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Monday, 14 September 2009
Page: 9455

Ms SAFFIN (7:05 PM) —I speak in support of the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009. Bill No. 1 reinstates the military justice machinery and it does so by amending a number of acts. As we know, this has been necessitated by the High Court’s decision on 26 August this year in Lane v Morrison, where it declared invalid the provisions that established the Australian Military Court. I commend the Minister for Defence in acting so swiftly to bring this legislation before the parliament.

My colleague the honourable member for Isaacs has covered the constitutional reasons. Everybody keeps referring to them as complex constitutional reasons—maybe, but chapter III is pretty straightforward as are certain provisions, and there has been a long lead time with this legislation during which legal advice has been given in many areas, including with my parliamentary colleague the honourable member for Barton, now the Attorney-General. So what the outcome of some of that might be was clear. However, I will leave that, recognising there are always some complexities around High Court decisions and constitutionality.

The AMC did have a long period of operation and did commence under the previous government. Yes, there can be a debate about who said what and who gave advice—it is now a matter of public record—but the issue itself has bipartisan support of all members. We do need a modern and coherent military justice system. That was the basis of the Australian Military Court. I will make a brief comment on bill No. 2 and then a few remarks that cover both.

The Military Justice (Interim Measures) Bill (No. 2) 2009 is necessitated by the invalidity, but the objective of bill No. 2 is to maintain the continuity of discipline in the Defence Force. The way in which this will be done is by instituting disciplinary sanctions on the persons who had punishments imposed by the AMC. It will also cover, where necessary, summary authorities in the period between when the AMC was established and the High Court’s declaration of invalidity. This is absolutely essential. In the Senate the Minister for Defence in his closing remarks in the second reading debate said:

This 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.

The Parliamentary Secretary for Defence Support said the same thing just a little while ago in this House. It is an important distinction that needs to be made and understood when we are introducing these bills. The other important provision with this is that if an ADF member remained dissatisfied with the conduct and outcome of their trial then they had the additional right to petition their service chief, to appeal to the Defence Force Discipline Appeal Tribunal and other rights. I understand that what flows from this legislation is the ability to have those appeal rights in place but with the punishment still standing.

There is another issue that the Minister for Defence has addressed. The minister made it clear that the current action of the government is working to establish a military justice system, a military court, that will be in conformity with chapter III of the Constitution. I understand that that work is in place now. Hopefully there will not be a big time lag, but it is absolutely necessary to do what is being done by the government decisively so as to cover that period and so that there will be a system set up.

It is important to have a system that we know and understand, and one that all the ADF members understand. So it is important that we are instituting something that is known to all parties. But it is critical to move forward and to have a system that will sit at the pinnacle of the military justice system, if you like. Even though it will deal only with a small number of cases, as the Australian Military Court did, it will be informing and benchmarking the entire system. That is where its primary role will be: in changing the nature of military justice.

I have a few concluding remarks. To re-establish an effective military justice system, the Defence Force Discipline Act 1982 will be reinstated. This covers courts martial and Defence Force magistrates; the position of Chief Judge Advocate, the judge advocate’s panel and the Registrar of Military Justice; reviews and petitions in respect of both summary trials and trials held by courts martial or Defence Force magistrates; and reviewing authorities. The previous amendments to the said act, directed to improve the summary authority system, will be retained. My advice is that the class of offence system, which determined how an offence would be dealt with by the AMC, was not specifically struck down by the High Court. But this system will be replaced by the bill. So there will be that continuity and a coherent approach to it. With those remarks, I commend the bills to the House.