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Thursday, 16 May 2013
Page: 3590

Mrs PRENTICE (Ryan) (10:38): I rise to speak on the Military Justice (Interim Measures) Amendment Bill 2013. Today's bill will extend the interim regime established by the Military Justice (Interim Measures) Act (No. 1) 2009 following the High Court's invalidation of the original legislation establishing the Australian Military Court in Lane v Morrison in 2009. The Labor government previously announced details of the Military Court of Australia Bill 2012 as legislation to conclude the interim measures; however, as I understand it, the government has not yet adequately worked through the many unresolved legal issues in that bill. Therefore, the coalition supports these interim measures as drafted.

The interim regime provides for the appointment and remuneration of the Chief Judge Advocate and other statutory office holders on a fixed tenure of four years, which will expire in September 2013. The purpose of today's bill is to extend their tenure for an additional two years or such lesser period as the Minister for Defence specifies by legislative instrument.

From my many engagements with the ADF I know that all Australian Defence Force members take their roles and the responsibility that comes with being in the ADF very seriously and act accordingly. It is true, however, that we have a criminal law system set up with courts to deal with transgressions against the law, and in the same way we have encoded in the Defence Force Discipline Act 1982 the transgressions against the law by servicemen and servicewomen which, in their conduct through the ADF, are not civilian in nature and should be dealt with by a specific military court, not just a federal magistrate. The concept of the Military Court of Australia is therefore a recognition that the role of Australia's military justice system is to support command in reinforcing discipline and enhancing operational effectiveness. In terms of serious service offences, it takes the adjudicatory role function away from the ADF chain of command, which I will touch on later, and may comprise judicial officers who have a genuine understanding of the nature of service in the ADF by reason of their experience or training.

The establishment of an independent military court is not a new issue. The Senate Foreign Affairs, Defence and Trade References Committee conducted an inquiry into the effectiveness of the military justice system, and in that report it recommended that the Australian Military Court be established for serious service offences committed by ADF personnel. At the time, the committee recognised reforms that had been undertaken in other countries, including the United States of America, Canada and the United Kingdom. It recognised that there is a lack of impartiality in courts martial and that there is a growing international trend towards independent military judicial officials in recognition of the fact that allowing service personnel access to independent and impartial tribunals makes for a more effective military justice system.

The Howard government implemented 32 of the 40 recommendations and established the Australian Military Court on 1 October 2007. However, in August 2009, as a result of the Lane v Morrison case, the High Court of Australia unanimously found that the provisions of the Defence Force Discipline Act 1982 and provisions which created the Military Court were constitutionally invalid, as Commonwealth judicial power could only be exercised under chapter III of the Constitution. The Australian Military Court was therefore suspended, and a bipartisan approach was taken with the Attorney-General and the Minister for Defence to return serious service offences to the old approach—namely, the system of courts martial and Defence Force magistrate trials. During that process, given that all convictions recorded by the AMC between October 2007 and 26 August 2009 were consequentially invalid, legislation was passed to give effect to many of the punishments and orders made by the AMC, and punishment was reviewed for those convicted under the AMC practice. It has taken significant time to fully consider legislation that is in concordance with the use of Commonwealth judicial power under chapter III. The issue was sidelined, unfortunately, when the bill presented in June 2010 lapsed when parliament was dissolved on 19 July 2010, when the federal election was called.

I would like to take this opportunity to comment on those lingering legal issues around the establishment of the Military Court of Australia. In the submissions that have been made over the years about this issue, there are two main concerns about the structure and function of the court. First, the Military Court of Australia, by design, will not feature a jury process, normally afforded to all Australian citizens in section 80 of the Constitution, which states:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

In particular, the Returned and Services League, or RSL, is concerned that a court with only one military judge acting alone would be in contravention of the rights normally afforded to all Australian citizens, and that includes our servicemen and servicewomen. The original explanatory memorandum to the Military Court of Australia Bill 2012 claimed that a Military Court of Australia would be 'compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011' by engaging the following rights: the right to a fair trial, which means 'a fair and public hearing by a competent, independent and impartial tribunal'; freedom from arbitrary detention; the right to humane treatment in detention; and the right to privacy.

In terms of establishing a competent, independent and impartial tribunal, the court was to be set up such that people serving presently in the ADF would not be eligible to be a judge or federal magistrate under the court, and furthermore that the Military Court would be independent from the military chain of command. Importantly, in line with the practices of the Federal Court of Australia, the court would involve procedures for making appeals from the Appellate and Superior Division of the Military Court for decisions in the General Division of the MCA. Of course, following that process, appeals can be made to the High Court of Australia.

There would be offences contained in schedule 1 which delimit the types of classes and the circumstances under which someone alleged to have committed an act is to be tried. Those are class 1 offences, including offences relating to operations against an enemy and desertion, as well as offences including murder, manslaughter and serious sexual offences, which must be heard and determined by the Appellate and Superior Division of the Military Court of Australia. This is in line with serious criminal offences at the civilian level, which are heard by judges of a superior court—that is, the Supreme Court, rather than a magistrate's court. Other offences, as the explanatory memorandum notes, relate to service offences that go to the very core of maintaining discipline and morale in the ADF: abandoning or surrendering a post, harbouring enemies, failing to carry out orders, mutiny, desertion and dangerous conduct.

I note that the Senate Foreign Affairs, Defence and Trade Committee in 2012 advised that it would not conduct a parallel inquiry into this issue given that the Senate Legal and Constitutional Affairs Committee was also investigating the issue. I note that its report was published on 9 October 2012. During that process the coalition continued its deliberations and issued a dissenting report. The Liberal senators made three recommendations based on their concerns. They ultimately decided that all members of the ADF are entitled to the same rights and protections that other Australians receive in a chapter 3 court, and therefore recommended that the bill be amended to include the right to trial by jury for all offences which would customarily be listed on indictment in the civilian context. Therefore, the right to trial by jury should be afforded for service offences with a punishment of more than 12 months imprisonment.

Secondly, they acknowledged the concerns of groups like the Australian Defence Association that permanent or active reservists would be ineligible for appointment to the Military Court, and as such recommended that, to the extent that chapter 3 of the Constitution would allow for permanent reservists and standby reservists to be appointed as judicial officers of the Military Court, as a consequence the available pool would be expanded to include people who have an understanding of military service and as such can make a meaningful contribution to the Military Court itself. I strongly agree that it is all very well for judicial officers to have an understanding of military service, but real experience of service and of battle provide an insight into the challenges of military decision making that a mere 'suitable understanding' cannot possibly achieve. The coalition senators noted that an important consequence of this recommendation would be to increase confidence in the court from both within the ADF and in the general public.

I noted in my maiden speech my appreciation for the sacrifices that our troops make around the world. I also highlighted the fundamental importance of clear rules of engagement prior to entering any conflict. I said at the time:

… if this nation fails to cloak our soldiers with the full protection of the law when they go into battle, we fail them all. The rules of engagement must be crystal clear and our support strong. If we put Australian troops into the heat of battle and expect them to take enormous risks on our behalf, we cannot expect them to be split-second lawyers as well.

The ongoing consideration of the Military Court of Australia is an important part of that process of supporting and protecting our troops which, I have noted, is integral to the morale and wellbeing of ADF personnel. The coalition will continue to work in a bipartisan manner to ensure that all issues are resolved appropriately.

More generally, and ultimately, it is up to the federal government to support its troops. This Labor government has cut more than $25 billion from Defence, which has crippled the Defence industry sector. In the last three years the industry has lost more than 5,000 jobs and will continue to shed jobs in light of this government's mismanagement of Defence. In 2009 the then Minister for Defence, Senator John Faulkner, predicted that the local workforce would be as high as 34,000 by 2013. Today, however, that figure stands between 24,000 and 25,000 local jobs according to the Defence Materiel Organisation. Clearly, the Labor government's savage cuts to Defence are translating into a struggling Australian industry.

This is unacceptable for what is a vital strategic sector of our economy. We should be supporting the growth of a home-grown Defence industry, not continuing to pull the rug out from underneath it. The Defence community has, since 2007, being represented by a Labor government that does not listen or support it, nor even action its own 2009 Defence white paper. More recently, the Minister for Defence released the 2013 Defence white paper, which was full of impressive photo opportunities but had no plan, no schedule and no money. In a document that talks boldly of new ships, new submarines and new aircraft there is no dollar figure listed for their construction.

At the next election Australians have a choice between the Labor Party, which offers empty rhetoric on defence issues and has no intention of even paying lip service to restoring more than $25 billion of cuts, and a new government with a proven track record, a coalition government that will restore hope, reward and opportunity for our defence forces.