Mike Kelly (Eden-Monaro, Australian Labor Party, Parliamentary Secretary for Defence Support) Share this | Hansard source

in reply—Before I commence summing up the debate, might I also echo the comments of the member for Herbert in welcoming representatives of the Australian Defence Force Parliamentary Exchange Program into the chamber. It is a privilege and a delight to have you in the building and it gives us focus to this debate.

In summing up the debate on the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009, I want to begin by thanking the House for supporting this very important and urgent piece of legislation. On 26 August 2009, the High Court declared that the provisions establishing the Australian Military Court were invalid. The purpose of bill No. 1 is to return to the service tribunal system that existed before the creation of the Australian Military Court. This is, as has been said, an interim measure until the government can legislate for a chapter III court, which it will do as a matter of priority.

To re-establish an effective military justice system, the pre-2007 Defence Force Discipline Act 1982, the DFDA, will be reinstated. These measures will include courts martial and Defence Force magistrates, the positions of Chief Judge Advocate, judge advocates and the Registrar of Military Justice, and reviews and petitions in respect of both summary trials and trials held by courts martial or Defence Force magistrates and reviewing authorities.  Transitional provisions will be inserted into the DFDA to cover all matters that have been referred to the AMC 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 transmission to the relevant positions of Chief Judge Advocate, members of the judge advocates panel and Registrar of Military Justice.

The main object of bill No. 2, as has been discussed, is to maintain the continuity of discipline in the Defence Force in the light of the High Court’s decision. The principal mechanism by which this 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. 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. 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, consistent with the exclusively disciplinary purpose of its provisions, the bill is expressed to have effect for service purposes only. In other words, the bill will not affect an individual ADF member’s civilian rights and entitlements.

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 all affected persons a right to seek review of their case and 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.

As I have mentioned, the government is in the process of developing, with the intention of introducing the legislation as a matter of priority, options for the establishment of a military justice court that complies with chapter III of the Constitution. I note the comments by the member for Paterson in relation to the difficult constitutional issues that will be posed by this and those that have existed previously; his points about this system needing to be impartial, to be independent and transparent and to render equity and fairness to the members of the ADF were well made. Certainly the government share those sentiments, and we look forward to working with the opposition in crafting an adequate response to deliver an effective disciplinary system to the ADF. I welcome that cooperation.

I note the comments of the member for Herbert about the FMC. I cannot pre-empt what solution we will come to for this matter, but we look forward to working through the options. At the end of the day I recall the comments of the member for Cowan, when he highlighted that whatever justice system is consequent upon our deliberations must be able to operate in a field environment. It must be able to deal with the particular needs of the Australian Defence Force in its unique circumstances and its unique operating environments. I am sure the opposition shares that sentiment.

I conclude by thanking the Defence legal officers, who have responded magnificently in producing these interim measures. No doubt there are also many hard hours of work ahead of them in working with us to provide a solution to this difficult situation. I thank them for their support and commend this package of bills to the House.

Question agreed to.

Bill read a second time.

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