The purpose of the Military Justice (Interim Measures) Bill (No. 1) 2009 (the Bill) is to reinstate the Military Justice machinery which pre-existed the establishment of the Australian Military Court. The Bill amends the Defence Force Discipline Act 1982, the Defence Force Discipline Appeals Act 1955, the Defence Act 1903, the Migration Act 1958 and the Judges Pensions Act 1968 to reinstate the provisions in each Act which existed prior to the introduction of the Defence Legislation Amendment Act 2006 which established the Australian Military Court.

The previous military justice scheme which existed prior to 1 October 2007 is being reinstated as an interim measure following the High Court decision in Lane v Morrison which held the Australian Military Court to be invalid. The case involved a challenge to the constitutional validity of the Australian Military Court and the Director of Military Prosecutions. On the 26 August 2009, the High Court unanimously found that the provisions of the Defence Force Discipline Act 1982 establishing the Australian Military Court were invalid because the Australian Military Court was purporting to exercise the judicial power of the Commonwealth but did not meet the requirements of Chapter III of the Constitution.

The Australian Military Court was established in October 2007 by the former Government, following a series of Senate Committee reports recommending extensive changes to the system of military justice. Under the Australian Military Court, military judges presided over cases and operated outside the chain of command. However, the Australian Military Court stopped short of meeting Chapter III requirements such as those governing the appointment and tenure of judges. The Senate Committee recommended a Chapter III court with oversight by the Attorney-General, and greater independence from the military. The legislation establishing the Australian Military Court fell short of these recommendations.

As an interim measure, Defence is intending to broadly re-establish the service tribunal system that existed before the creation of the Australian Military Court by reinstating the Defence Force Discipline Act 1982 prior to the amendments in 2006. This will re-establish trials by Courts martial and Defence Force magistrates; reinstate the statutory position of Chief Judge Advocate, the Judge Advocate’s panel and the Registrar of Military Justice; reinstate the system of reviews and petitions in respect of both summary trials and trials by Courts martial or Defence Force magistrates; and reinstate the powers of reviewing authorities. The consequential amendments made in 2006 to the Defence Force Discipline Appeals Act 1955, the Defence Act 1903, the Migration Act 1958 and the Judges Pensions Act 1968 which make reference to the Australian Military Court will also be reversed.

Furthermore, the Bill will provide transitional provisions for all matters that have been referred on appeal to the Australian Military Court but were not concluded prior to 26 August 2009. The provisions will also address the AMC office holders, including among other things, provisions for their automatic transition to the relevant positions of Chief Judge Advocate, members of the Judge Advocates’ panel and Registrar of Military Justice.

The Government maintains its strong commitment to a military justice system that is impartial, a system that meets community expectations for transparency and independence, and one that at all times treats Australian Defence Force members fairly. In the interim, it is critical and urgent that the Australian Defence Force has a functioning military discipline system, particularly when it is engaged in operations overseas. After consideration of options, the Government will move to establish a Chapter III court as soon as possible. The temporary reinstatement of the military justice system which pre-existed the establishment of the Australian Military Court will not only address the hiatus in the disposition of higher level military discipline, it will also allow time for the establishment of a military court which meets the requirements of Chapter III of the Constitution including the introduction of appropriate legislation for this purpose.

I commend the Bill and the Explanatory Memorandum to the Senate.

On 26 August 2009, the High Court declared that the Australian Military Court, which had been established under the Defence Force Discipline Act 1982, was invalid. This decision had significant consequences for the administration of discipline in the Australian Defence Force. The main object of this Bill is to maintain the continuity of discipline in the Defence Force in light of the High Court’s decision.

The principal mechanism by which the Bill seeks to maintain the continuity of discipline within the ADF is by imposing disciplinary sanctions on persons corresponding to punishments imposed by the AMC and, to the extent necessary, summary authorities in the period between the AMC’s establishment and the declaration of invalidity by the High Court.

The Bill does not purport to validate any convictions or punishments imposed by the AMC. Nor does the Bill purport to convict any person of any offence. Rather, the Bill, by its own force, purports to impose disciplinary sanctions. The Bill does not purport to impose any liability in relation to imprisonment. Further, consistently with the exclusively disciplinary purpose of its provisions, the Bill is expressed to have effect for service purposes only.

The Bill recognises that there may be circumstances in which a person affected by a disciplinary liability imposed by the Bill wishes to contest whether that liability should remain imposed. The Bill gives affected persons a right to seek review of whether they should remain liable under the Act, and the reviewing authority is given power to discharge persons from such liability. In cases where the disciplinary liability imposed by the Bill relates to detention—a serious disciplinary measure peculiar to the ADF—the Bill requires automatic review by the reviewing authority to determine whether that disciplinary liability should be discharged.

I commend the Bill and the Explanatory Memorandum to the Senate.