Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

To the member for Fadden, at this stage the jury is still out. We will pass judgment on him a little later on. I rise to support the Defence Legislation Amendment Bill 2008. As has been said, this legislation comes about because of the dissolution of the House in 2007. The amendment represents what is considered to be a key and necessary stage in the reform of matters to do with the military justice system within our Australian Defence Force. The bill provides for the implementation of a new system by which grievances of a military nature can be heard within the military justice system and where military and other related breaches can be properly aired and swiftly dealt with.

Under the previous government there were no fewer than six separate reviews of matters relating to the broad theme of military justice. These reviews included two inquiries by the Joint Standing Committee on Foreign Affairs, Defence and Trade, in 1999 and 2001. Those inquiries were preceded by a report by Justice Abadee in 1997 and one by the Ombudsman in 1998. There was also a report—which my colleague the member for Fadden just mentioned—by the WA coroner in respect of the fatal fire on HMAS Westralia, and another report written by Mr Burchett QC in 2001.

But the catalyst for action came in May 2005, following the recommendations tabled in the Senate by the Senate Foreign Affairs, Defence and Trade References Committee after its inquiry into the effectiveness of Australia’s military justice system, which found serious shortcomings within the military justice system and further highlights the fact that the proposed legislation introduced here today is, quite frankly, overdue. The recommendations essentially covered two broad themes. The first was the replacement of the old system of court martial and Defence Force magistrate trials by a new Australian Military Court, retaining the existing right of appeal to the Defence Force Discipline Appeal Tribunal, an independent Director of Military Prosecution and the Provost Marshal ADF. The second was the major reform of the administrative system through which grievances are in fact handled. The majority of these reforms are now in place and appear to be operating satisfactorily, as regular six-monthly reports to the Senate committee indicate. On that point: all these reforms, including those introduced by this bill, are also subject to six-monthly reporting to the Senate committee.

The bill also provides implementation of the final links between the new summary discipline system, which is part of the military justice system, where many breaches of military discipline are first dealt with, as well as a number of other related matters. In 2005, when the previous government responded to the Senate committee inquiry, Labor in opposition did not accept all those recommendations. However, we gave conditional support to the bill at that stage and indicated that we would certainly be reserving our decision in relation to evidence in particular. Labor had a strong position on the evidentiary provisions, the rules of evidence, as they would apply to military justice. Our attitude has remained the same; hence, some of the provisions of the bill before the chamber reflect that very same attitude to the principles of military justice to which we previously referred when this matter was originally raised in the House.

Last September, the Senate Standing Committee on Foreign Affairs, Defence and Trade, in its report on the bill, expressed reservations about the provisions of the bill governing the application of the rules of evidence in proceedings before a military summary authority. The Rudd government does not believe that the previous government’s response to the committee’s recommendations on the matter was sufficient; hence, this new bill includes a provision to strengthen the rules of natural justice and the basic principles of the rules of evidence relating to relevance, weight and reliability, with those to be applied by any military summary authority. As a result, the government has through this bill strengthened the application of the rules of evidence. The government is committed to continuing the reform of the military discipline system to address the concerns of defence personnel, the parliament and, to some extent—probably to a large extent—the community generally.

It is not only fair that the changes intended to be made represent a balance and the maintenance of effective discipline but also very important that there is proper protection for those individuals who are subject to the military justice system. I think that point was made very effectively by the member for Fadden when he spoke on this bill. The bill introduces another element of military justice which reflects the inherent fairness of the civilian processes of justice but in a way that recognises reality as it applies to military discipline and ensures that it is applied fairly and efficiently and can be done so in the field. It also recognises that ADF operations are to some extent quite unique, requiring a far greater level of regulation than would normally be encountered in employment. The demands and the role of a military force require that our people working in such areas of conflict are able to effectively administer discipline efficiently and in a timely manner, but it must be done fairly. I think that is the point that has been made constantly as people support this particular bill.

The Rudd government, in recognising the need for additional constraints to these standards, believes that the military discipline procedures that accompany military justice must be timely, impartial and fair for all ADF members, and must be seen to be so by the Australian people as a whole. We know that commanders, particularly commanders in the field, bear great responsibility. Their role may require them to use lethal force. These commanders are required to ensure that this lethal force is used lawfully and to do this requires discipline. Discipline is the cornerstone of the ADF. It is the cornerstone of most military forces. That is certainly what is recognised in the Defence Force Discipline Act 1982.

In particular there is the summary discipline system, which is subject to this bill. The summary discipline system enables the timely dispensing of discipline with a view to maintaining not only discipline but also morale. The balance between discipline and the rights of individuals is key to achieving the operational effectiveness and the success that a nation expects of its military force. It is this balance that produces a defence force that can wield lethal force while reflecting not only the values of our nation in complying with our international obligations but also, to put it in lay terms, our position in relation to a fair go. The Australian Defence Force summary discipline system forms part of the military justice system, which, taken as a whole, must provide the safeguards necessary to protect the interests and rights of individual members of the ADF.

What this bill does is ensure the fairness and rigour of the military justice system through a number of means: simplifying and redesigning the summary discipline procedures, simplifying the rules of evidence as they apply, providing the right of appeal from a summary authority to a new Australian Military Court and the right to trial by the Australian Military College instead of a summary authority, and providing a review of summary proceedings. These are very important provisions to ensure that fairness and transparency operate in the way we administer our military justice. This is not about hindering the application of justice within our military service; it is not about constraining or imposing greater responsibilities upon commanders, whether it be in country or in periods of conflict overseas; it is about ensuring that it is conscious in the minds of all of those responsible for others that fairness and decency must be applied in the way we apply ourselves and judge one another in administering justice.

This bill is to ensure that the men and women of the Australian armed forces are provided with the necessary recognition under a system that presumes innocence, although it does take into acc-ount the unique nature of the military force where discipline must be administered swiftly, in a timely manner and often in the field. As a consequence of that, we recognise that there are two main aspects to this bill. Apart from military justice, we are certainly cognisant of the fact that this goes to the maintenance of morale and the rights of men and women of the Australian military forces in how they appear and are judged before an Australian military court. The matters subject to this bill are included in a review by the Senate committee, which will review and make recommendations on a six-monthly basis. I commend this bill to the chamber.

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