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Defence Legislation Amendment Bill 2007

CHAIR (Senator Payne) —I declare open this meeting of the Senate Standing Committee on Foreign Affairs, Defence and Trade, which is inquiring into the provisions of the Defence Legislation Amendment Bill 2007. These are public proceedings, although the committee may agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken. The committee will then determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time.

I welcome our first witness. The committee has before it a submission from the Law Council of Australia, which we have numbered eight. That is now a public document. Do you need to make any amendments or alterations to that submission?

Mr Willee —I think we do. I did indicate to the committee secretary yesterday that, in the second sentence of the second paragraph of the submission, there is a reference to the comments being applicable to the bill relating to appeals from summary conviction. It is not limited to summary conviction. ‘Summary convictions’ was not really what it was about; it was about the matters it goes on to deal with. It would be appreciated if there could be a deletion from summary convictions.

CHAIR —On the second paragraph on the first page?

Mr Willee —Yes, the second sentence I think it is.

CHAIR —Is there anything else?

Mr Willee —The only other thing is that in paragraph 2, in the copy of the submission that appears on the website, there is a comment which we should have removed before it was sent to you. That comment is one that was made by me.

CHAIR —I understand it has been removed.

Mr Willee —Then I do not have to worry about it. Thank you very much.

CHAIR —Is there anything further in relation to the submission?

Mr Willee —No, there is nothing further in relation to the submission that I would wish to change. I would indicate to you that the submission was made at very short notice and without a proper opportunity to review the proposed amendments in DLAB7. Having had a little more time since then, whilst I cannot do so in the capacity as the chair of the LCA’s working group, I would like to address some comments about another aspect of the bill which concerns me, and that is the one that deals with the evidentiary process.

CHAIR —I now invite you to make an opening statement concerning the Law Council’s submission and those points that you have just raised, and we will go to questions after that.

Mr Willee —An opening statement in relation to the submission that we have just referred to is really unnecessary, having regard to the fact that the totality of the material is contained in the submission itself, which is very short and on a very narrow issue. However, for the sake of the record, perhaps I should say that it is directed to a problem which is often caused, particularly for the prosecution but equally for the defence. When a ruling is made which in itself will be so fundamental to the way in which the proceedings will or will not go on, there ought to be a provision similar to the provision that we have extracted from the New South Wales act. That provision ought to enable those issues to be dealt with in appropriate cases to prevent unfairness, a miscarriage of justice and, perhaps equally important, a colossal waste of time by people trying to go through the same process using the prerogative writs.

It is a simple thing to do. We do not say that the model that we have used as an illustration is the only model. It is one that has stood the test of time in New South Wales and has been the subject of litigation—so people understand what it does. But it will not have escaped your notice that it is a model which seems to favour the prosecution rather than the defence. That does not have to be so, but there are good policy reasons for it having been cast in that form. They usually relate to the fact that very often what is the subject of a challenge is the fundamental question of whether the prosecution can ever get off the ground with its case because some vital piece of evidence—usually the record of interview—is ruled against by the presiding finder of fact and the prosecution has no remedy for that.

True it is that the provisions of this bill provide for an appeal in those circumstances after the event, but very often the very event that gives rise to the matter is the one that requires the remedy and is important enough to require action straightaway. In the case of the defence, a huge cost and expense—which usually the defendant does not have to throw away—is occasioned by waiting until after the appeal or having to deal with it because the prosecution brings the matter after the appeal when the defence is not necessarily terribly interested and may not really provide a proper basis for testing what the prosecution is putting in those circumstances when their situation may not be affected by the result. There just does not seem to be any real advantage, other than non-interference with the criminal trial process—which is always a matter of great concern—in leaving it until afterwards. In our view, it would be much better that it happen at the time if it is important enough, and that can be determined in circumstances where it is only done by leave.

I do not believe I need to say anything more by way of opening in relation to that process. There is another matter that I have discovered since the submission went in—and, therefore, these are observations of mine because I do not have the authority of the Law Council to make them. I am very concerned with the provisions of proposed section 146A, which is headed ‘Evidence in proceedings before a summary authority’. My opening statement might as well be my full submission, because you have had nothing to date and those seated behind me, who all seem to have accepted this process, have had no opportunity to address anything to the contrary. Proposed section 146A effectively provides that:

(1)  In proceedings before a summary authority ... the summary authority:

(a)  must comply with the Summary Authority Rules; and

(b)  consistently with those Rules:

(i)      must act with as little legal formality or legal technicality as possible, while ensuring fairness; and

(ii)     is, subject to this Act, not bound by the rules of evidence, whether statutory or common law; and

(iii)    may admit any documents or call any witnesses that the summary authority considers to be of assistance and relevance; and

(iv)   may give such weight as the summary authority considers appropriate to any evidence admitted under subparagraph (iii), having regard to the importance of the evidence in the proceedings and its probative value.

In my opinion, this would take us back to the time when we first started to do something about the imperial acts and make sure that there are proper rules for dealing with summary matters—the importance of which cannot simply be downgraded, and never were up until this time, as being something that does not matter. If it is worth doing, it is worth doing well and it is worth doing properly.

The problem, then, apart from consistent command interference—which has been dealt with fairly well by this bill—was of course the caprice and ignorance with which summary authorities treated those brought before them. It was encapsulated in the phrase, which you will excuse me using: ‘Wheel the guilty bastard in.’ It is one that caused a pervasive feeling right through the service that any summary proceeding was predetermined, and that particular pervasive feeling was not misplaced. That is inevitably what happened in many, many cases, but it made it extremely difficult for those who tried to follow the rule of law—however lacking in legal training they were—to provide a reversal of that feeling and to convince people that they were being dealt with appropriately.

That is why nearly 30 years ago steps were taken to provide a system which did away with that and to make sure that there were provisions for the use of rules of evidence in a proper way and instruction, particularly of commanding officers, to a limited extent as to what was required in that regard. The other provision put in place was a provision that was then called a ‘command legal officer’.

Senator MARK BISHOP —I am sorry to interrupt; what was the first thing put in place 30 years ago to address that mischief?

Mr Willee —The indication to commanding officers that they were required to follow the rules of evidence. What was put in place, apart from a limited instruction of them for that purpose, was the provision of what was then known as a ‘command legal officer’, who could stand by while they were doing summary matters and make sure that, if there were obvious breaches of the rules of evidence, they could be drawn immediately to the attention of the presiding finder of fact.

That process went on unimpeded, as far as I know, until the introduction of this bill. Those who have embraced the current proposal to effectively do away with it do so, as I understand it, on the basis that there are review provisions and appeal provisions which make it unnecessary. That view is fundamentally flawed. Firstly, why would we introduce into a system, which we are trying to make as perfect as possible, something which is intrinsically requiring review and appeal? Secondly, it is flawed because the penalties, which are still extant, are very much serious enough to warrant compliance with those evidentiary rules. They include incarceration of a sort. Even if they were the lowliest penalties, it has to be remembered that the morale of the service dependent on a disciplinary process is only to be enhanced by the following of the appropriate rules as is done in most, if not all, civilian disciplinary processes of this sort. There is a greater need for it in a disciplinary service.

Those soldiers, sailors and airmen who do not see being a member of the forces as just another job can often be cut to the quick by the mere fact that they might be charged. It is extremely important to them and, even though we have in this bill now downgraded summary convictions to a situation which will not affect them in civilian life, if you want to be a career serviceman you want your record completely unbesmirched. It is that important to these people. If you take that away from them then you denigrate the form of their service and the way in which they look at the job. That is bad for morale.

It will be said that the review provisions are a protection, and so they are. But again why are we inviting error, putting further cost expense on the system and removing the very worthy training effect that the process had up until now? It should have been enhanced as a training process, not done away with keeping summary authorities in the knowledge that they had to follow these sorts of rules. There will be no training effect once they can do what this provision allows them to do, which is virtually anything. There will be nothing of that sort so far as they are concerned except for the very conscientious ones who perhaps may be able to get their hands on somebody to assist them in any particular situation.

The appeal provisions are said to be a protection but when one looks at section 168B headed ‘Evidence’ one wonders what sort of a protection it will be. Section 146A applies to an appeal in the same way as it applies to proceedings before a summary authority. Does that mean that the appeal process sees what is obviously a reliance on fifth-hand hearsay?  How does it disturb that when it does not like it and when the particular summary authority is entitled to rely on it, and when section 169B says that the same rules apply on appeal?

For the purposes of subsection (1) references to proceedings before a summary authority are to be read as references to an appeal before the Australian Military Court; and references to a summary authority are to be read as references in that context, except in relation to the exception in subsection 111A(1), which is immaterial for these purposes. It would be my submission that the inclusion of that section seems to make it implicit that, in respect of both reviews and appeals, the reviewing authority and the court are bound to take account of the fact that the rules of evidence need not apply. And just because they have been ignored or have been circumvented in a way would be no reason to set aside the result, because the summary authority was entitled to proceed in that way. Those behind me will say: ‘Of course that will never happen. We will have people in place who simply wouldn’t do that.’

The other problem is that the reviewing authorities are not legally qualified either. They are required to have, in almost every case, recourse at some stage of the review to the advice of a legal officer, but ‘competent reviewing authority’ under these provisions does not mean competent in the sense of properly or sufficiently qualified, capable and legally fitted for the task; it just means untainted by previous involvement in the particular matter. They are only guided by a legal officer. I do not wish to in any way be taken to denigrate our legal officers on that basis. It is no denigration of persons doing a job that they have not had the experience or the training to do this sort of work in review or to assist in doing it or to be forceful enough to tell a summary authority, ‘Look, you got it wrong, Boss.’ Many of them are and many of them will gain a great deal of courage now from the fact of the provisions in this bill that allow them, at least in law, to escape the influence of a commander. The reality is, of course, that commanders have more than one way of skinning a cat, and it is not a good look.

That is a direct contrast, so far as I can see—and I have not had time to go through this meticulously—with what reviewing authorities’ qualifications were before they appear to have been swept away by this piece of legislation. Under the old provisions, section 154 of the act in fact provided for a reporting officer appointed by the Chief of the Defence Force on the recommendation of the Judge Advocate General. Here, I cannot see any provision going beyond ‘legal officer’. There is nobody of the type referred to in that section which was:

A reviewing authority shall not commence a review without first obtaining a report on the proceedings from:

(a) in the case of a conviction, or a direction given—

under the subsection—

by a court martial or Defence Force magistrate--a legal officer appointed, by instrument in writing, for the purposes of this section by the Chief of the Defence Force or a service chief on the recommendation of the Judge Advocate General;

I cannot find any equivalent provision. It seems to be reduced to ‘any legal officer’ and in subsection (b) ‘in any other case—a legal officer’, as it was under the old provisions. That sort of provision was the bread and butter of the sort of work that the current newly appointed Judge Advocate did, that people of the stature of Air Commodore Kirkham did and that even people as lowly as me did. And it was done with a great deal of consideration, with not only 40 years experience in the service but 40 years experience in civilian practice, dealing with the same sorts of problems. I do not see any provision for that in the current bill, but I could be corrected. I have not had time to go through it with a fine toothcomb. If there is such a provision, that is good. If there is not, I think it is a pretty bad retrospective step.

As we have said in the Law Council submission, regarding the people who we understand are going to be appointed to deal with appeals in this matter, aside from Brigadier Westwood, who has a great deal of military trials experience and a very fine legal mind, the others appear to us to be very sadly lacking in that respect. I think that one who is slated, if I am correct, has had no trial experience at all. The concern then is that there needs to be some way of putting the experience that this process requires back into both these areas.

I will finish on a slightly more serious note by citing an example of the sort of thing that can go wrong in a summary process. I am going to refer to the records of a hearing that came up for review in the matter of 8220918, Private AM Taylor, and the Judge Advocate General’s advice of 3 December 2003. This was at a time when the training process should have at least had some effect. It had been in effect to a greater or lesser extent for nearly 30 years by then. Yet the records of that hearing were sparse, incomplete and internally contradictory—so much so that those doing the review decided to make inquiries concerning the onus and standard of proof that was utilised by the summary authority in that hearing. The answer that they got was this:

In relation to the standard of proof applied at the trial, I applied the criminal standard of proof. In this particular case, I wrote down all the proofs of the charge and then invited the prosecution to prove each of the proofs. When the prosecution had satisfied me—

And that would mean, on the criminal standard, beyond reasonable doubt—

they had proved the proof beyond reasonable doubt, I marked the proof with a tick.

This was before the defence was even heard.

If the prosecution proved the point with several proofs in support, I would tick the proof with a commensurate amount of marks. I would then hear from the defence, who would have to disprove the prosecution’s case.

That means that they would have to disprove the proof of something which, of course, has already been proved beyond reasonable doubt on this particular approach. The answer continued:

If the defence is successful in disproving the prosecution’s proof then the member is not guilty of the charge. The defence is only required to disprove one of the proofs for a finding of not guilty.

That particular case involved the defence doing what was perfectly proper, accepting all the prosecution’s statements as to what the facts and matters were. Without the prosecution calling any witness, the defence then called the accused and, following the evidence of the accused, called the prosecution witnesses apparently for the purpose of them being cross-examined. A very interesting privilege was then accorded to the prosecuting officer, who no doubt thought all his Christmases had come at once. That is an extraordinary departure. None of it would have come to light if the reviewing authority had not taken the trouble to inquire what sort of process was being applied. It is very funny as long as it does not happen to you. I do not think I can be any more helpful, but I am happy to take easy questions.

CHAIR —Thanks you, Mr Willee. I am not sure it is very funny at all.

Mr Willee —I agree that it is not funny.

CHAIR —May I start with your observations in the submission in relation to the right of the DMP to be able to appeal to the Defence Force Discipline Appeals Tribunal—the issue you talked about at the beginning. Is it the council’s view that, if that matter is not rectified within the legislation, the bill should not be passed?

Mr Willee —The council does not make those sorts of judgements. What it does is to try to provide improvement. It would certainly not be as presumptuous as to say that the bill should not be passed.

CHAIR —I think the council has recommended that to me in other contexts in other legislation. I just thought I would seek your view on this one.

Mr Willee —I certainly would not be that presumptuous. It is not something that the system cannot live without.

CHAIR —I think you said in your remarks that the section of the Criminal Appeal Act (New South Wales) which you cited has stood the test of time. Given the context in which the section is drafted, do you think that, if you were to introduce a similar section into this legislation, a concern of the defence might be that it could cause unnecessary delay or that it might fragment the legal proceedings?

Mr Willee —Those sorts of policy considerations are always a matter of some importance. But, clearly, with the hedges that the New South Wales section has put on the process, it has not; otherwise, something would have been done about it. It enhances the process. Very often the defence are in the same position, but it has always been noted that there is a vast difference between being a prosecutor and a defender. A prosecutor must act, as it were, as a minister of justice. The requirement to behave in that way means that prosecutors, and particularly directors of military prosecutions, do not interfere in criminal trials because it is to their advantage to keep them running unless it is absolutely necessary to stop them for this purpose. Defence, on the other hand, must do their utmost within the rules for the person whom they represent. That often means that they are not motivated, from a policy point of view, with the same care and attention to what effect it is having on the trial process unless it is going to work against them.

Since usually delay works in favour of the defence, that is probably the reason behind the policy that requires them to get leave as is set out in the section, whereas the director can have this under the section as of right, as it is spelt out, but a defendant seeking to do the same thing would require leave. That is the safeguard that we thought, in making the submission, highlighted the distinction—which made it more acceptable. But there would be those who would say that they both should be treated equally. I doubt whether the prosecution in defence matters would be concerned if they had to get leave. That would put them on an equal footing and that would stop any undue interference.

CHAIR —In the council’s submission, you have effectively reproduced section 5F of the New South Wales Criminal Appeal Act and amended references to the Court of Criminal Appeal with insertion of the Defence Force Discipline Appeals Tribunal. It seems to me that your proposition is that, effectively, this would be a fairly simple amendment to introduce into the process. You do not think it would require complex drafting and substantial amendment?

Mr Willee —There is nothing complex about this proposal.

Senator MARK BISHOP —Mr Willee, you might just put on the record your background of your military capacity or military experience.

Mr Willee —I am happy to do that, but I am not sure there is time.

Senator MARK BISHOP —Briefly.

Mr Willee —I started life as a Reserve Ordinary Seaman. I did an officer’s training course and was promoted to sublieutenant. In the process, I became a diver. I cross-trained in both diving disciplines but to a limited extent in the clearance diving area. I then took on being the OC of the only operational diving team in Victoria. At the same time, I procured a law degree. At that stage the Navy was looking for lawyers, and I did their work even though I was not part of the panel. So, from 1971 or thereabouts, I acted in the capacity of both a diving officer and a lawyer. After that, pressure was put upon me to change over. The inducements were extremely bad, and I resisted. I did not want a busman’s holiday but, for once in my life, I had to obey a superior authority and did so. Thereafter, I became a counsel in many military proceedings, both as prosecutor and defence. In the civilian field, I had become a prosecutor for the Queen in Victoria. I was seconded by the minister of defence to do the piracy inquiry in the Northern Territory. At the latter stages of that, I formed and was put in charge of the Victorian commercial crime group. I was then seconded by Gareth Evans as First General Counsel to the National Crime Authority. I went back into private practice in 1986, all the while doing what I could in relation to naval legal matters as counsel, as judge advocate and as a Defence Force magistrate. Eventually I was induced to step out of the arena by becoming a section 154 reporting officer. Ultimately, before I was declared statutory senile in November last year, I became the head of the military bar and that was the position I held when I left.

Senator MARK BISHOP —Thank you. Would you characterise the appeal tribunal, the DFDAT, as primarily a criminal appeal tribunal or primarily an administrative tribunal?

Mr Willee —I would characterise it as a criminal tribunal. It conducts itself as a court of appeal, not as an administrative tribunal.

Senator MARK BISHOP —It being so characterised, in your experience in the various state jurisdictions, and indeed in the Commonwealth jurisdiction in criminal matters where it applies, is it customary in those areas to have interlocutory proceedings part heard in criminal matters?

Mr Willee —It can happen, but I would not call it customary. Interlocutory matters in criminal proceedings are generally dealt with as swiftly as possible.

Senator MARK BISHOP —Getting to the heart of your complaint, if there is an issue as to whether particular material evidence should be admitted to the trier at first instance, in most criminal jurisdictions is that heard and determined at that instance or is there an appeal against his decision part way through the proceedings if either side is of the view that he makes the wrong decision to admit that evidence?

Mr Willee —It depends. Both situations are possible. If either side regards it as that important to their case then they will, as the saying goes, go over the road and get the appropriate order for the proceedings to be stayed and for the application to be made as soon as possible. The court will facilitate that happening as quickly as possible. However, in one case years ago called Beljajev, which took three years to get to the door of the court, I can recall that the matters of concern to the prosecution in relation to that trial were so huge that, when the interlocutory matter was brought before a single judge of the Supreme Court of Victoria, the hearing took three weeks and Justice Brooking had no hesitation in making the declaration. The declaration had the effect that was required. That is at odds with what we seem to be saying in our submission about how difficult it is, but it is very difficult and it was very difficult for the prosecution in that case. They got in by the skin of their teeth.

Senator MARK BISHOP —I certainly understand the seriousness of the issue you have brought to our attention. I am trying to get some advice as to what the customary practice is in non-military criminal jurisdictions, Commonwealth and state, around Australia that might warrant the defence tribunal in this case being treated either the same or differently, if there is a norm outside the defence tribunal.

Mr Willee —I do not think there is a norm, the reason being that there are two streams of competing judicial jurisprudence. One is that a criminal trial should never be interfered with, except in very exceptional circumstances. The other is that every so often something pops up which stands out so badly that action has to be taken. One is very much at the mercy of what appears to be the capricious nature of the court in that circumstance. But here, as we have cited in Brigadier Westwood’s case, there was simply a finding by the appeal judge that such circumstances could never be proved. You still have this tension between the two, but the courts resolve that and, in my experience, if I may say so, they resolve it correctly in the way in which they go about it. It is part of the experience of judicial discretion that they are able to do that. You cannot put that into words—nobody can put a discretion into words—but instinctively in my experience they have got it right.

Senator MARK BISHOP —Okay. Let me ask a question flowing on from that. I asked you earlier to outline your extensive legal and military careers, and you did so. Is the likelihood of a miscarriage of justice, of misuse or abuse, in the summary tribunals—either in Australia or in the field, if necessary—so great that we should seek to insert the sorts of protections that are in the New South Wales act, and which are sometimes a feature of other criminal jurisdictions around Australia, into this bill before it is passed by the parliament? I am asking for an answer in your experience not necessarily the Law Council’s formal position.

Mr Willee —Yes. There are several reasons for that. Firstly, because it is such a simple thing to do; secondly, because the military has the capability within its disciplinary process to make sure that it is used appropriately; and, thirdly, because I am concerned about the level of experience of those who give rise to rulings which need to be dealt with in this way. I say that without denigrating them in any way whatsoever.

Senator MARK BISHOP —Protection first is your argument?

Mr Willee —Yes. The judicial process requires—Sorry, I did not mean to interrupt.

Senator HOGG —Sorry, I was making an aside to my colleague that we are dealing with Defence.

Mr Willee —The actual judicial process, be it in Defence or anywhere else, requires fairness to both sides. The prosecution has as much of an interest in preserving discipline as the defendant has in being treated fairly, and there is no reason why both of those things cannot be catered for.

Senator MARK BISHOP —You may not wish to answer this next question; if you do not, certainly you do not have to, Mr Willee. We received six or seven submissions from various arms of the ADF, all of which were in support of the various provisions of the bill almost in their entirety. We also received a submission from the Judge Advocate General, who did not draw to our attention the criticisms that you have mentioned. Why would that be the case?

Mr Willee —There are a number of reasons. The principal one is that it is very attractive for command to get back to a situation where it thinks its people can deal with these matters, because it is very good for the disciplinary process. That is the first reason. So it is easy to slip into the laudatory suggestion that this is a good thing. The second matter of so much concern to me was that Brigadier Tracey had not addressed it. In the short time I had I did not have any time to consult with him, but I did consult with the former Deputy Judge Advocate of the Air Force and say, ‘Am I missing something here?’ He said, ‘No, you are absolutely right.’ It is on that basis that I made the comments. Certainly it gave me pause to think that somebody such as Brigadier Tracey had missed it—if he had missed it; I do not know. I will have to take that up with him at some later time. It is not something I have had a chance to put to him.

Senator MARK BISHOP —Thank you, Mr Willee.

CHAIR —Mr Willee, you raised material in relation to 146A(1)(b)(ii) on questions of the rules of evidence, and I am working from your statements this morning, not from anything more formal than that. It seems that the issues you raise about the manner in which the summary authority can operate, and operate not bound by the rules of evidence, are quite serious, but I note that the preceding subsection, subsection (i), refers to the desire for the summary authority to act with as little legal formality or legal technicality as possible while ensuring fairness. Without wishing to put words in anyone’s mouth, I assume that one of the reasons for which subsection (ii) may have been included was to give effect to subsection (i), that if you have a more informal environment—and I absolutely understand the issues that you have raised—then you can have proceedings which are not as formal or technical and are therefore dealt with summarily, as you might say; and that makes the whole process so much more simple.

Mr Willee —Softer.

CHAIR —And softer.

Mr Willee —Yes, and there is a place for that. I doubt whether that place is one that the average serviceman would recognise, where his legal rights were being dealt with in a way which related to discipline. You can hardly come off the parade ground, having been disciplined and understanding the way in which the service works, and feel comfortable with a fireside chat with your CO while he heats the poker with which he is going to brand you. I believe that times have moved on from that position inasmuch as it is possible to have a process such as the one I have just derided, but it has to have some constraints. Those constraints are ones which make people feel comfortable with the process, and there are many ways of doing that—that is what I think is meant by informality—without throwing away the need to make sure that you are not listening to what the warrant officer is telling you Corporal Jones says he saw on the wharf the night before, but Corporal Jones is not available, or what Corporal Jones thought Sergeant So-and-so said to him about such-and-such that relates to the matter. It needs to have some constraints.

CHAIR —While you were making your observations this morning, I was looking at the penalties and punishments aspects of the bill, and I think you then went on to say that these are not insignificant to a service career and in the effect on one’s service career.

Mr Willee —What I said was that, even where they appear to us to be insignificant, to the serviceman who does not regard this as just another job but who really wants to be part of a service—and there are still a lot of them left—to be even accused of such a thing is very distressing from the point of view of their attempt to achieve perfection.

CHAIR —You gave us a brief historical analysis, if you like, of the circumstances where due attention was paid to the need to be guided by the rules of evidence in the last couple of decades, as these proceedings have grown and changed. You are advantaged by that perspective, so I rely on your words here today. I summarise, in my own mind at least, what you said as meaning that this would be a retrograde step to remove the guidance of the rules of evidence and to go back to a point which needed to be addressed and ameliorated by the reintroduction of consideration of the rules of evidence, and that from your perspective you do not understand why we would be doing that.

Mr Willee —Yes, exactly. It is not fair for me to characterise it as a reintroduction. Forty years ago, very often the only advice as to the rules of evidence, or what people thought they were, was coming from non-legally-qualified judge advocates who had through their experience built up an understanding, but there was no real formal attempt to acquaint summary authorities with the absolute rules of evidence as we know them that came in in the Evidence Act and various other provisions. It was not a one-slap process; it was a gradual matter. It was an attempt to breed the evidentiary process into the disciplinary process.

CHAIR —If you combine (ii) with (iii) and (iv), the defendant can find themselves in a quite remarkable situation. You have talked about fifth-hand hearsay, but they can find themselves in a quite remarkable situation in trying to put together a defence that responds to any documents or witnesses that might be helpful or relevant and given weight by the summary authority without any guidance at all on the rules of evidence. How would you suggest a defendant deals with that?

Mr Willee —As a last resort, where a defendant feels that they are disadvantaged because things are brought out of the woodwork, as it were, and they have not had a chance to deal with them, there is always a process of getting an adjournment. In disciplinary matters, it is not all that easy to get an adjournment but it certainly is possible. A summary authority attempting to be fair would give a defendant time to do that if he understood that was one of his rights.

CHAIR —That is a big ‘if’.

Mr Willee —Yes. As I say, that is why it is such a retrograde step; it goes back. Defendants have access to legal officers too, but the legal officer can only give advice on the material that the defendant brings to them. If something is sprung later on then there is a lacuna. There is no advice on that particular matter. I am not so much concerned with the unfairness of that aspect, although it is obviously a detail which you have teased out which is part of the real problem.

CHAIR —When you take the next step, which you did, and look at 168B, which transposes the application of 146A in initial proceedings to proceedings on appeal, that also includes, as I understand it, an appeal before the Australian Military Court itself.

Mr Willee —I have not teased that through.

CHAIR —It says:

  • (a)     references to proceedings before a summary authority are to be read as references to an appeal before the Australian Military Court ...

Mr Willee —Yes. That was the point I was making. You would expect there to be a section that does that in relation to appeals to the Military Court because, after all, in normal circumstances where properly qualified people are appointed to that court the sorts of concerns that I have are going to be lessened. When you have been practising in the civilian field you are constantly dealing with these tribunals which are not bound by the rules of evidence. The general rule is that most practitioners in those circumstances will follow the rules of evidence unless there is a very good reason not to do so.

CHAIR —But they are not usually dealing with matters of criminal concern.

Mr Willee —Those sorts of tribunals do not really exist in the criminal sphere—

CHAIR —That is right.

Mr Willee —but, where they do, they are generally regarded as pretty awful. I do not want to tar anybody with a particular brush, but medical boards and psychologist boards make some awful decisions.

CHAIR —I might be misreading this—I am very happy to be corrected—but if you read 146A and then look at 168B, you will see that it says, ‘146A applies to an appeal in the same way as it applies to proceedings before a summary authority.’ I read that to mean that the rules of evidence do not apply in the appeal process either.

Mr Willee —In that particular instance—


Mr Willee —in relation to an appeal about a summary matter.

CHAIR —Yes. Therefore, does it also mean that the rules of evidence do not apply in relation to an appeal from a summary matter before the Australian Military Court?

Mr Willee —If that is where the appeal is, as I understand it, the application of the section goes.

CHAIR —So we end up with the rules of evidence not applying in the AMC?

Mr Willee —Only in relation to—

CHAIR —Certainly, but it is still the Australian Military Court.

Mr Willee —That is the way I read it. I am happy for one of my colleagues to correct me.

Senator MARK BISHOP —But there would not be any new evidence at the appeal court, would there?

Mr Willee —There could be. There could be new evidence; it could be dealt with on the papers; it could be dealt with by hearing; and, indeed —

Senator MARK BISHOP —Is the appeal court hearing a de novo hearing? Can the appeal court hearing in these summary criminal matters be a de novo hearing as well as an appeal on the—

Mr Willee —I have not analysed that yet, but I do not believe so. What this legislation seems to be saying is that the appeal can be conducted on the papers or it can be conducted by an appearance on behalf of the parties, and indeed there is a provision which requires such a hearing if the court thinks that is necessary.

CHAIR —That is in 168A.

Senator FORSHAW —So you have to make an application to introduce fresh or new evidence on the usual criminal—

Mr Willee —Yes. Those provisions are also there.

CHAIR —But it can be done without observation of the rules of evidence at the level of the Australian Military Court for those matters which may be summary proceedings which flow from a decision of a summary authority—I understand that.

Mr Willee —I believe that to be what it says.

CHAIR —I can seek clarification of that.

Mr Willee —I may be in error about that. As I said, I have not had the greatest amount of time to look at it, but it seems to me that that is what it says.

CHAIR —In that regard, in this process at least.

Mr Willee —The other part of it is that, if it does it in that forum, it does it in reviews as well. So what will a reviewing officer say? ‘He was entitled to do that because the statute says that he can proceed in that way,’ even though I would not have done it.

Senator MARK BISHOP —At the summary hearing, if the rules of evidence do not apply and a piece of material can otherwise be introduced and have probity of value, when you go to the appeal court, either on merit or a point of law, wouldn’t it be logical to have the same lack of rules of evidence applying at the appeal court level as it does at first instance?

Mr Willee —That is how I read what the provision does.

Senator MARK BISHOP —Yes, it is entirely logical.

Mr Willee —But that does not mean that that is what they intended.

CHAIR —That does not mean it is appropriate.

Mr Willee —There may be some other reason why they did not intend that.

Senator MARK BISHOP —The chance is that it may not be appropriate, but I accept that it is certainly logical, otherwise you have different rules applying.

Mr Willee —But, in any event, the argument—

CHAIR —We do not want the court and the AMC not complying with the rules of evidence, frankly.

Senator MARK BISHOP —They do at first instance.

Mr Willee —The argument against my proposition would be that, as happens in the civilian arena, once it gets to that level they are going to follow the rules of evidence, unless there is a good reason to not do that, and that it is the safeguard.

CHAIR —But it is an informal one, not a formal one.

Mr Willee —It is totally informal, but that is generally what is done.

CHAIR —As there are no further questions, I thank you very much for travelling to Canberra to assist us in the hearing this morning. We really appreciate your time and your observations. If there are any further matters which you think the committee should pay attention to, then we would be happy to hear about those. However, today is effectively the reporting date for the committee. I am not sure how we will end up handling that, but your assistance has been most gratefully appreciated.

Mr Willee —Thank you very much. I am very grateful for those remarks and very pleased to have been of some service.

CHAIR —Thank you. You have.

 [10.32 am]