House debates
Wednesday, 19 September 2007
Defence Legislation Amendment Bill 2007
Second Reading
Debate resumed from 15 August, on motion by Mr Billson:
That this bill be now read a second time.
10:55 am
Alan Griffin (Bruce, Australian Labor Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source
It is probably the last occasion I will get to do this, Mr Acting Deputy Speaker Hatton, so I wish you all the very best in your post-parliamentary career and I look forward to keeping in touch. As much as you can enjoy this many years in opposition, I have enjoyed serving with you over that time.
Michael Hatton (Blaxland, Australian Labor Party) Share this | Link to this | Hansard source
Thank you. I have enjoyed serving with you, too.
Alan Griffin (Bruce, Australian Labor Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source
I rise today to speak on the Defence Legislation Amendment Bill 2007, which amends the Defence Act 1903 and the Defence Force Discipline Act 1902 to implement reforms to the summary discipline system. In 2003, Labor initiated a Senate inquiry to hear evidence from ADF personnel and their families about the military justice system. The current process of military justice reform is largely a result of the inquiry’s report, tabled in June 2005, the Howard government’s response to it, and other reviews thereafter. In respect of the summary justice system, the original inquiry report stated its importance to the daily operation of the ADF and criticised its lack of impartiality, which it found threatened service personnel’s rights to fair tribunals. It said:
The committee considers that reform is also needed to impart greater independence and impartiality into summary proceedings. Summary proceedings affect the highest proportion of military personnel. The current system for prosecuting summary offences, however, suffers from a greater lack of independence than courts martial and Defence Force Magistrate processes. The committee therefore recommends an expansion of the right to elect trial by court martial before the permanent military court, and the introduction of the right to appeal summary decisions before the independent permanent military court.
This bill goes some way to addressing those concerns. It represents the next stage of reform, following on from reforms such as the establishment of the Australian Military Court, due to begin on 1 October 2007, and reform to the administrative processes for the handling of grievances. The bill reforms the summary discipline system, which relates to a range of minor offences and matters affecting the operational discipline and efficiency of the services.
Labor’s view is that this bill is a step in the right direction and is supported. The bill provides some key reforms, such as establishing a right in all cases to appeal a summary authority conviction, order or punishment to a military judge of the Australian Military Court and establishing a right to elect trial by a military judge of the AMC for all but a limited number of disciplinary offences. For the remaining offences, the bill would limit available punishments, provide a right of appeal and ensure an automatic review. It also provides an automatic review by a reviewing authority of proceedings that result in conviction of a service offence.
However, while these are positive and important measures, the bill falls far short of a full response to the need for reform to the summary discipline system and, therefore, Labor’s support is not without caveat. For example, the bill seeks to simplify proceedings by allowing that the summary authority is not bound by the rules of evidence, on the justification that this will enable the more expeditious conduct of military justice. Labor supports this in principle, noting that various safeguards will complement this provision, but cautions that the devil is in the detail. We will need to scrutinise carefully the regulations once they are drafted, and monitor and review their implementation. I will come back to Labor’s concerns and, indeed, concerns raised by the Standing Committee on Foreign Affairs, Defence and Trade and the Law Council of Australia in a moment.
Labor’s approach is to ensure that the military justice system competently balances dual objectives. First, it must ensure that the ADF’s operational needs for effective and efficient discipline are met and, second, it must uphold objective and independent standards of justice that the public has confidence in. These high standards are required to protect the rights of defence personnel and ensure their fair treatment. Thus, in respect of this bill, Labor is prepared to be both principled and pragmatic. This, I believe, would be the approach of a Rudd Labor government. I refer to the explanatory memorandum of this bill, which states:
A summary discipline system, by its very nature, will not have the status, level of independence or the judicial attributes of the AMC, established by the Defence Legislation Amendment Act 2006. However, while a summary discipline system should have as many of those attributes as practicable, its primary purpose, as discussed above, is to facilitate operational effectiveness and, through the maintenance of discipline, support ADF operations. Consistent with the British and Canadian systems, the ADF summary discipline system forms one part of the military discipline system which, taken as a whole, must provide the safeguards necessary to protect the interests of ADF members. The Bill’s comprehensive system of elections and appeals in respect of summary authority proceedings provides a direct link to the statutorily independent AMC and in so doing enhances existing safeguards.
I note that the committee’s view was likewise realistic. The committee noted the need for the bill’s speedy enactment, concluding that concerns about the bill need not impede its passage, subject to an amendment to the rules of evidence provision, which the government will move today, although not in the exact form proposed by the committee.
The committee made three recommendations. The first was to strengthen the recognition of the rules of evidence by providing statutory guidance that the summary authority rules should simplify but not depart from the fundamental principles contained in the rules of evidence. This is mostly met by the government’s amendment. Labor supports the intention of this amendment, which is to reinforce the application of the fundamental principles of the rules of evidence in summary proceedings. The second recommendation was that the government comprehensively consult on any future proposed legislation that makes significant changes to the military justice system. This includes consultation with the Law Council of Australia. On this point the committee observed the need for close monitoring of the legislation and of the operation of the Australian Military Court. These are important points supported by Labor. If this government is serious about reform and about doing it well then it will take this recommendation on board. It is not in the interests of defence personnel for the government to speedily cobble together legislation and rush it through parliament without proper consideration. The third recommendation was that, subject to the first recommendation being implemented, the bill be passed.
Labor will continue to be vigilant about a range of concerns in this bill. The provision that states that the summary authority is not bound by the statutory or common-law rules of evidence is the most problematic. The government is introducing today an amending note to proposed section 146A that the summary authority must comply with the rules of natural justice and other basic principles of the rules of evidence. The Law Council understandably is concerned that this note in the bill does not go far enough. However, for now, Labor is prepared to offer careful support, noting that complex rules of evidence being carried out by often non-legally trained summary authorities is not an ideal balance of the two objectives I referred to earlier: efficient operational discipline and fairness for the individual. There are also procedural safeguards—namely, the automatic review by a reviewing officer and the right of appeal to the Military Court. Labor is committed to monitoring this issue. There will be a couple of bites at this cherry, and further down the line we will need to review how effective the simpler evidence framework has been in practice.
It has been suggested that a future reform could be to consider whether the full evidence framework should again apply upon appeal to the Military Court. I would suggest that this holds some merit. The Law Council has also expressed concern that the bill does not provide a right for the Director of Military Prosecutions to appeal an interlocutory judgement or order to the Defence Force Discipline Appeal Tribunal. Mr Willee of the Law Council has said that this is ‘a simple thing’ and would ensure procedural fairness. This proposal is also worthy of future consideration, and relevant, in light of the issues raised in August this year in the case of the senior army officer charged over the alleged loss of highly sensitive Commonwealth Games security plans. The Federal Court refused the government’s application for a declaration that would reverse an earlier ruling by a court martial judge advocate that the officer’s record of interview was inadmissible because it was conducted by civilian investigators. There is also a concern that some disciplinary offences will remain outside of the right to elect trial by the Australian Military Court.
I want to briefly discuss the committee’s findings so far on the progress of military justice reform. The second progress report, tabled on 29 March 2007, noted some progress with reform of the ADF discipline system, including the establishment of the Australian Military Court and improvements to the redress of grievance process, but criticised some continuing problems that were brought to light by reports into the ADF’s investigative capability and the learning culture in training establishments and by inquiries into the sudden deaths of Private Jacob Kovco and of Trooper Angus Lawrence. The committee’s third progress report, tabled very recently, in September 2007, found that some longstanding problems continue but allowed that these will require time to address. It also commended some progress on complaint management systems.
I flag these progress reports for two reasons. The first is to emphasise that Labor recognises that there is still much more to be done and this bill is just one step along the way. Arguably it could have gone much further. The second is to draw the House’s attention to additional comments by Labor committee members in the committee’s most recent progress report about a broader aspect of Defence Legal’s conduct that has so far escaped proper examination. The growing tendency of the Department of Defence under the Howard government has been towards protracted and expensive legal proceedings. Its litany of litigation is in disarray, and opinion is growing that the government is pursuing a vexatious approach to Defence litigation cases.
The third progress report highlights a number of cases that grossly fail the government’s own so-called common-sense test, such as the discrimination case involving the suicide of Eleanor Tibble, where the government’s cost as at 6 February 2007 had exceeded $1.24 million, or the case involving the Albany Port Authority whereby, after a long and drawn out dispute, Defence admitted liability and agreed to pay $5.25 million to the authority for the cost of removing unexploded bombs plus $1 million towards the authority’s legal costs. Justice Templeman in the Western Australian Supreme Court expressed strong concern about the Commonwealth’s conduct, noting that it was unacceptable that the Commonwealth ‘should be profligate with public funds’ rather than seeking to resolve a practical problem efficiently.
In another area, there has been some recent media attention about HMAS Melbourne cases relating to the naval collision in 1967 of the HMAS Voyager and HMAS Melbourne which killed 82 people aboard Voyager. It is considered the worst peacetime naval accident in Australia’s history. A court recently awarded a HMAS Melbourne claimant $1.24 million in damages. A firm that is currently acting for 29 plaintiffs recently estimated that the average length of trials to settle matters is seven years, and the total legal costs of these trials are between $750,000 and upwards of $2 million.
This is a significant and unacceptable budget risk and frankly an area where the government is failing to meet its responsibilities to the public as a model litigant. In February 2007, approximately 65 per cent of Defence’s litigation cases had been active for more than one year. More than 140 cases had lasted for more than five years. These cases involve such matters as asbestos litigation and F111 deseal-reseal compensation. Yet, when asked at Senate estimates in February 2007 to report on the average cost of litigating matters and the percentage of cases finalised before judgement, Defence replied that it was unable to devote the time and resources to collect this information. Surely resolving these compensation cases in a fair and timely fashion is in the public interest.
In short, Labor remains vigilant about ongoing reform to the military justice system. There is still much to be done to provide a best practice military justice system and the onus is on the ADF to implement these reforms effectively and swiftly, and to demonstrate that military justice can and will be conducted in a transparent and fair way. A Rudd Labor government would be committed to continuing this process of reform and making adjustments as the need becomes clear.
As a broader issue, Labor is concerned that Defence dispenses justice in a range of ways that impact upon the lives and wellbeing of former and serving Defence personnel. All of these processes must be open to rigorous public scrutiny. Defence personnel deserve no less; the public deserves no less.
11:08 am
Jackie Kelly (Lindsay, Liberal Party) Share this | Link to this | Hansard source
It is with great interest that I speak on the Defence Legislation Amendment Bill 2007. As a former legal officer in the defence forces I have watched a number of Defence matters now from both sides, within the military and subsequently from within the government. To give you one example, when I was first elected I was on the House of Representatives Standing Committee on Environment, Recreation and the Arts, and at that time that committee was finishing off a performance audit from the Auditor-General’s Audit report No. 31 of 1995-96, looking at the environmental management of Commonwealth land, site contamination and pollution prevention.
I had actually been working at the coalface on a number of those issues in terms of paint shops that had spilled over onto neighbouring land and various other issues where the Commonwealth could have been liable. What we wrote up as legal officers and what was eventually presented to the committee to me as a member of parliament were extraordinarily different. Obviously, in the chain of command, a lot of things happen in order to mitigate blame within the Defence Force.
The Defence Force has a culture of ‘can do’. It likes to be permanently right. It is very difficult for someone in uniform to say that an error was made, and I think the member for Bruce iterated a number of those cases where there are still some outstanding matters. In fact, one of the outstanding matters is in respect of Russell Vance. Just to give you a picture of this, I will quote from a Bulletin article from 2005:
Vance was once a high flier. The son of a distinguished naval officer, Vance did what came naturally and joined the Royal Australian Air Force as an apprentice Scientific Instrument Maker at 16. He was Apprentice of the Year, later matriculated and, at 24, proudly became a commissioned officer. His career trajectory continued steeply skywards until in 1993 he was appointed executive officer (second in command) at the RAAF’s 10 Squadron (P3C Orion base) at Butterworth, Malaysia. He soon became acting Commanding Officer.
RAAF colleagues recall Vance as a “tough bastard” and a stickler for defence rules and regulations, though honest and brutally straightforward. He could be abrasive and his style was not for the faint-hearted. But that’s why his superiors valued him. Indeed, they had sent him to Malaysia to sort out 10 Squadron, which had gained a reputation as something of a “holiday camp”.
Having served at Butterworth myself, I can say that it was not exactly a holiday camp but it certainly had a large surge capacity in terms of the work available for the people deployed there.
The extraordinary thing in the Russell Vance case was that, outside of the chain of command—coincidentally—his subordinates made a complaint to a social worker, which somehow made it to his superior officer without his knowledge and he was counselled. He took objection to that and said: ‘I don’t know what I’m being counselled for. Can I see the allegations made to the social worker?’ Lo and behold, after that tiny incident, we ended up having a board of inquiry, which at last count cost something like $6 million.
In my capacity as the squadron legal officer at air command, I remember being astounded when the fees for the legal officers exceeded $50,000. This matter went on. Even after my election, I appeared before that board of inquiry again, in 1996, and it was still ongoing years later. That high-profile case and a number of others iterated by the member for Bruce brought about the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the effectiveness of the Australian military justice system. The committee did a major inquiry, and that report was tabled in June 2005.
This government made some substantial changes to ensure the independence and effectiveness of our service tribunals. The Defence Force magistrates and the court martial systems were abolished and the Australian Military Courts were introduced. These are outside the chain of command. They have five-year appointments and there has been a real effort to get some independence into the military justice system.
This bill constitutes a second major step in restructuring those service tribunals, and it reflects the government’s commitment to a fair, transparent and accountable disciplinary system. I welcome the member for Bruce’s monitoring of this system because, on my departure from the parliament, I am happy to know that someone is still watching this issue. Rest assured that our very effective minister in this area will be ahead of the Labor Party, on most counts anyway.
It is an interesting piece of legislation for me because a lot of my constituents have said to me over the years: ‘In my day, we used to put all of these vagrants and graffiti artists and all of these young people with criminal records who go in and out of juvenile detention centres into the Army. Put them in the Army. There should be compulsory military service. Sign them up.’ In fact, a lot of the crotchety old warrant officers that I know openly admit that they have saved many a young man from himself and from a criminal career by beating some sense into him in the military. When I was in the Air Force we had 15,000 people. Today we have 11,000 people. The entry requirements to get into our military today, with the equipment that we use, mean that every one of them has to be highly skilled.
This government has finally fitted out this Defence Force with equipment that will sustain them in defending Australia. One of the real motivating factors of my election into parliament was the standing joke in the Air Force in 1996, when I was elected, which was: ‘Don’t let the war be longer than three days because we are fitted with but not for.’ I think today we have probably gone for the reverse—we are fitted for, but not quite with, so we might have to have a look at our Defence personnel numbers. Every single one of those personnel has to be fully trained, fully capable and really highly skilled. The Defence Force is not a reform school. It is not a place into which, as my constituents say, to put our vagrants and knock some sense into them, and give them a good career and the ability to pay a mortgage and raise a family.
Consequently, the ‘behind-the-hangers justice’ that used to happen—that clip over the ear by the warrant officer—is just not on. If you are asking someone with a university degree or a trade or that sort of thing to serve in the Defence Force, military justice has to move on, has to get with the professionalism of a modern defence force. So, too, must its disciplinary system because, at the end of the day, the chain of command must still work. The chain of command is fundamental to the functioning of any military.
So how do you discipline someone for a breach of that chain of command? I think it starts out with major education, right from recruit training, in the following: ‘What is an order?’, ‘What is a lawful order, an order that must be obeyed, and what is an order that does not have to be obeyed?’, and ‘What is an order outside of the rights of your commanding officer?’
We have heard, for instance, the story of young British soldiers patrolling a border to Ireland. On seeing a car on approach to the checkpoint, one of the soldiers fired at the car—and that was perfectly legitimate under the rules of engagement. The minute that car went through the checkpoint, the bullet he fired, which killed a young person in the car, came from the rear—and that was against the rules of engagement. That young soldier was consequently charged and had to defend himself. That is the split-second difference between right and wrong in a military situation.
Our young people need to be aware of their rights and the obligations that go with the awesome power that they wield. We hope that the military justice system is never used. But, if it is used, it may be on the unique ground of ‘disobeying a lawful order’, to which there is no civilian equivalent. I do not think you can ask a civilian court to even understand the culture. When someone in a superior command position says, ‘Jump,’ you say, ‘How high?’ It is not a situation in which one might question; it is not a situation in which one might get legal advice.
We are looking for a tribunal that can deploy. It must be able to respond to the needs of the military, whether they are going to Timor, Afghanistan, Iraq or wherever. Wherever we are putting our people, this court needs to be able to go with them and act effectively.
One of the amendments that we have made is to have a new time limit, of up to three months from the time a member is charged to the date of trial by summary authority; that is to avoid delays. You have a three-month window in which to charge and try people. I think that is a huge improvement on what used to happen in my day. I used to see some matters that would take up to two years to go through the system. At the end of the day the person charged might have been found innocent, but by that time they would have put in their discharge and be separating from the Defence Force and would have been very browned-off with the services.
In this day and age, where we are looking for our recently exited Defence personnel to be part of our reserve forces—they have the training, they have the capability, they ought to be part of our defence of the nation—we do not want people separating from the Defence Force in a state of anything other than good humour and affection towards their old employer, such that they would come and help out should the need arise. As it is, far too many of our defence people, as the member for Bruce pointed out, separate very acrimoniously. That is something that, by working through our grievance and disciplinary procedures, we certainly hope to remedy and thus reduce the angst over time taken, transparency, fairness and the way they see they have been dealt with. It is important that they see that it is accurate and that they feel they have had justice. Then, even if they do subsequently separate from the Defence Force, it should be with good will.
The member for Bruce named a number of cases, but I will take him to task on one—that is, the Voyager versus Melbourne incident. I think the Commonwealth is on very strong ground there. I am appalled at the legal company that induced one of my constituents to run a case. At no time was he told he would be liable for all of the legal fees. This law company convinced this fellow to go all the way to the High Court, where he lost, on a case that is 40 years old. He had to get over the initial problem of the delay of 40 years. That was very unlikely to happen. The legal company has told my constituent in writing: ‘Don’t you worry about it. You’ll die before the Commonwealth chases you for that debt.’ There are some lawyers out there who add to the angst and financial detriment of ex-defence personnel. This person was a self-funded retiree. He had his own home, and he and his wife were managing independent of the government. Since this legal matter they have become quite destitute, and they are beyond the age of ever working again. He is over 65. Some of the examples of the member for Bruce need to be taken with a grain of salt, but others we could have dealt with a lot faster.
One case I mentioned earlier is that of Russell Vance. I just cannot believe that matter is still going on after all this time. If Russell had had the opportunity, under the current AMC system, he would not have separated from the defence forces in such an acrimonious circumstance. Also, you would have seen these procedures enhancing his right to command rather than substantially undermining it. With the vagaries of everything that went on, we had a situation in Butterworth where P3C Orion operational aircraft were unable to function. A functional, operational part of the Defence Force was not able to operate in the chain of command. That can never occur. At all times there must be someone in charge making decisions and making orders, with systems in place, rather than personnel having personal issues and problems and chewing up resources and time. These matters need to be resolved expeditiously, very quickly, transparently, fairly and with everyone’s rights respected.
The member for Bruce made an interesting point about our ability to collect information on the numbers of matters that we have resolved. That is something the Defence Force should possibly look at. It will probably come through in the various progress reports on reforms over time. This is our second instalment. It is something that I have always had an interest in, although contesting three by-elections in my first term and then being a minister in my second I never really had as much time to devote to it as I would have liked. It is great now, in the twilight of my political career, to see that something is being done to remedy a lot of the conflict of loyalties that legal officers feel towards their chain of command, the uniform, the operational imperatives and making sure that their clients get a fair trial. We have gone a substantial way to making sure that this is effective.
I will go to some of the key points. There is the right to appeal to a court martial or Defence Force magistrate following a summary trial. That is one of the amendments we have made. Currently there is only a right to petition a reviewing authority. Again looking at and tightening up a lot of the offences, one of the key offences—most frequent offences—that I dealt with in my time as a legal officer was the unauthorised discharge of a weapon. That is something that has no civilian equivalent. Men are on a firing range. You are legitimately firing at targets but if you do not do so according to an order that is something that is taken incredibly seriously and you will be charged for it. I do not know that on any other firing range anywhere in Australia that is an offence or even comes close to being one. There are a lot of unique situations to our military that justify a separate tribunal, that justify something that is unique for them that also does not impede their operational imperatives or training objectives.
One of the other things that I like about this bill is the automatic disqualification of a summary authority to try offences where that summary authority has been involved in the investigation of a service offence, the issuing of a warrant or the preferring of a charge. I know in my time in the Defence Force I was frequently preparing the charge, appointing the defending officer and the prosecuting officer and probably giving advice to the CEO as well. It probably can be done a lot more transparently than that.
The other thing we have done is strengthen the rights and duties of legal officers in particular to ensure that the exercise of their legal duties is independent of undue command influence. That is another important thing, because often the commanding officer before whom your various prosecuting and defending officers are referring is also writing the officer evaluation report of the legal officer. I think that is a very important change that we have made as well. There are a number of excellent changes in the second tranche of restructuring our service tribunals to give our modern, effective, very skilled and highly effective Defence Force the similar and same military justice system that it deserves for the 21st century. I commend the bill to the House.
11:27 am
Bruce Billson (Dunkley, Liberal Party, Minister Assisting the Minister for Defence) Share this | Link to this | Hansard source
in reply—I thank the members for their contributions today. The Defence Legislation Amendment Bill 2007 represents one of the most wide-ranging reforms to the ADF summary discipline system since the introduction of the Defence Force Discipline Act 1982. I particularly thank the member for Lindsay for her welcome contribution to this debate and the earlier debate on the Australian Military Court legislative framework. Her background as a former serving Air Force legal officer has placed her in an excellent position to add value, practical insight and experience to this process, and I commend her for her remarks and wish her well with her post-parliamentary career. I hope that it is as satisfying and fulfilling as you hope it can be. Good luck with that.
I also thank the member for Bruce for his contribution. There is a welcome air of cooperation and collaboration between the opposition and the government on this measure. His encouragement to maintain an observation about how the system actually operates in practice is well understood. We have a periodic reporting framework for the whole military justice implementation package that the government has introduced, and he can be assured we will be closely observing how it operates.
The bill introduces far-reaching reforms to the ADF summary discipline system flowing from the government’s response to the 2005 Senate report on the effectiveness of Australia’s military justice system. My colleague the member for Lindsay has touched on a few examples where it certainly was suboptimal and there was considerable room for improvement.
This bill enhances the summary procedures by introducing a number of significant safeguards such as the automatic right of appeal for summary trials to a new Australian Military Court, yet still enables commanders to maintain effective discipline while recognising the need for timeliness, which is critical in operational circumstances, and the need for fairness to protect the rights of individuals. Again, the member for Lindsay has accurately characterised those unique demands within the military context and the regimental demands of service—a very helpful insight again.
I also alert members to the fact that I will, at the conclusion of this speech, in the consideration in detail stage, move an amendment to further enhance the compliance with the rules of natural justice and other principles of the rules of evidence in proceedings before the summary authority. That has been alluded to by the member for Bruce, and I welcome his support for that amendment.
As I said when I introduced this important bill, commanders use the summary discipline system on a daily basis. The system is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. It is fundamental to the Australian Defence Force’s success in operations, success of which every Australian can be rightly proud.
In addition to the right of appeal to the new Australian Military Court on conviction and punishment, the bill also introduces an equally important reform in the right of a defence member to elect a trial by a military judge of the Australian Military Court for all but a limited number of certain disciplinary offences.
If the right of election were completely discretionary on the part of the individual member, it is not too difficult to imagine circumstances in which the exercise of that right could have the potential to affect the operational effectiveness of a unit. It is therefore necessary for some limitation to be placed on those circumstances in which such a right can normally be exercised. This has been done by listing in schedule 1A a number of offences, essentially disciplinary in nature, in relation to which a member has no initial right to elect trial by the AMC and which must be dealt with by a summary authority in the first instance. For example, it would be anomalous if an absence of two hours could not be dealt with by a commanding officer on the spot. That absence has implications, particularly when there is scope to deal with the issue on the spot. This recognises the imperative that discipline must be maintained within Australia and overseas, in peace and in war, and that relatively minor matters of a disciplinary nature ought to be dealt with as speedily as possible. The list of offences to which this provision will apply meets the requirements of the services and recognises that summary discipline, by its nature, has to be quick, fair and as simple as possible, while at the same time providing the safeguard of an unlimited right of appeal should a member convicted under this arrangement wish to exercise it.
Additional safeguards have been included for these offences, such as limited punishments and a requirement for summary authorities to offer a right of election if, prior to making a finding of guilt, they determine that the more severe punishments that are available to them might apply. If there is a very profound impact of the likely action then the process provides further avenues for the accused person. These additional safeguards for the accused will be further supported by the right of a convicted member to appeal a conviction or punishment to the Australian Military Court and the automatic review of all summary trials.
The review of the proceedings of summary authorities not only is a means of ensuring accountability but provides additional safeguards for members of the ADF. Where there has been a technical error, such as the imposition of a punishment which is not authorised, the reviewing authority may refer the matter back to the summary authority for it to be reopened and corrected within the authority. This is an important safeguard and will further protect the rights of defence members who are tried and convicted by a summary authority and who may not exercise their right of appeal to the Australian Military Court. Certain more severe punishments will also not take effect until approved by the reviewing authority, which may quash a punishment or impose a less severe punishment, which will then be subject to an automatic right of appeal.
The bill also introduces a number of other significant enhancements to ensure the right balance is struck between maintaining effective discipline and protecting the rights of individuals. I canvassed all of these enhancements when I introduced the bill, but I would like to quickly touch on and emphasise a number of them, which include: enabling service tribunals to deal with offences in respect of a more contemporary range of illegal narcotics up to the trafficable amount in Australia, to support the enforcement and the application of the ADF’s no drug policy; allowing the suspension in whole or in part of a greater range of punishments under the DFDA, which will enable the part suspension of detention where the circumstances of a case or mitigation establish that this is appropriate; removing the separate and more severe scale of punishments for the Navy, which is no longer relevant and which will provide for consistency with the other two services; providing that the status of a summary conviction is expressed to be for service purposes only so that members of the ADF are not unduly affected by disciplinary infringements long after they have left the services; and having a new time limit, which the member for Lindsay touched on, of ‘as soon as practicable within three months from the time the member is charged to the date of trial by summary authorities’ to ensure the timely handling of summary trials.
Another major reform is the introduction of a simplified evidence framework. The evidence regime currently applicable to summary trials is overly complex and not easy to apply by persons without formal legal training. It includes both Commonwealth and ACT evidence legislation, in addition to extensive policy guidance. The bill will make it clear that a summary authority will not be subject to the same formal rules of evidence that apply to the Australian Military Court but must not depart from the fundamental principles underpinning the rules of evidence.
The new evidentiary framework is based on the successful system which has been in use for many years by the Canadian forces. The requirement in the Commonwealth Criminal Code—as applied by section 10 of the DFDA—dealing with the principles of criminal responsibility, including the burden and onus of proof, will remain applicable in summary trials. The very important protection against self-incrimination is also being enshrined in the DFDA to avoid any doubt about its continued application, notwithstanding the exclusion of the formal rules of evidence.
The summary trial process must be fair and be seen to be fair. Although summary authorities are not courts in the ordinary sense, it is important that the requirements of natural justice and procedural fairness are adhered to. These include the absence of bias and the ability for a person to know and be able to answer a case made against them. To further strengthen the recognition of the rules of evidence, and as I have already stated, I will be introducing an amendment to the bill today, as recommended by the Senate Standing Committee on Foreign Affairs, Defence and Trade in its recent report on the provisions of the bill. As recommended by the committee, the amendment will strengthen the recognition of the rules of evidence but not mandate their application.
Additionally, the bill provides for the making of the Summary Authority Rules, which will be ‘legislative instruments’ as defined in the Legislative Instruments Act 2003 and be subject to parliamentary scrutiny via the registration and disallowance provisions in that act. In proceedings before a summary authority the summary authority shall act in accordance with any rules made by the statutorily independent chief military judge. The safeguards provided by the rules may include the compellability of witnesses, the manner of taking evidence and such other matters as considered necessary or appropriate by the chief military judge. The overriding safeguard, however, is that nothing in this proposal will affect a member’s appeal or election rights to the Australian Military Court from a summary trial.
In summary, the bill, together with the proposed amendments, introduces significant enhancements to the ADF summary discipline system that give effect to the agreed recommendations of the 2005 Senate report while allowing it to operate quickly, to be as simple as possible and to be capable of proper, fair and correct application by commanding officers where it is necessary to deal with misconduct that could undermine command authority and impinge on successful military operations. I commend the bill and the proposed amendments to the House. I present a supplementary explanatory memorandum to the bill.
Question agreed to.
Bill read a second time.