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Thursday, 31 October 1996
Page: 4880


Senator MARGETTS(1.01 p.m.) —The Defence Legislation Amendment Bill (No. 1) 1996 amends the Defence Force Discipline Act 1982 and the Defence Force (Home Loans Assistance) Act 1990. The Defence Force Discipline Act 1982 is to be amended to close a loophole which stops ADF members serving overseas from being prosecuted for offences such as sexual assault and other serious offences. Of course, the Greens would support this, because it is important for many reasons, including Australia's good standing, for this to be able to be clear in any case of such alleged incidents occurring.

The bill also amends the Defence Force (Home Loans Assistance) Act 1990 to increase the maximum amount of a subsidised loan to $80,000 for each member of the forces, and to reduce the period for eligibility from six years to five years. This has been mentioned already by Senator Faulkner. This is another incentive to try to keep people in the ADF and give them nicer conditions. The Greens would support this as well. The bill, in itself, is not controversial. However, we would be seeking to amend it at the second reading stage to get the Australian government to review the status of forces agreement between the US and Australia with regard to codes of conduct and procedures for sexual assault and harassment incidents.

There seem to be three legislative mechanisms covering sexual assault by defence forces. The ADF are governed by the Defence Force Discipline Act for offences, including sexual offences, here and overseas; and the United States military forces are covered by the US uniform code of military justice legislation, which includes punishment for crimes such as rape and assault. With regard to transferability between the two, in 1967 both the United States and the ADF drew up the SOFA—the status of forces agreement—which is a bilateral agreement meant to subject the forces to a clear legal framework for crimes committed and procedures for claims for compensation or damages.

There is a need for a comprehensive legal framework and for prevention strategies to bring justice to women who suffer from assault and harassment by visiting overseas personnel. I suppose, in that case, that it could be for men as well. According to the Women's International League for Peace and Freedom, in our region United States military personnel have chalked up an unenviable record in Okinawa, where the abduction and rape of a 12-year-old was most recently in the headlines.

But that is only one of at least 4,700 known crimes and incidents committed by US personnel in Okinawa, including the rape and murder of women.It is also not possible to rule these acts of violence out during training in Australia. We have had a spate of cases of sexual assault in Western Australia which were confirmed by the Western Australian Sexual Assault Referral Centre. This resulted in a visit by senior US military personnel to investigate three sexual assault complaints in July 1994.

The legal situation may seem fine and dandy to the forces, but it does not go far enough. Many assaults and rapes that are committed in Western Australia while US forces visit do not get to the prosecution stage. The women complain, but are too threatened by military processes to take the complaint further. The true legal situation has also been questioned in that the military are meant to come under Western Australian laws, but apparently the military have some scope to refer the matter back to military courts where the matter is dealt with internally. And apparently, once the person is back on board, the US military refuse to hand the person over and say that the matter will be dealt with internally. Therefore, the punishments are not transparent or accountable, and there are reported incidents where personnel are docked pay or recreation leave or are delayed promotion for serious offences.

To circumvent this situation, agencies such as the Sexual Assault Referral Centre in Western Australia have decided to work with the United States military, through the consulate, to develop education and prevention strategies for personnel while they are in Western Australia on visits, recreation leave, and so on. At the moment, this kind of work is irregular because it is based on the will of the particular agencies to do the work. What has been achieved in Western Australia by way of video presentations, talks, leafleting and procedures for passing on complaints of sexual harassments or assaults to senior military personnel has apparently been very successful. Therefore, there needs to be some kind of encouragement of this as a framework to be implemented across all states.

What has been suggested by some non-government organisations and women's organisations is, first, a review of the SOFA agreement to bring it up to date with the changing conditions; second, an enforceable code of conduct for personnel visiting Australia to prevent misconduct; and, third, continuing programs for dialogue and cooperation between state and federal agencies and US military representatives for education and prevention strategies for US military personnel. That explains the rationale and purpose of my second reading amendment.

Before I move my amendment, I would be keen to hear if there is a response from the ALP because the shadow minister, Mr Bevis, indicated in discussion that he might not be prepared to support a second reading amendment. We went through various stages where what was said was, `It's not usual' or `It's not the right place.' But as I have explained, this bill is exactly about that, and about clarifying the situation—


Senator Faulkner —I will speak on your amendment after you move it.


Senator MARGETTS —That is fine. This is exactly the right kind of bill on which to move it, because we are doing the right thing in clarifying the situation of Australian personnel overseas so it is exactly the right place to move an amendment to clarify the situation for visiting US personnel in Australia. The commitment by the shadow minister—and I hope it will also be given serious consideration by the government—is to consider the amendment I am moving, but to consider it at a later date by way of a motion.

So if it is not supportable simply because it is in the bill and because members of the House of Representatives are not as used to amendments of this type in a second reading as the Senate is because, for various reasons, the Senate has a different make-up, I am very keen to continue with the debate and move my amendment at a later date in a motion if it does not get support today. I would still love to see it get support today. The world as we know it will not fall apart if what we are doing is carried out.

One of the other comments by Mr Bevis was this. The amendment said, `The Senate resolves that there be laid on the table, by the first day of sitting in 1997, a report.' He said, `You haven't mentioned who the report should be done by.' But I am advised that, under the Acts Interpretation Act, when it is not mentioned who is to produce the report there is an automatic assumption that it is the minister who is responsible for the ministry which administers the act. So the automatic assumption in the amendment is that we are asking for the minister representing the Minister for Defence to present that report to the Senate.

The second reading amendment is asking for an input into the adequacy of the agreement and of current procedures to give an indication of the incidence of alleged sexual assault and of the incidence of sexual assaults that have resulted in award of damages. It is asking for an enforceable code of conduct to implement and improve existing measures. It is asking that the review consider submissions from the public and allow public comment. It does not say that this is what shall be done, that this procedure shall be changed; it is simply asking that a well overdue review take place.

We are talking about a review that to my knowledge has not been conducted for over 30 years, since the 1960s. Things have changed over 30 years. The amendment was commended to me by the Women's International League for Peace and Freedom. I received a phone call from the Armed Services Association. They were dealing with this bill and I assumed that they were saying, `Look, what are you doing moving amendments. We like this bill.' But no. They rang and I asked them about the bill, and they said that, in fact, they were the people who recommended that the Women's International League for Peace and Freedom should come to the Greens because they assumed that we would be able to give them assistance and put this amendment through in the bill. They thought that it was a reasonable amendment and that it was something that really must be dealt with, if not in this bill now, at some time in the future.

I do think that it needs proper consideration. I would like it to be taken seriously and, if necessary, debated with the relevant committees, if that is necessary to have a reasonable debate. I do not think that the world will end if there is a review of these procedures. I move:

At the end of the motion, add:

   "but the Senate resolves that there be laid on the table by the first sitting day in 1997 a report of a review into:

   (a)   the adequacy of the Status of Forces Agreement between the United States of America (US) and Australia, and the US Uniform Code of Military Justice in prosecuting cases of:

      (i)   alleged criminal offences committed by US defence force personnel in Australia, including sexual assault;

      (ii)   alleged sexual harassment committed by US defence force personnel in Australia;

   (b)   the adequacy of current procedures for handling complaints and damages claims for cases of alleged sexual assault and sexual harassment by US defence personnel in Australia, and measures to improve those procedures by the involvement of civil law enforcement agencies;

   (c)   instances of alleged sexual assault, sexual harassment and other serious offences by overseas defence force personnel in Australia:

      (i)   which have not been prosecuted in Australia, and the reasons for non-prosecution; and

      (ii)   which have been prosecuted in other jurisdictions, resulting in a lesser penalty than would have applied in the relevant Australian jurisdiction, and the reasons for non-prosecution in Australia;

   (d)   instances of sexual assault, sexual harassment or other serious offences by overseas defence force personnel in Australia which have not resulted in the award of damages to the victim;

   (e)   the need for an enforceable code of conduct for overseas defence force personnel in Australia;

   (f)   measures to implement, or improve existing, education and prevention strategies and cooperation between military representatives and service providers assisting people who have been the victims of alleged offences;

and that the review consider submissions from the public and provide opportunity for public comment".


Senator MacGIBBON —(1.12 p.m.)—The government will not be supporting the amendment moved by the Greens on this bill. I really do not know why Senator Margetts is so obsessed about American service personnel raping, looting and burning their way across the Australian countryside. I am not aware that the incidence of criminal activities by American service personnel is any higher than it is for Australian personnel and, off the top of my head, I would think that in both armed forces the incidence of criminal activities is at a considerably lower level, by virtue of their training and their discipline, than it is in the civilian community.

I accept that there are breaches of law from time to time by service personnel, because the human race is not infallible and it is not perfect. But we have seen in recent decades a very high standard of discipline and conduct by uniformed personnel when they are on leave and when they are visiting. I think that it is getting it quite out of perspective to equate what might happen in Australia with what might have gone on—and we have no way of checking those figures—in Okinawa, or anywhere else. With the greatest of respect, those matters are quite irrelevant to the bill.

My mind goes back to Senator Margetts's predecessor, Senator Vallentine. For months we were besieged with stories about how the incidence of venereal disease was far higher in Perth and Fremantle as a consequence of the American carrier battle groups coming to Western Australia. Ultimately, when the figures were released by the Public Health Department of the Western Australian government, it was found that since the visits had started, there had actually been a decline. So I think that you have got to get some statistical basis for these concerns, senator.

Put succinctly, the bill remedies some of the problems in the Defence Force Discipline Act, and makes attractive changes in relation to the defence home ownership scheme. The amending bill serves to correct a reference in the Defence Force Discipline Act of 1982 to offences against the New South Wales criminal law, to bring the legislation into line with 1992 changes in status of the ACT criminal law.

As it has not been explained in any other terms, I assume this amendment is a tidying up exercise, because items 1 to 4 of schedule 1 of this bill make the amendments required. Essentially, the existing section 61 of the Defence Force Discipline Act makes it an offence for a Defence Force member or a defence civilian to do any activity that would constitute an offence against the criminal law of the Jervis Bay territory. There is also a section which ensures that Defence Force members can be prosecuted under the Defence Force Discipline Act for offences committed overseas whilst on deployment or on exercises. Section 61 relates to offences in the Jervis Bay territory. These offences are defined by referring to the New South Wales Crimes Act of 1900. The Jervis Bay Territory Acceptance Act 1915 makes the laws which are enforced in the ACT apply to the Jervis Bay territory. Prior to 1992, the New South Wales Crimes Act 1900 was in force in the ACT and, therefore, in the Jervis Bay territory. Since 1992 the ACT Crimes Act has applied, and the Defence Force Discipline Act was not amended to reflect that change in status to the ACT law.

In making this change, the bill also seeks to retrospectively validate any section 61 prosecutions, if any exist, by providing that the amendments should be taken to have commenced on 22 May 1992, the date the appropriate ACT legislation commenced. I wonder whether the minister, in summing up, would be able to advise the Senate if she has access to data on whether any section 61 prosecutions will be validated by this retrospective change.

The bill also amends the Defence Force (Home Loans Assistance) Act 1990 to extend eligibility, through a change in eligibility criteria, to members previously unable to apply for a subsidised loan. Items 5 to 13 of schedule 1 reduce the period of service required to become eligible for the home loan from six years to five years for either full-time or composite service. Further, the definition of eligibility is extended to include members of the reserve forces or emergency forces who complete the requisite training period and are not otherwise covered by the Defence Service Homes Act 1918. Changes made under items 24 to 43 of schedule 1 include increasing the amount of the loan from $40,000 to $80,000 and increasing the maximum amount of loan available to a couple of joint eligibility from $80,000 to $160,000.

In making these changes, the government is both fulfilling an election commitment and recognising the dedicated service given by defence personnel, and the unique nature of that service. It is also moving to change the existing system in an endeavour to assist in the process of retaining in the Defence Force the services of the very fine group of Australians who presently serve. The previous system was taken up by less than 2,000 people, so it was not a very great success. This scheme should prove much more attractive.

It is a fact that, thanks to the Labor government, there has been a significant slump in morale in the Australian Defence Force, with concomitant high resignation rates. When you have got annual reductions in budgets, reductions in training and exercise time and, above all, continual reductions in staff numbers, reducing the strengths of establishment, then—whatever you might call those reductions in numbers by glorifying them with titles such as `management initiated voluntary redundancies' or `retirements'—such reductions have an absolutely devastating effect on people's morale and on their career hopes and ambitions.

We have seen, for many years now, annual reductions in the defence budget, and it really has had a most corrosive effect on morale in the ADF. One of the good things about this government is that it has held the line on budget allocations and has given a commitment to do that for the life of this parliament. That stand—coupled with measures such as the home loan scheme amendment—will, we hope, mean that there will be a turnaround in defence staff morale.

Over the years, I have expressed here a concern regarding the apparent failure of the Australian Defence Force to imbue its structure with a culture of responsibility and accountability. On too many occasions in the past decade or so, military inquiries have been followed by boards of inquiry, and by further inquiries, until the statutory period under the Defence Force Discipline Act has passed—a period which, as the Senate will remember, is only three years—and then nothing can be done about the breach of discipline. Unfortunately, this is a pattern that has become very familiar in recent years.

Senators will remember that, earlier this year, the Senate committee of inquiry into the Nomad crash reported before we rose for the winter recess. That Senate committee made the recommendation that the period be increased from three years to five years, so that intentional or unavoidable extensions of time in the course of inquiries did not preclude action being taken under the Defence Force Discipline Act.

I would hope that the government is looking seriously at this matter because it is as real today as it was when the Senate report came down. Having said that, I am not for one moment suggesting that there is a problem across the Defence Force where unlawful or unacceptable actions can be performed with impunity—far from it. I am saying that when actions of a major nature occur, which have unintended consequences, seldom is anyone brought to account for them.

I have always maintained that the ADF is a unique organisation, but that uniqueness does not justify there being a lower standard of accountability or responsibility in its operations. In fact, I would argue the contrary—that, considering the nature of service in the ADF, and the objectives and the commitment of the force to what it has to do, there is a need for higher standards of accountability than in the civilian role. With those words, I wish the bill a speedy passage.