Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Veterans' Affairs and Defence Personnel) Share this | Hansard source

[by video link] I'm pleased to speak on the Defence Legislation (Discipline Reform) Bill 2021. At the outset, I say Labor will be supporting the legislation in the House today. The bill is aimed at reforming the system of military discipline for those who serve in the Australian Defence Force by improving the way discipline officers and summary authorities operate under the current legislation, the Defence Force Discipline Act 1982.

To defend Australia and our national interest, we must maintain a Defence Force that demonstrates high levels of professionalism, competence, commitment and discipline. On this, Labor agrees with the government. The women and men who join the Australian Defence Force are subject to military law, in addition to civilian law, which has its own discipline system and capacity to impose punishments and orders under the Defence Force Discipline Act. The act provides a comprehensive system of military discipline that must be trusted by the Australian people and, most importantly, by those who serve in the ADF. And it must be trusted to be applied fairly and effectively in all circumstances. The system of discipline administered by the ADF must encourage the men and women of the ADF to be accountable for their actions, and, importantly, to learn and grow from any mistakes made.

As the people in our Defence Force work and live with one another, and within teams, they have a reasonable expectation that any wrongdoing or breach of discipline will be dealt with quickly and fairly. Failure to do so would put the lives of others at risk, it erodes morale and it adversely impacts unit cohesion and fighting capability. Military service and the need to maintain discipline places constraints and responsibilities on the people of our Defence Force. These challenges are unique and experienced by few others of their fellow Australians. A separate system on military discipline is therefore essential to enable the Defence Force to deal with matters that relate directly to discipline, morale and operational capability.

It's in this context of a disciplined fighting force that, in some cases, breaches of military discipline by people in our Defence Force are dealt with more severely than would otherwise be the case if civilians engaged in similar conduct. The military discipline system operates in Australia and overseas in all times and in all circumstances. Enforcing military discipline is essential at all times, both in training for operations and during conflict in often difficult and dangerous circumstances. Those in the ADF are legally bound to follow up all lawful commands, including orders that involve considerable risk to their own lives and the lives of others, or may require them to use lethal force against an enemy.

The military discipline system administered under the Defence Force Discipline Act has three tiers, and it's important that I outline what they are. At the lowest level is the disciplinary infringement scheme, which enables minor breaches of discipline to be dealt with by the issuing of an infringement notice. A person can admit the breach of discipline—in other words, basically plead guilty—and be dealt with by a discipline officer, who may impose a low-level punishment, such as a fine or a reprimand. It has some similarities with the public understanding of what a very minor traffic offence would be: you accept the ticket and pay the fine, or you can choose to contest the matter in court. At least 80 per cent of all matters are dealt with in this way, with the person accepting and agreeing with the infringement and copping the penalty.

The second tier is the summary system. This comprises of subordinate summary authorities, commanding officers and superior summary authorities. These proceedings are adversarial in nature, with criminal law-like procedures in the disciplinary infringement scheme, and are not administered by legally trained personnel. It is this tier that is being collapsed and done away with by this bill. At the highest level are the superior tribunals. These comprise of Defence Force magistrates who strictly deal with court martials, which deal with more serious matters and apply criminal law proceedings—for example, if you were being charged with common assault.

As early as 1989, the Defence Force Discipline Legislation board of review, chaired by the Hon. Xavier Connor AO, QC, reviewed the operation of the newly enacted Defence Force Discipline Act on behalf of parliament. He observed: 'For the most part, service discipline, particularly as administered by summary authorities, has to do with matters which do not contain any element of criminality and which would not constitute an "offence" under civil law. Many of them are of quite a minor nature and probably in more than 90 per cent of these the facts are not in dispute.' These matters referred to by the review board range from actions such as those relating to operations against an enemy force, not attending duty on time, the unauthorised discharge of a weapon and having dirty boots on parade. Discipline lies at the heart of the service in any defence force. In 2005 a Senate committee commented on changes within the Australian Defence Force military discipline scheme and noted:

Military command is in many ways defined by obedience and conformity. Discipline is, along with leadership, a crucial underpinning of command.

In fact, it was the then Labor opposition that initiated this inquiry to deal with evidence from the ADF and their families about military justice systems.

The broader context of this bill is important, because the Australian Defence Force commanders have a duty of care to all people under their command whether at home in Australia or deployed overseas. And the priorities are not just about maintaining discipline; equally important is the welfare of those sailors, soldiers and aviators who serve in the ADF. By simplifying the discipline procedures, the time required to resolve commonly occurring minor breaches of military discipline could be significantly reduced. This would ease the stress on all those involved in any disciplinary action process.

There was a 2017 review, directed by the Chief of Defence Force, which found some aspects of the current system, which is being amended by this bill, were, indeed, overly complex and difficult to use. The review found in particular that summary discipline matters were often taking too long to resolve and adversely impacting the person accused of wrongdoing. Details in these matters were often complex, but there were delays in resolving breaches of military discipline which affected morale and the potential safety of other people, the review found. Many senior non-commissioned officers and junior officers were reluctant to use the scheme—that is, the adversarial scheme, the summary authority scheme. There was a lack of confidence in applying and understanding the complex court-like requirements of these adversarial summary proceedings. In consequence, the use of the summary discipline system was in constant and consistent decline. The review concluded the operation of the summary discipline system had proved problematic in recent conflicts, that the nature of modern warfare had changed since 1985 and that the Defence Force had been deployed in smaller Australian formations, often with independent units or embedded with allies frequently far from administrative support, which would allow the kind of adversarial-style summary authority systems to operate. The review found the complexities of the summary discipline system, particularly given the frequency, nature and length of overseas operations, often resulted in unacceptable delays in resolving or finalising breaches of military discipline. Given this feedback, Labor understands why the government has brought this on, but we can't understand why it's taken them four years if they think it's necessary.

Under the bill, we note, more serious offending would continue to be dealt with by a superior military tribunal or referred to civilian authorities as appropriate, and Labor thinks that is appropriate.

The bill reforms the discipline system in three ways, and it's important that I outline what they are. Schedule 1 will expand the operation of the highly regarded and effective disciplinary infringement scheme. The changes will allow a range of minor breaches of discipline to be dealt with more quickly and fairly with less formality within the disciplinary infringement scheme rather than more complex and adversarial service tribunal processes. Defence thinks this means that about 90 per cent of matters will be dealt with in this way. This will introduce a new senior discipline officer position, creating a new two-tiered discipline infringement scheme. We note the bill preserves the right of anyone facing a disciplinary infringement to make an informed decision whether to choose to have their matter dealt with under a disciplinary infringement scheme and appear before a discipline officer or a senior discipline officer in a non-adversarial process.

Schedule 2 would modernise the discipline system structure and reduce its complexity by removing the subordinate summary authority, and realigns the rank and the punishment jurisdiction of summary authorities, ensuring the logical progression in terms of the rank of the accused person, the seriousness of the breach of military discipline, the level of punishment that may be imposed and the seniority of the summary authority.

Schedule 3 further reforms the military discipline scheme and introduces some new service offences which modernise, and I think are good outcomes. These relate to cyberbullying, the receipt of a benefit or allowance and the failure to perform a duty or activity. Cyberbullying conduct is corrosive to discipline not just in military life but also in a civilian workplace. It can have an adverse impact on the mental wellbeing of its victims. The new cyberbullying service offence would send a very strong message to those in the ADF that the use of social media to cyberbully another person is unacceptable and will not be tolerated in the ADF. The intention of this new service offence is to enable Defence to protect victims of cyberbullying through early intervention and put a stop to the cyberbullying behaviour before it gets out of hand. It will protect people who choose to serve in the ADF.

Current safeguards for people accused of breaching military discipline will remain. Crucially, under the disciplinary infringement scheme, a person must choose to be dealt with by a discipline officer or a senior discipline officer. Labor acknowledges there are some additional safeguards in the bill, such as the requirement for any reasonable excuse to be considered before issuing a disciplinary infringement notice and the ability of a discipline officer or a senior discipline officer to dismiss an infringement if the officer considers the person has a reasonable excuse for committing the infringement. Punishments imposed by a senior discipline officer must be reviewed by a commanding officer—a review process. Labor thinks that's a good idea. On review, a commanding officer will have the power to confirm a punishment decision, substitute a punishment decision with a reduced punishment or no punishment or decide that the discipline infringement be dismissed with no punishment imposed.

It's not clear to us whether the changes are strictly necessary, and there has been little or no consultation to date with legal experts or the wider defence community. The bill was introduced four years after the review. The question is why. At the same time, it's important to ensure we're getting right the balance between administrative efficiency and operational effectiveness on the one hand and fairness, the preservation of legal rights and access to justice for ADF personnel on the other hand.

In particular, the minister has not provided a compelling explanation or concrete evidence of exactly how the amendments in the bill will enhance the ADF's operational effectiveness. In addition, Labor is concerned that, under the proposed changes, ADF members must choose to deal with an infringement scheme. The government expects, as I said, up to 90 per cent more matters will be dealt with this way. Further, the adversarial procedures, simplified rules of evidence and the Criminal Code 1995 provisions that apply to summary authority proceedings will not apply to the new disciplinary infringement scheme. Labor's view is that any changes should not remove rights and should be broadly consistent with what applies in the upper levels of military justice systems and civilian courts.

Ultimately, Labor wants to ensure that military justice competently balances the following twin objectives. First, it must ensure that the ADF's operational needs for effective and efficient discipline are met. Second, it must uphold objective and independent standards of justice that the public has confidence in, protect the rights of ADF personnel and ensure their treatment. These are the principles that would guide an Albanese Labor government, and we would continue to look at the process of reform to ensure military justice is fair and effective. To that end, Labor has referred this bill to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry to ensure proper scrutiny and stakeholder consultation and to help clarify the consequences of these substantial amendments. We are not confident that the government has consulted wisely or widely on this bill. We will come to a final decision when the legislation is brought into the Senate and once we see the outcome of the inquiry. I encourage everyone who may be interested in this bill to make a submission to the Senate inquiry.

In the meantime, we won't stand in the way of this bill in the House of Representatives. We won't oppose it. We believe that the vast majority of defence personnel serve and have served our country with distinction. We thank them for their service and we thank their families for giving their loved ones to the ADF to serve on behalf of our country and our community.

The ADF personnel deserve a justice system that treats them fairly. We ask a lot of them, and we expect that the justice system that deals with them is a fair one, does not derogate from their rights, and makes sure that operational efficiency and mission effectiveness still operate so that our ADF personnel can do all that we ask of them. In these circumstances, Labor will not oppose this bill in the House of Representatives, and we commend it to the chamber.

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