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HANSARD EXTRACT

Defence Legislation Amendment Bill 2006; Second Reading

29 November 2006

Mr HAYES (Werriwa) (4.58 p.m.)—I thank the member for Throsby for that valuable and timely contribution. Labor, as has just been indicated, does have some serious concerns about the Defence Legislation Amendment Bill 2006 before us today. The bill has three main purposes: firstly, the creation of a new military court; secondly, the creation of military juries; and, thirdly, the provision of power for the creation of a Chief of Defence Force commission of inquiry that would investigate all suicides and deaths of personnel in service.

The opposition has raised a number of concerns about the operation of provisions of this bill—provisions which seem to attack the very premise on which this bill is based. In the second reading speech, the Minister Assisting the Minister for Defence stated:

The primary measure of this bill is the establishment of a permanent military court, to be known as the Australian Military Court. The Australian Military Court will be independent of the chain of command, and will replace the current system of individually convened trial by courts martial or Defence Force magistrate. This new military court will be established under the Defence Force Discipline Act.

I considered this statement, which goes to the very heart of what the government is attempting to achieve with this bill, and came to the conclusion that this model does not lend itself to being independent of the chain of command as the minister indicated in his second reading speech to the House.

My greatest concern about this bill stems from the minister’s statement that the Australian Military Court will be completely independent of the chain of command. Let us take a moment to consider the establishment of the new military court in the context of this statement. If we consider the minister’s assertion that the new court will be completely independent of the chain of command in light of the provisions before us—if we systematically go through how this court will operate—I think any reasonable person would arrive at a significantly different conclusion than that which the minister outlined in his earlier statement. It is simply not the case to say that the new military court is independent of the chain of command. It is not even a poor facsimile of independence.

The most significant provisions of this bill which make a mockery of the suggestion of independence relate to the appointment of judges to the court. The bill provides for a Chief Military Judge to be appointed for a term of five years, the appointment of two permanent judges and a panel of part-time advocates. All appointees will be required to have legal qualifications and, in particular, must have military service. The government’s proposal is not all that different from the current system of courts martial or Defence Force magistrates which it replaces.

The government’s model as proposed in this bill does a number of things. It creates the new military court within the Defence Force Discipline Act. Judges must be serving officers of legal experience. The term of appointment is for a period of five years and reappointment will only be in exceptional circumstances. At the conclusion of their term, judges are to be compulsorily retired. If they reach retiring age during the term, they are also disqualified. Part-time judges are not allowed to engage in any other employment outside their duties. If a judge ‘no longer meets his or her individual service deployment requirements’, they may be dismissed. The Chief Military Judge is to be of a rank no lower than a one star general and a military judge is to be of a rank no lower than that of commander or equivalent. In addition, judges are to be appointed by the minister from a list selected by a special committee, which is in turn to be selected by the Chief of Defence Force. This in no way reflects anything like a civilian court and it in no way resembles a model that could be described as truly independent.

I note that certain criticisms of the model were made by the Law Council of Australia, which seemed pretty scathing in its criticism. It criticised the strong perception of a lack of independence, but also made specific criticisms in respect of the practicalities of recruitment and retention. These are criticisms that have come from the Law Council of Australia. In establishing a tribunal, at least the views of the learned personnel who make up that body should be taken into account. If that is not enough, the Judge Advocate General makes this important statement:

... it is now proposed ... that the military judges will have even less independence, so far as their terms of appointment are concerned, than they have under the existing arrangements. ... To now move to five-year renewable terms, which are not automatic ... considerably reduces the actual and perceived independence of the judges ... and greatly impedes the AMC’s ability to develop experience and excellence.

Again, this is the comment of a person reasonably close to the action, so to speak; it should not be dismissed easily when deciding whether this tribunal goes close to what the minister said in his second reading speech in developing greater independence for the new military court. This in no way comes close to resembling anything you would expect to find in a civilian court and it is in no way reflective of something truly independent.

When this matter was examined by the Senate, the report proposed that the court created should be created under chapter III of the Constitution, with permanent judges appointed by the Governor-General to make sure they are absolutely free of the chain of command and the entire military. Instead, the government has tried to use spin rather than fact to perpetuate the myth that this new court will be completely independent of the existing chain of command. It has glossed over the recommendations of the Senate report in an attempt to paper over some of the serious aspects of military justice.

The new court that will be established following the passage of this legislation is, quite frankly, no more independent of the chain of command than the system that it replaces in relation to courts martial and Defence Force magistrates. That is not just my view. That is the view of the Judge Advocate General. While the government attempts to defend this approach by asserting that the military justice system is unique and different to the civilian justice system, it seems that this is nothing more than a poor attempt to avoid the introduction of a truly independent system of military justice that is indeed separate from the chain of command.

One final criticism I would make in this regard is to highlight that the proposed court is not a court of record. The fact that it is not a court of record seriously undermines the status of the court as a genuine court and judicial authority. That is a serious shortcoming. Given that the court is supposed to be independent, its decisions appellable and its powers substantial, it should be a court of record. Bear in mind that this court will have powers to determine actions brought to it concerning any crime that is alleged to have been committed by military personnel military either in this country or when they are deployed overseas. So this body will have considerable power. It will not be constrained simply to disciplinary matters. With that, I think our military deserves to have a military justice system which is of a superior nature to the military justice system which currently exists—the one which the government has criticised and says should be replaced by a body of greater independence than that which currently exists.

The introduction of military juries is something different. It is clearly a step in the right direction. The proposal is to have military juries comprising six serving personnel of a rank no lower than that of the accused, with binding decisions by a majority of four. I think that is a positive proposal. Under this proposal there is at least a jury system and, as a consequence, decisions are not solely in the domain of a court martial panel or military magistrates. I think that is a step in the right direction. Trial by jury is widely accepted in our democracy as providing an opportunity for greater liberty and is protected by our Constitution. This is something that goes some distance in providing our military men and women with a greater sense of justice and confidence in the justice systems that they may be subject to during their military life.

Having acknowledged that this is an improvement to the military justice system, there are some differences between military and civilian juries for which good explanations have not been provided. I know that this matter is being considered by a Senate committee. I will be very interested to see what their views are, but I simply record my view that the establishing of military juries by this legislation is worthy of being applauded.

The serious flaws in the system before us today are symptomatic of the contrasting nature of rhetoric and action when it comes to this government’s dealings with defence and defence personnel issues. In his second reading speech, the Minister for Veterans’ Affairs and Minister Assisting the Minister for Defence noted that, when the Howard government responded to the Senate report into the effectiveness of Australia’s military justice system, the then Minister for Defence noted that the government was committed to providing the best equipment and conditions so that Australia had a modern fighting force. That is a noble position to be adopted by the government. He went on to say:

The government continues to express its admiration and appreciation for our defence personnel and the important, challenging and often dangerous activities they undertake, both here in Australia and in overseas operations.

While I am sure that the sentiments of the minister reflect the views of the government, I cannot let the statement pass without contrasting it to the attitude that the government and the minister took to Labor’s motion supporting Korean veterans seeking recognition in the post armistice period. The minister is willing to stand in this place and indicate strong support for our troops but he rushed out and made statements in contrast to this with respect to what occurred for veterans who served in Korea post the armistice period. You will recall, Mr Deputy Speaker, that this government has made considerable statements, and probably rightly so, about respect and admiration for our existing troops but I have to say that the proof is in the pudding: the level of support that some of our past serving members of the military have received from this government. It is interesting to contrast the two approaches from the government: on the one hand, supporting and saying that their action in terms of the military justice system is a reflection of that; the other being the different standards that they adopt when dealing with the claim for recognition by those service personnel who served in Korea post the armistice period.

While I have taken this opportunity to point out the contrasting attitudes of the government when it comes to the current and former Defence Force, I should not want to be considered as having a lack of respect for any men or women who have offered their service in defence of the country. On a personal note I make no distinction between current and former service men and women; as far as I am concerned they have, in most cases, willingly put themselves forward to defend our nation’s interests. This is a noble character trait and one deserving of our recognition and support.

Recently I had the opportunity to experience military life personally through my participation in the Australian Defence Force exchange program. I take this opportunity to thank all of the men and women who looked after me during the week I spent at RAAF Base Williamtown, north of Newcastle. In particular, I would like to thank the base commander, Mr Wal Mazzoni, Air Commodore of Air Combat Group, Geoff Brown, and Air Commodore of Surveillance and Response Group, Tim Owen. Spending a week in that environment, with people who have been and continue to be deployed overseas, doing quite frankly the things that this country needs to be done, instils a great deal of pride. It did not matter whether they were the air commodores or the base commander I referred to, maintenance personnel or clerks: everybody struck me with their enthusiasm and commitment to duty.

One thing that does strike you when you are going into that environment is that they are all committed to the task at hand, that they all see themselves as having a role. They are not all pilots or navigators but they all make a contribution to the fighting force of the RAAF. I know the member for Lindsay will speak after me and that she is a former RAAF member. I pay regard to their professionalism and commitment. Quite frankly these people showed a dedication during the time I was there and continue to show it on a daily basis, which we as members of parliament and as Australians should be very proud of.

The bill before us to reform the military justice system, as presented by the government, is a missed opportunity. The government has missed a once-in-a-lifetime opportunity for Australia to develop a first-class military justice system for our people which is truly independent of the chain of command. (Time expired)

 

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