Bruce Billson (Dunkley, Liberal Party, Minister Assisting the Minister for Defence) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

In October 2005, in tabling the Howard government response to the 2005 Senate report into the effectiveness of Australia’s military justice system, the Minister for Defence, Senator Robert Hill, highlighted that the Australian Defence Force does a truly magnificent job in defending this nation and its interests. The government also said that it was committed to providing the best equipment and conditions of service necessary to ensure that the ADF is a modern fighting force and that, hand in hand with this, is a determination to provide a military justice system that is as effective and fair as possible.

The government continues to express its admiration and appreciation for our defence personnel and the important, challenging and often dangerous activities they undertake, both here in Australia and in overseas operations.

The government also remains committed to enhancing our military justice system to address the concerns of defence personnel, the parliament and the community, through the timely implementation of the objectives outlined in its response of October last year. This bill, to create a permanent Military Court, is an important step in that implementation program, and the enhancements it provides will further increase confidence in the military justice system among those it serves.

Discipline is clearly fundamental to an effective military force, but it must be tempered with a concern and consideration for individuals and their rights. The changes contained in this bill are a significant step in establishing the balance between discipline and the rights of individuals, which is the key to achieving operational effectiveness and success.

The primary measure of this bill is the establishment of a permanent military court, to be known as the Australian Military Court. The Australian Military Court will be independent of the chain of command, and will replace the current system of individually convened trial by courts martial or Defence Force magistrate. This new military court will be established under the Defence Force Discipline Act.

The Australian Military Court will give members of the ADF an impartial and judicially independent court. Military judges will be statutory appointments and they will have security of tenure—five-year fixed terms with a possible renewal of between three and five years where it is deemed necessary to meet the operational requirements of the court—and remuneration set by the Commonwealth Remuneration Tribunal. During the period of their appointment, the military judges will not be eligible for promotion, to further strengthen their independence from the chain of command. The Australian Military Court will include a Chief Military Judge and two permanent military judges, with a part-time reserve panel. The panel of military judges will be selected from any of the available qualified full- or part-time legal officers and appointed by the minister. The court will be provided with appropriate paralegal support for it to function independently from the chain of command. In meeting all the requirements of military justice, the court will include options for the military judges to sit alone or, in more serious cases, with a military jury.

In order to meet its military purpose, the Australian Military Court will be fully deployable, able to sit in theatre and on operations. A principal factor of the Australian Military Court is its preparedness and ability to sit in an operational environment. This requires not only the necessary qualifications to perform the ‘judicial’ functions of a military judge, but also those necessary to satisfy the medical, training and physical fitness requirements of a deployable military court.

The bill also restructures the existing military offences in a new concept of class 1, 2 and 3 offences. The more serious military offences will be class 1 offences.

It is intended that offences will be dealt with either by a military judge alone or by military judge and military jury. In some cases, the latter will be mandatory—for class 1 offences.

Trial by military judge and jury may also occur in respect of class 2 offences, except where the accused elects to be tried by military judge alone. The accused may opt for trial by military judge alone in certain circumstances. However, whichever mode of trial, it is intended that a military judge will determine the sentence.

For a class 3 offence, while the default position for trial will be by military judge alone, the accused may elect to be tried by a military judge and jury. If the accused does make such an election, the military judge will retain full powers of punishment.

A trial by military judge and jury will be akin to a trial by court martial and a trial by military judge alone will be akin to a trial by a Defence Force magistrate.

All class 1, 2 and 3 offences are outlined in the bill and replicate the current offences in the Defence Force Discipline Act.

In establishing the Australian Military Court, consequential amendments will also be required to Defence and other portfolio legislation to replace the court martial and Defence Force magistrate trial system with that of the new Australian Military Court.

Appeals will be available from the Australian Military Court to the Defence Force Discipline Appeals Tribunal (under the Defence Force Discipline Appeals Act 1955). This replicates the current system of appeals from court martial or Defence Force magistrate decisions; however, it will be extended to include appeals on punishment—noting that such an appeal may result in an increased punishment.

Proceedings before the AMC are intended to reflect the unique culture and traditions of the Australian Defence Force, whilst not being unduly formal or protracted. That said, to facilitate fair and expeditious proceedings, the bill will introduce the availability of evidence via video and audio links to be accepted in the Australian Military Court.

The basic model of the evidentiary provisions of the DFDA will be retained; however, these provisions will be extended by providing for evidence by affidavit, video link, telephone or other appropriate means, similar to provisions in the Federal Court of Australia Act 1976. The intention of these provisions is to facilitate the most effective and efficient collection of evidence that will enable a fair outcome for the accused and minimal inconvenience to witnesses or parties to the proceedings.

To complete the establishment of the Australian Military Court, further provisions include:

• the stamp and seal of the Australian Military Court;
• the staff of the Australian Military Court;
• procedural matters, for example, rules of court to be made by the Chief Military Judge;
• legal representation for an accused, facilitated by the new Director of Defence Counsel Services; and
• an annual report to be prepared by the Chief Military Judge on the management and administration of the Australian Military Court.

The second measure in the bill will be to amend the Defence Act 1903, to facilitate the creation of a ‘Chief of Defence Force Commission of Inquiry’. The government agreed in its response to the Senate report that the level of independence and rigour of inquiries into ADF incidents resulting in death will be strengthened. In demonstrating that ADF inquiries into these incidents are independent of the chain of command, the government is creating a new and mandatory level of inquiry. The Chief of the Defence Force will establish a mandatory commission of inquiry for all suicides and deaths in service, and an independent civilian, with judicial experience, will be its president.

There will be a need for further amendments to the Defence Force Discipline Act, as additional parts of the government response to the report are implemented in the near future. These will include a right of appeal, on conviction or punishment, from summary authorities to a military judge of the Australian Military Court, and the right to elect trial before the Australian Military Court for certain classes of summary offences.

A modern and professional force deserves a modern and effective system of military justice. With the reforms contained in this bill, the government will provide a system that will better ensure impartial and fair outcomes and strike an effective balance between the need to ensure effective discipline within the Australian Defence Force and the need to protect individuals and their rights.

I thank and recognise the diligence and dedication of Rear Admiral Mark Bonzer and his military justice initiative implementation team. I commend the bill to the House.

Debate (on motion by Mr Griffin) adjourned.