Greg Combet (Charlton, Australian Labor Party, Parliamentary Secretary for Defence Procurement) Share this | Hansard source

I wish to speak in support of the Defence Legislation Amendment Bill 2008. The substance of the bill provides for further reforms to Australia’s military justice system. It may be recalled, as the previous member indicated, that the bill was introduced in parliament before the last election. The bill is substantially the same, except for a number of changes to the evidentiary framework that applies to summary proceedings, following recommendations from the Senate Standing Committee on Foreign Affairs, Defence and Trade report that originally proposed the bill.

Whilst in my role as Parliamentary Secretary for Defence Procurement I have no direct responsibility for the operation of the military justice system, I certainly have an interest in its effectiveness and note the importance of such a system for our Defence Force. I would like to begin by outlining the importance of a strong, fair and effective military justice system and also outlining some of the history to the reforms contained within the bill before I address its substantive provisions.

As Australians we expect our legal system to be strong but fair. One of the guiding principles within our democratic system is the tradition of the rule of law. While this concept has been the subject of abuse and misinterpretation, the rule of law basically refers to the principle that no one person is above the law. It is valuable to consider how this applies to the actions of government. Accepting that no one person or entity is above the law necessarily prescribes the action a government can take against an individual. The rule of law provides the principle that the power of a government and its authority can only legitimately be exercised within a framework of written and publicly disclosed laws which are adopted and enforced in accordance with established procedures—that is, they are enforceable by due process.

This principle places a necessary limitation on the arbitrary action a government can take against its citizens—it provides for an individual’s rights. This is a key defining principle of our legal system but one that we can often take for granted. However it is imperative that public officials and those who advocate on behalf of others keep in mind the importance of this principle in the conduct of their roles. I have learnt from my time in public service that Australians demand and expect an appreciation of the rule of law underpinned by a strong sense of giving people a fair go. They therefore expect to see their public institutions pay adherence to these principles in the conduct of their roles and responsibilities. This expectation of the Australian public extends of course to one of our most important institutions: namely, the Australian Defence Force.

The ADF is an institution that exercises governmental authority and power. The ADF and their leaders are very aware of the expectations upon them and they are acutely aware of the importance of the rule of law and due process. They have seen, in conflicts around the world, the problems that have arisen when such principles are not adhered to. They also take great pride in the principles and values of our democratic system of government—values, of course, that they are serving to protect.

In order for the public to continue to have high regard and faith in the ADF as an institution, the military justice system that governs it must be seen as principal. It is therefore vitally important that our military justice system is seen to be adhering to these values and to be a strong, effective and fair system. The bill is part of a series of reforms to that system of military justice designed to help ensure the continuation of public faith in its exercise.

Whilst recognising the importance of the rights of an individual and the rule of law, it should also be acknowledged that the military justice system is required to operate in quite unique circumstances. Given the nature of ADF operations and the importance of a high level of discipline to the success of these operations, it should be recognised that at times a stricter form of punishment may be required for an offence which in the civilian world would not seem to warrant such a severe punishment. It is also an element of our justice system that is required to operate both within and outside of Australia in times of war and peace. None of this is to suggest that this is an excuse for an unfair justice system that does not accord an individual adequate rights—it certainly is not. Instead, though, we need to recognise that there are unique characteristics that are part of our military justice system which must be acknowledged and considered by the government in its formulation of reforms. I believe that the reforms contained within this bill and those that have preceded it help to strike the right balance in that regard.

Australia’s military justice system has two distinct but interrelated elements: the discipline system and the administration system. The discipline system provides for the investigation and prosecution of offences committed under the Defence Force Discipline Act. Offences dealt with under the discipline system can come under three categories. The first category covers offences peculiar to the defence forces, such as absence without leave, disobedience of a command and endangering morale. The second category under the discipline system covers offences similar or identical to civil offences but that relate to service personnel or equipment, such as assault of a superior or subordinate, destruction or damage of service property, or dealing in narcotic goods on a base. The third category covers offences imported from civilian criminal law, such as murder, manslaughter and theft of non-service property.

The first two categories that I have just outlined are offences that relate specifically to the military and the third category is an incorporation of civilian criminal offences into the military justice system. The need for this incorporation comes from a recognition that these offences may occur when an ADF member is deployed overseas, in which case there may be an inadequate criminal law framework or the application of that country’s law may be undesirable by our standards—an example is the application of the death penalty.

The second element of Australia’s military justice system is the administrative component. The administrative system deals with the decisions and processes associated with control and administration of the ADF. It is designed to encourage service personnel to maintain high standards of professional judgement, command and leadership. The administrative system broadly comprises an inquiry system, adverse administrative action in response to a member’s conduct, and internal and external review processes. The bill relates to the operation of elements of the discipline system that I have just outlined.

Over the past decade there have been a number of inquiries into the military justice system following some high-profile cases which demonstrated some deficiencies with the system. Each of these inquiries identified flaws in the system and its related processes. However, it was a Senate inquiry that really started the impetus to a strong reform program.

In October 2003, the Senate referred the issue of military justice to the Senate Foreign Affairs, Defence and Trade References Committee. The committee was instructed to inquire and report on the effectiveness of the military justice system in a number of areas. These included: determining whether the system provided impartial, rigorous and fair outcomes for ADF members; mechanisms to improve transparency and public accountability of military justice procedures; allegations of the mistreatment of ADF members and of drug abuse; and the handling of peacetime deaths in the ADF from any cause.

The findings of the committee were of great concern. The Senate committee, among other findings within the report, concluded the following: the ADF was manifestly incapable of adequately performing its investigatory function; boards of inquiry were lacking in transparency and independence; processes of investigation and trial were found to have placed great stress on individuals, leading to a loss of confidence, loss of employment, suicidal thoughts and attempted and actual suicides; and ADF members were reluctant to lodge complaints because they doubted the effectiveness and impartiality of the system. They were findings of obvious significance and concern from the Senate committee. Broadly, the committee reached a conclusion that major change was needed to ensure the independence and impartiality of the military justice system.

In 2005, the then government issued their response to the report, agreeing to 30 of the 40 recommendations that had been made. The recommendations that were not agreed to involved a greater civilianisation of the military justice system. Labor agreed to the government’s response at that time but noted that the agreed reforms must be effective or further action along the lines proposed by the committee would have to be considered. The Rudd government still maintains that view.

There were two areas of reform covered by the then government’s response to the recommendations of the committee. The first involved the replacement of the Defence Force Magistrate trials with a new Australian Military Court, the appointment of an independent director of military prosecutions and a Provost Marshal ADF. The first stage of these reforms was introduced by legislation in 2006. This included the establishment of an Australian Military Court which came into effect on 1 October 2007. It was a significant reform. The second involved a number of reforms associated with the administrative system itself. The majority of these reforms are now in place and their progress is being updated in regular six-monthly reports back to the Senate committee.

The bill deals with some of the final reforms that were intended following the committee’s reports. I would now like to summarise some of the major provisions of the bill. Firstly, the bill seeks to simplify and redesign the summary discipline proceedings. The summary discipline system is designed to deal with offences of a less serious nature quickly and efficiently. This helps commanders in the field maintain discipline and morale among their troops and it can be used on a daily basis to help ensure the welfare and safety of ADF members. The Rudd government is of the view that the summary discipline system, given its importance, must be efficient, simple and fair. Given that its operation is conducted by officers who have no formal legal training, it is important to make it as easy as it can be for it to be applied while still maintaining the rights of the individual.

This has been the basis for the government’s proposed reforms within this bill. The bill basically contains four major changes to this system. The first of these is the introduction of a right in all cases to appeal a summary authority conviction, order or punishment to a military judge of the Australian Military Court. This meets one of the Senate committee’s important recommendations allowing for the introduction of a right to appeal summary decisions before an independent permanent military court. It is schedule 2 of the bill that will give effect to these reforms. In practice, it will allow for a statutorily independent military judge of the Australian Military Court to deal with an appeal on its merits by way of a fresh trial or a paper review of the evidence. If the appeal is upheld, the judge may substitute or quash the conviction; order a new trial; or confirm, quash or vary the punishment given.

The second change is to allow a right to elect trial by a military judge of the Australian Military Court for all but a limited numbers of offences. Again, this serves to address the concerns of the Senate committee. The provisions that give effect to this change are contained in schedule 1 of the bill. For all but the most minor offences, ADF personnel will now have this right. For those minor offences where no right to elect a trial is present, there will be a limitation on the forms of punishment that can be given. If a variance to these forms of punishment is considered, the right to elect a trial under the Australian Military Court must also be offered.

The third change involves the introduction of a revised evidence framework for the conduct of these proceedings. When this bill was introduced before the lapse of the last parliament these changes were not contained and were recommended by the Senate committee that reviewed the legislation. The Rudd government has made these changes in recognition of the need for rules of natural justice and the desire to apply fundamental evidentiary principles to these proceedings. These changes are outlined in schedule 3 of the bill.

The fourth area of changes covers a number of significant reforms to the review process for summary convictions, which are covered under schedule 4 of the bill. These include an obligation on reviewing authorities to recommend appeals to the Australian Military Court, where substantive errors are identified, and a new mechanism for correcting technical errors. These are considered and measured reforms that will have a great impact on the operation of the summary discipline system. They will help maintain the need for a simple and effective system while also providing for the strengthening of an individual’s rights.

The second key area of the bill follows from a review of the offences and punishments in the Defence Force Discipline Act. Schedule 5 of the bill outlines the changes to be made, which include: an expanded ability to deal with drug charges for offences committed both inside and outside of Australia by ADF and Defence civilians; making it clear that a failure to act can be as reprehensible as a wrongful commission of an act for some areas of modern military responsibilities; reinforcement of the need for a high standard of weapons safety; and an improvement in the accuracy and fairness of sentencing by allowing more flexibility in application of punishments in line with current civilian practice and ensuring that the status of a summary conviction is of relevance for service purposes only, so as to ensure that ADF personnel are not disadvantaged in their civilian lives. These reforms collectively are designed to introduce both a new thoroughness and fairness to the operation of the Defence Force Discipline Act.

Schedules 6, 7 and 8 of the bill cover a number of other smaller proposals designed to implement earlier recommendations of reviews that have not been acted upon, the clarification of the powers of the Director of Military Prosecution and a number of administrative reforms. They were outlined by my colleague the Minister for Defence Science and Personnel during his second reading speech. He will also be outlining an amendment to the bill when he speaks in due course. All of these are designed to provide clarification, to improve and streamline the operation of our military justice system.

I would like to conclude today by expanding on my earlier arguments on why these reforms to our military justice system are so important. You will recall that I earlier referred to the relationship between the public’s requirement that our institutions of government act in accordance with the rule of law and accord to an individual adequate rights. This of course remains the core reason for these reforms but, apart from that, I believe there are also two compelling reasons that these changes are needed—one is strategic and the other moral.

The strategic reason relates to the challenge posed by the government’s need to increase levels of recruitment and retention in the ADF. This will obviously be influenced by the public perception of the military justice system and the sense of security an individual will receive by knowing that their rights are protected within the workplace. Without a strong and fair military justice system there would be no chance of the government meeting the challenges in recruitment and retention in the ADF that it now faces.

The moral reason is quite simple: it is the government which sends the young men and women of the ADF overseas, often into dangerous situations. If the government is prepared to do this, it must also be prepared to provide them with the rights and the system of justice they deserve. We have all seen the examples of things that go wrong and when the system is not working properly; therefore, I believe we have a strong moral obligation to extend all of our efforts to ensure that these incidents do not occur again and that there is a fair system of rights.

I commend the bill and believe that it, and the reforms that have preceded it, will help to make a real difference in our efforts to achieve a strong, fair and effective military justice system.

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