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Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Bill 2014

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2013 - 2014

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

SENATE  

 

 

  

 

 

 

 

 

DEFENCE LEGISLATION AMENDMENT (MILITARY JUSTICE ENHANCEMENTS -INSPECTOR-GENERAL ADF) BILL 2014

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Defence, Senator the Hon David Johnston)



 

DEFENCE LEGISLATION AMENDMENT (MILITARY JUSTICE ENHANCEMENTS -INSPECTOR-GENERAL ADF) BILL 2014

 

GENERAL OUTLINE

 

The purpose of this Bill is to give effect to certain Defence policy in the Defence Act 1903 . The Bill will make clear the emphasis on transparency, predictability and accountability in decision making affecting Australian Defence Force members. It will achieve this by clarifying and enhancing the independence, powers and privileges of the Inspector-General ADF, and enable reform of the ADF redress of grievance, investigation and inquiry practices as a result of the Rethinking Systems of Review.

 

The Bill

 

The Bill will amend Part VIIIB of the Defence Act 1903 to enhance the independence of the Inspector-General ADF and provide a statutory basis to support regulatory change including re-allocation of responsibility for investigation of Service related deaths and the management of the Australian Defence Force redress of grievance process to the Inspector General of the Australia Defence Force.

 

The amendments:

  • Make it clear that the Inspector-General ADF mechanism for internal audit and review of the military justice system is independent of the ordinary chain of command.
  • Provide for the Minister to direct the Inspector-General ADF to investigate or inquire into a matter concerning the Defence Force.
  • Make it clear that the Inspector-General ADF may be prescribed functions that relate to a members service in the Defence Force other than the military justice system.
  • Make it clear that regulations can be prescribed that abrogate the privilege against self-incrimination for witnesses appearing before the Inspector-General ADF or inquiry officers appointed by the Inspector-General ADF, as is the case for Boards of Inquiry and other types of inquiry appointed in Defence. Evidence given by a witness under any such regulatory abrogation of the privilege against self incrimination attracts a statutory bar on that evidence being used against the witness giving it, excepting use of the evidence for proceedings for giving false evidence to the inquiry.

·          To make it clear that the witness evidence use immunity in subsection 124(2C) applies in relation to witnesses who appear before the Inspector-General ADF or inquiry officers appointed by the Inspector-General ADF.

·          Require the Inspector-General ADF to prepare an annual report relating to the operations of the Inspector-General ADF for tabling in Parliament.

  • Strengthen the independence of the Inspector-General ADF by making it clear that, where the Inspector-General ADF is directed to conduct an inquiry or investigation by the Chief of the Defence Force, the Inspector-General ADF may cease the inquiry or investigation if the Inspector-General ADF forms a belief that the continuation of the inquiry or investigation is not otherwise warranted, having regard to all the circumstances.

 

Financial Impact Statement

 

No additional funding requirement has been identified. Where necessary, reallocation of extant Departmental resources will occur.



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Legislation Amendment (Military Justice Enhancements - Inspector-General ADF) Bill 2014

This Bill is 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 .

 

Overview of the Bill

 

The purpose of this Bill is to effect certain Defence policy in the Defence Act 1903 to clarify and enhance the independence, powers and privileges of the Inspector-General ADF, and to provide that he or she must prepare an annual report to Parliament relating to the operations of his or her office as set out in subsection 110C(1) of the Defence Act 1903 .

 

Human Rights Implications

 

The Bill engages the following rights:

 

·                            Article 7 of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5) (ICESCR); and,

·                            Article 14(1) of the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23) (ICCPR).

 

Article 7 - ICESCR

 

The proposals promote the right to just and favourable conditions of work contained in article 7 by providing access by Defence Force personnel to a statutorily independent person for investigating or inquiring into flaws and failures concerning the military justice system and other matters concerning the Defence Force.

 

Article 14 ICCPR

 

Article 14(1) of the ICCPR requires people enjoy a fair hearing of any criminal charges against them and of their rights and obligations in a suit at law. 

 

The amendments to section 124 of the Defence Act 1903 by Item 11 of the Schedule to the Bill promote this right. The Australian Government has a legitimate interest in making regulations that may require a witness to incriminate themselves in order that the true circumstances and events subject to inquiry by Defence may be properly ascertained. Item 11 balances this object by ensuring that witnesses are not as a result penalised in subsequent court proceedings. Any evidence or disclosure made by a witness to an inquiry, including Inspector-General ADF inquiries, is not admissible against that witness in civil or criminal proceedings in any federal, State or Territory court. This protection also extends to the use of such evidence in Australia Defence Force's disciplinary tribunals created in accordance with the Defence Force Discipline Act 1982 . There is also no power to compel witnesses to incriminate themselves in respect of an offence for which they have already been charged but not yet tried for.  The legislative scheme ensures that the right of people to enjoy a fair trial is promoted and enhanced by eliminating the possibility of the unfair use of admissions of wrongdoing.



DEFENCE LEGISLATION AMENDMENT (MILITARY JUSTICE ENHANCEMENTS - INSPECTOR-GENERAL ADF) BILL 2014

 

Section 1 - Short title

 

This clause provides for the citation of the Act as the Defence Legislation Amendment (Military Justice Enhancements - Inspector-General ADF) Act 2014 .

 

Section 2 - Commencement

 

This clause provides that sections 1 to 3 of the Act commence on the day the Act receives the Royal Assent. The clause also provides that items in Schedule 1 to the Act commence 28 days after the Act receives Royal Assent.

 

Section 3 - Schedule

 

This clause is a formal provision specifying that amendments or repeals are made to the provisions set out in the sections in the schedule.

 

Schedule 1 - Amendments

 

Defence Act 1903

 

Item 1 inserts the word 'main' in front of 'object' in section 110A to broaden the scope of Part VIIIB of the Act.

 

Item 2 inserts 'independent of the ordinary chain of command' after 'avenue' in paragraph 110A(b). This clarifies that the Inspector-General ADF's functions, when examining failures and flaws in the military justice system, are exercised independently of the ordinary chain of command.

 

Item 3 repeals paragraph 110C(1)(e) of the Act and inserts 6 new paragraphs and a note at the end of subsection 110C(1).

 

The first of these paragraphs provides that the Minister may direct the Inspector-General ADF to conduct an inquiry or investigation into a matter concerning the Defence Force.

 

The second provides that the Chief of the Defence Force may direct the Inspector-General ADF to conduct an inquiry or investigation into a matter concerning the Defence Force.

 

The third provides that additional Inspector-General ADF's functions may be prescribed by regulations.

 

The fourth provides that the Inspector-General ADF's functions are as conferred by or under the Act.

 

The fifth provides that the Inspector-General ADF's functions are as conferred by or under any other law of the Commonwealth.

The sixth provides the Inspector-General ADF may do anything incidental or conducive to the performance of the Inspector-General ADF's functions.

 

The note draws attention to the limitation subsection 110C(4) imposes on third newly inserted paragraph.

 

Item 4 repeals subsection 110C(2) of the Act.

 

Item 5 inserts three new subsections into section 110C.

 

The first of these subsections provides that the additional functions of the Inspector-General ADF that may be prescribed by regulations must relate to at least one of: the military justice system; a complaint by a member of the Defence Force about a decision, act or omission relating to their own service in the Defence Force; or the death of a member of the Defence Force that appears to have arisen out of, or in the course of, the deceased's service.

 

The second subsection provides, to avoid doubt, that regulations may be made regarding the Inspector-General ADF's functions when inquiring into or investigating:  a complaint by a member of the Defence Force about a decision, act or omission relating to their own service in the Defence Force; and the death of a member of the Defence Force that appears to have arisen out of, or in the course of, the deceased's service.

 

The third of the new subsections provides that the second of the new subsections does not limit prescription of additional Inspector-General ADF functions by regulations

 

Item 6 repeals section 110D of the Act.

 

Item 7 inserts two new sections into the Act and the end of Division 1 of Part VIIIB.

 

The first new section, section 110DA, provides that it applies to Inspector-General ADF inquiries or investigations conducted into matters concerning the military justice system and inquiries or investigations conducted by the Inspector-General ADF under the regulations. The section also empowers the Inspector-General ADF to conduct a inquiry or investigation on his or her own initiative, at the request of a service chief or at the request of an individual.

 

The second new section, section 110DB provides that the Inspector-General ADF may end an inquiry or investigation if satisfied that continuing it is not warranted in the circumstances, unless that investigation or inquiry has been directed by the Minister.

 

Item 8 repeals section 110R and substitutes a new section 110R. A new subsection 110R(1) requires the Inspector-General ADF to provide as soon as practicable after the end of each calendar year to the Minister, for presentation to the Parliament, a report on the operations of the Inspector-General during that year. A new subsection 110R(2) provides that the operations of the Inspector-General ADF to be reported to the Parliament include the operations of inquiry officers, inquiry officer assistants and assistant Inspectors-General ADF.

 

Item 9 inserts two new subsections in section 124 after subsection 124(2A).

 

The first new subsection, 124(2AA) provides that regulations may be made for Inspector-General ADF investigations and inquiries that require a person appearing as a witness to answer a question even if the answer may tend to incriminate the person.

 

The second new subsection, 124(2AB) provides that the regulations may make provision for requiring a person appearing as a witness before a Inspector-General ADF appointed inquiry officer, Inspector-General ADF appointed inquiry assistant or Assistant Inspector-General ADF, to answer a question even if the answer may tend to incriminate the person

 

Item 10 omits 'Subsection (2A) does' and substitutes 'Subsections (2A), (2AA) and (2AB) do' in subsection 124(2B).

 

Item 11 omits 'that subsection' and substitutes 'the subsection concerned' in subsection 124(2B). Together with item 10, this provides that the Inspector-General ADF, a Inspector-General ADF appointed inquiry officer, Inspector-General ADF appointed inquiry assistant or Assistant Inspector-General ADF cannot require answers to questions from a person which may tend to incriminate that person in respect of an offence with which that person has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.

 

Item 12 inserts a new subsection, subsection 124(2CA), after subsection 124(2C) of the Act. The new subsection provides that a statement or disclosure by a witness to the Inspector-General ADF, assistant Inspector-General ADF, Inspector-General ADF appointed inquiry officer and Inspector-General ADF appointed inquiry assistant is not admissible in evidence against that witness in any civil or criminal proceedings in any federal court or court of a State or Territory or proceedings before a service tribunal, unless that proceeding is for giving false testimony to the Inspector-General ADF, assistant Inspector-General ADF, Inspector-General ADF appointed inquiry officer or Inspector-General ADF appointed inquiry assistant.

 

Application & Transitional Provisions

 

Item 13 provides for the continued operation of section 110D of the Act repealed by item 6 to inquiries and investigations started prior to the commencement of this item.

 

Item 14 provides for the application of section 110DA of the Act as inserted by item 7 to apply to inquiries and investigations started at or after the commencement of this item.

 

Item 15 provides for the Inspector-General ADF to provide a report in accordance with the amended section 110R of the Defence Act 1903 for the calendar year in which this item commences and each following calendar year.