JOURNALIST: CDF, tell us, what do you think of the new military justice system?

HOUSTON: Well, I'm very happy with this. What we have is a Chapter Three court which will hear
serious offences and I think it resolves the issue we've had since the High Court made their
determination last year. So, yes, I'm very happy with the arrangements. As the Minister said we've
worked very closely with the Attorney-General's Department. We've taken a lot of legal advice and
I'm very confident that it will be sufficiently robust to basically exist well into the future.

JOURNALIST: Even though some of its members may not have direct military experience? It may only be
an indirect experience in the military?

HOUSTON: I'm very happy with those arrangements. I mean, at the end of the day, I can tell you from
our experience in casting around for judges for the old system we had an awful lot of applications
for the positions on the old court, 50 or 60 applications, and all of those people had military
experience. Most of them were reservists but they did have military experience. So I'm very
confident that we will get suitable people applying for the job of judge on this new court.

FAULKNER: What has been announced, of course, is that on the basis of strong legal advice that
while none of these appointments will hold a current military commission as a condition of
appointment to the Military Court of Australia. As you heard from the Attorney, all judicial
officers will be required to have a familiarity with the military or have a military background.

JOURNALIST: Are you confident that this system is flexible enough so that it can be deployed
rapidly overseas and do you think that you'll need to ask permission of whatever country you send
this court to, to make sure that it's allowed to operate in that country?

HOUSTON: What we generally do before we deploy into a particular area is we negotiate a Status of
Forces arrangement and these sorts of matters are standard fare when we conduct those negotiations,
how our people will be treated if they do something wrong. So, yes, I'm very confident that this
court will be acceptable in circumstances of deployment.

FAULKNER: Can I say, look, I know you're interested in this matter because you asked me before and
it's a critically important matter. Of course, the new court will be able to try matters in
Australia and overseas as necessary. And this may necessitate judges of the new court travelling to
a range of overseas countries to try charges of serious offences.

It is possible, of course, that existing international arrangements and agreements that Australia
has in place with some host nations may preclude the immediate deployment of the new court. We
understand that that contingency might, at some unknown time in the future might arise. So for
these very rare instances a residual capability to convene a Court Marshal for deployment overseas
will be retained.

JOURNALIST: Could I ask an operational question? The insurgent attack on Kandahar over the weekend,
did that come anywhere near our people?

HOUSTON: All our people were safe. There was an indirect fire attack. There was also, I guess, an
attempt to breach the perimeter and whilst there were some Coalition people wounded, all our people
were safe and accounted for.