Bob Baldwin (Paterson, Liberal Party, Shadow Minister Assisting the Shadow Minister for Defence) Share this | Hansard source

From the outset, let me say that the opposition supports the Defence Legislation Amendment Bill 2008. The bill introduces far-reaching reforms to the ADF summary discipline system, stemming from the former coalition government’s response to the 2005 report of the Senate Foreign Affairs, Defence and Trade References Committee entitled The effectiveness of Australia’s military justice system. This bill amends the Defence Act 1903, the Defence Force Discipline Act 1982, or the DFDA, and the Defence Force Discipline Appeals Act 1955, or the DFDAA, to simplify and redesign summary discipline procedures and represents one of the widest ranging reforms to the Australian Defence Force summary discipline system since the introduction of the Defence Force Discipline Act.

The Howard government first introduced these amendments last year, but the 2007 amendment bill lapsed when parliament was prorogued. This bill includes measures included in the 2007 bill and also the amendment flagged by Bruce Billson MP in the second reading speech on the Howard government’s bill last year responding to the concerns of the Senate committee that examined the bill—chaired at the time by Liberal Senator for New South Wales Marise Payne—regarding the simplified rules of evidence at a summary trial. There is bipartisan support and cooperation on military justice reforms, and the coalition remain committed to ensuring these reforms are adopted and, more importantly, successful—consistent with our response in government to the recommendations of the Senate committee’s 2005 report. This bill, consistent with that proposed by the former government, aims at ensuring an appropriate balance between the maintenance of discipline and the protection of the rights of Australian Defence Force members.

The bill’s key amendments include enhancing the summary procedures by introducing a number of significant safeguards, such as an automatic right of appeal to the new Australian Military Court for summary trials, while still enabling commanders to maintain effective discipline and recognising the need for time lines and fairness to protect the rights of the individual. Currently, an ADF member has no mechanism to appeal to a court martial or a Defence Force magistrate with regard to a conviction or punishment imposed by a summary authority. This bill enacts one of the recommendations of the 2005 Senate report by introducing the right of appeal from a summary authority to a single military judge of the Australian Military Court. It was argued in the 2005 report that service personnel should have this right for charges that would potentially lead to a criminal record or affect them post military service.

Another key amendment is the right to elect trial by a military judge of the Australian Military Court for most disciplinary offences. This amendment again stems from the 2005 report and is similar to the Canadian armed forces summary disciplinary system.

Further, amendments relating to the simplified rules of evidence are significant. The evidence regime currently applicable to summary trials is overly complex and not easy to apply by persons without formal legal training. The bill will make it clear that a summary authority will not be subject to the same formal rules of evidence that apply to the Australian Military Court but must not depart from the fundamental principles underpinning the rules of evidence. The new evidentiary framework is based on the successful system which has been used for many years by the Canadian forces.

Further amendments include: a form of review for technical errors related to the awarding of punishments and orders; simplification of offences and punishments; and changed jurisdictions of superior summary authorities and discipline orders.

When the 2007 bill was examined by the Senate committee it was welcomed and endorsed by Army, Navy and RAAF as well as the then Acting Chief of the Defence Force. Given the defence forces expressed their belief that these amendments struck the right balance, we welcome its consideration. In offering our support the coalition call on the government to monitor and review the impact of these reforms to ensure that they are working as envisaged and have no unintended consequences on ADF personnel, particularly in relation to the rules of evidence.

In keeping with the previous examination of such issues the coalition believe that a review by the Senate Standing Committee on Foreign Affairs, Defence and Trade should be considered. Furthermore, last year the then shadow minister Alan Griffin expressed his view that Labor believed there were still a number of reforms to the military justice system they would pursue. The coalition calls on the Labor government to continue in the same manner as the coalition in government and ensure that any changes involve extensive consultation amongst stakeholders, particularly within the ADF, as well as to commit to extensive scrutiny in the parliament.

Given the bills introduce a number of significant enhancements to ensure the right balance is struck between maintaining effective discipline and protecting the rights of individuals, the coalition, as it did in government, commends this bill to the chamber.

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