Amanda Rishworth (Kingston, Australian Labor Party, Shadow Minister for Veterans' Affairs) Share this | Hansard source

Today I rise to speak on the Defence Legislation Amendment Bill 2018. I'd like to start by acknowledging all those men and women who serve in our defence forces around Australia. We talk a lot about the assets—the submarines and ships and a whole lot of different equipment—but of course our greatest defence asset is the people that serve. They put their lives on hold to serve our country, and they deserve our respect, gratitude and support now and into the future. It is also important to recognise those who are no longer serving but who have served our country in the past.

The bill before us today seeks to improve the transparency and independence of the military justice system, to strengthen protection for reservists and to clean up some redundant provisions. Schedule 1 particularly deals with military justice and seeks to enhance the independence of judge advocates and provide greater transparency in their selection and termination.

Judge advocates are senior military legal officers appointed by the Chief of the Defence Force, or service chief, following a nomination by the Judge Advocate General. They may be appointed as the judge advocate for a court martial, assisting court martial members with the application of military law. Alternatively, they may be appointed as a Defence Force magistrate to try charges referred to the Registrar of Military Justice. These members are central to the operation of our superior service tribunals in the military justice system, and, given the importance of such roles, it is appropriate that the bill before us gives consideration to improving the independence and transparency of the selection, length of appointment, termination and remuneration of such members.

There were calls in the past for more independence for these positions. The 2016 annual report by the Judge Advocate General stated:

… the existing legislation does not provide optimal safeguards of the independence of such JA appointments: these other JA appointments are only for terms of three years, are renewable and lack the benefit of pay fixed by the Commonwealth Remuneration Tribunal.

The bill is important in addressing these issues. Under these changes, members of the judge advocate's panel will have their remuneration set by the Remuneration Tribunal, a statutory body which determines the pay of key Commonwealth officers. It is appropriate that the tribunal determines the amount of pay for judge advocates, which will enhance their independence from Defence. This bill also addresses the length of service issue noted in the 2016 report by increasing the length of service from three to five years.

It should be noted that previous Judge Advocate Generals have also called for the appointment of judge advocates to be made not by the Chief of the Defence Force but by the Governor-General-in-Council to afford them greater independence. It is important to note that this bill does not make that change. However, the opposition sees the changes in the bill as important steps in improving the independence of judge advocates, even though the CDF is still able to appoint them.

Labor has sought the views of a number of organisations, including the current Judge Advocate General, and has been advised by the government that those organisations do not oppose this bill. DFWA have also been consulted by the opposition, and they also support this bill. Therefore, we will be supporting these amendments.

In addition, there have been changes to this bill to improve the transparency of the selection criteria for judge advocates which will see the Chief of the Defence Force determine the selection criteria and the selection process for appointment to the panel via an instrument. At the moment, it is completely discretionary around these selection criteria, and so better transparency in the selection criteria and process is an important step forward. I note there were concerns raised about the fact that the selection criteria—while an important step forward in terms of transparency—do not impose a duty on the Chief of the Defence Force to determine the criteria and process for selection of judge advocates, meaning it will still rely on the willingness of the Chief of the Defence Force to utilise this provision. In addition, consideration of criteria such as diversity is discretional, as it only requires the Chief of the Defence Force to have regard to the desirability of reflecting diversity of expertise, experience and gender among the members of the panel. We understand the concerns that have been raised. However, we believe that transparency in the process of selecting judge advocates is important, so, while the change may not impose an obligation on the Chief of the Defence Force, it is still worthwhile to proceed with it.

In addition, the bill goes to transparency around termination: changes will also be made to clarify the termination provisions. Currently, there is no direct provision for the termination of judge advocates. Rather, they are subject to the same regulations as Defence personnel, which enable them to dismiss members if needed. These changes will provide for the termination of an appointment which is consistent with the standard provisions of the termination of statutory appointments. This is an important step in the right direction, ensuring that independence of the judge advocate is preserved. Concerns have been raised with regard to the termination provision in this bill as it still enables the Chief of the Defence Force to remove a judge advocate by terminating their appointment as an officer, essentially going around these termination provisions. While it's correct that this power does exist, the opposition believes that this provision will provide greater transparency around the termination of appointments than what currently exists. For that reason, we support the amendment.

Transparency matters—such as the criteria under which people are appointed, how long they are appointed for, how they are paid and how they are terminated—are important to ensure that there continues to be faith in the military justice system, and, as such, we support the changes in this schedule.

Schedule 2 will enshrine protections for reservists in the act by moving existing complaint mechanisms, investigations and mediation schemes for reservists into the principal act. Reservists are fundamental to maintaining Australia's defence capability, and help safeguard our security and national interests. Reservists provide support to the ADF, help rebuild following natural disasters, deliver humanitarian support overseas, and deploy alongside our regular ADF members in times of war. They are vital to our capacity and it is important that they are not disadvantaged by their participation in the ADF.

Currently, Defence reservists have a number of protections to assist with their civilian employment and education, and to mitigate some of the employment and financial disadvantages some reservists can face when rendering Defence service. Schedule 2 proposes moving these protections from the regulations into the principal act, as recommended by the Senate Standing Committee for the Scrutiny of Bills. These changes will insert a new division into the act based on the complaint and mediation scheme currently in the regulations. The scheme will be simplified and improved by these changes.

Some of these changes include reducing the prescriptive provision for complaint handling and investigation, replacing them with broad discretions of the Chief of Defence Force to deal with complaints and investigations. One of these changes relates to the investigation of complaints that would give the Chief of Defence Force the power to compel civilians and employers to provide information or documents; seek a civil penalty from a relevant court if a person fails to produce the information or documents; and direct a person to attend a conference and, if the person fails to attend, seek a civil penalty.

This element has caused some concern, as it has been argued it's uncommon to give the Chief of Defence Force power over civilians during peacetime. However, the government has advised the opposition that this power already exists in regulations for this act, and there are several examples in both acts and regulations where powers exist that enable the Chief of Defence Force to compel citizens during peacetime. These include the Defence (Inquiry) Regulations 2018, which compel both civilians and military members to provide documents or things that are relevant to inquiries; and section 86 of the Defence Act 2003, which can apply penalties if people fail to appear as required by a summons under the Defence Force Discipline Act 1928. In addition, the government has advised that this provision is for the Chief of Defence Force to exercise a statutory power and is not a use of his command executive powers that would give rise to any constitutional or other concern.

It is because of these assurances that Labor supports this element of the bill that moves regulations into the principal act. As a consequence of moving these provisions into the act itself, a number of the regulations will become redundant. Most of these are due to sunset later this year, but two of the regulations that are not moving into the act will need to be remade. These two remaining regulations deal with financial arrangements.

In addition, the amendments in this schedule will also require the Chief of Defence Force to prepare a report in relation to the administration operation of the act for inclusion in the Defence annual report. This is an important addition. Given the significance of the role our reservists play and the importance of the regulations that enable their participation, it is appropriate that this act be reviewed annually and a report be made public. I understand the Defence Reserves Association is in support of these changes and gives assurance around broader issues that have been provided by the government. Under those circumstances, Labor offers support to this schedule.

I would like to thank both the Australian Defence service associations and the Defence reservists for their examination and independent feedback of the proposed changes. In addition, I would like to acknowledge the assurances provided by the government in relation to judge advocates and the use of powers to compel civilians by the Chief of Defence Force which enable us to support this bill.

In closing, I will end where I started. I would like to thank all of those who serve our country. The service provided by approximately 83,700 members of the ADF and reservists, and all those family members who stand by them, is fundamental to the protection of our country and is appreciated by all of those in this place. I commend the bill to the House.

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