Bob Baldwin (Paterson, Liberal Party, Shadow Minister Assisting the Shadow Minister for Defence) Share this | Link to this | Hansard source

From the outset, let me say that the opposition supports the Defence Legislation Amendment Bill 2008. The bill introduces far-reaching reforms to the ADF summary discipline system, stemming from the former coalition government’s response to the 2005 report of the Senate Foreign Affairs, Defence and Trade References Committee entitled The effectiveness of Australia’s military justice system. This bill amends the Defence Act 1903, the Defence Force Discipline Act 1982, or the DFDA, and the Defence Force Discipline Appeals Act 1955, or the DFDAA, to simplify and redesign summary discipline procedures and represents one of the widest ranging reforms to the Australian Defence Force summary discipline system since the introduction of the Defence Force Discipline Act.

The Howard government first introduced these amendments last year, but the 2007 amendment bill lapsed when parliament was prorogued. This bill includes measures included in the 2007 bill and also the amendment flagged by Bruce Billson MP in the second reading speech on the Howard government’s bill last year responding to the concerns of the Senate committee that examined the bill—chaired at the time by Liberal Senator for New South Wales Marise Payne—regarding the simplified rules of evidence at a summary trial. There is bipartisan support and cooperation on military justice reforms, and the coalition remain committed to ensuring these reforms are adopted and, more importantly, successful—consistent with our response in government to the recommendations of the Senate committee’s 2005 report. This bill, consistent with that proposed by the former government, aims at ensuring an appropriate balance between the maintenance of discipline and the protection of the rights of Australian Defence Force members.

The bill’s key amendments include enhancing the summary procedures by introducing a number of significant safeguards, such as an automatic right of appeal to the new Australian Military Court for summary trials, while still enabling commanders to maintain effective discipline and recognising the need for time lines and fairness to protect the rights of the individual. Currently, an ADF member has no mechanism to appeal to a court martial or a Defence Force magistrate with regard to a conviction or punishment imposed by a summary authority. This bill enacts one of the recommendations of the 2005 Senate report by introducing the right of appeal from a summary authority to a single military judge of the Australian Military Court. It was argued in the 2005 report that service personnel should have this right for charges that would potentially lead to a criminal record or affect them post military service.

Another key amendment is the right to elect trial by a military judge of the Australian Military Court for most disciplinary offences. This amendment again stems from the 2005 report and is similar to the Canadian armed forces summary disciplinary system.

Further, amendments relating to the simplified rules of evidence are significant. The evidence regime currently applicable to summary trials is overly complex and not easy to apply by persons without formal legal training. 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 used for many years by the Canadian forces.

Further amendments include: a form of review for technical errors related to the awarding of punishments and orders; simplification of offences and punishments; and changed jurisdictions of superior summary authorities and discipline orders.

When the 2007 bill was examined by the Senate committee it was welcomed and endorsed by Army, Navy and RAAF as well as the then Acting Chief of the Defence Force. Given the defence forces expressed their belief that these amendments struck the right balance, we welcome its consideration. In offering our support the coalition call on the government to monitor and review the impact of these reforms to ensure that they are working as envisaged and have no unintended consequences on ADF personnel, particularly in relation to the rules of evidence.

In keeping with the previous examination of such issues the coalition believe that a review by the Senate Standing Committee on Foreign Affairs, Defence and Trade should be considered. Furthermore, last year the then shadow minister Alan Griffin expressed his view that Labor believed there were still a number of reforms to the military justice system they would pursue. The coalition calls on the Labor government to continue in the same manner as the coalition in government and ensure that any changes involve extensive consultation amongst stakeholders, particularly within the ADF, as well as to commit to extensive scrutiny in the parliament.

Given the bills introduce a number of significant enhancements to ensure the right balance is struck between maintaining effective discipline and protecting the rights of individuals, the coalition, as it did in government, commends this bill to the chamber.

Greg Combet (Charlton, Australian Labor Party, Parliamentary Secretary for Defence Procurement) Share this | Link to this | Hansard source

I wish to speak in support of the Defence Legislation Amendment Bill 2008. The substance of the bill provides for further reforms to Australia’s military justice system. It may be recalled, as the previous member indicated, that the bill was introduced in parliament before the last election. The bill is substantially the same, except for a number of changes to the evidentiary framework that applies to summary proceedings, following recommendations from the Senate Standing Committee on Foreign Affairs, Defence and Trade report that originally proposed the bill.

Whilst in my role as Parliamentary Secretary for Defence Procurement I have no direct responsibility for the operation of the military justice system, I certainly have an interest in its effectiveness and note the importance of such a system for our Defence Force. I would like to begin by outlining the importance of a strong, fair and effective military justice system and also outlining some of the history to the reforms contained within the bill before I address its substantive provisions.

As Australians we expect our legal system to be strong but fair. One of the guiding principles within our democratic system is the tradition of the rule of law. While this concept has been the subject of abuse and misinterpretation, the rule of law basically refers to the principle that no one person is above the law. It is valuable to consider how this applies to the actions of government. Accepting that no one person or entity is above the law necessarily prescribes the action a government can take against an individual. The rule of law provides the principle that the power of a government and its authority can only legitimately be exercised within a framework of written and publicly disclosed laws which are adopted and enforced in accordance with established procedures—that is, they are enforceable by due process.

This principle places a necessary limitation on the arbitrary action a government can take against its citizens—it provides for an individual’s rights. This is a key defining principle of our legal system but one that we can often take for granted. However it is imperative that public officials and those who advocate on behalf of others keep in mind the importance of this principle in the conduct of their roles. I have learnt from my time in public service that Australians demand and expect an appreciation of the rule of law underpinned by a strong sense of giving people a fair go. They therefore expect to see their public institutions pay adherence to these principles in the conduct of their roles and responsibilities. This expectation of the Australian public extends of course to one of our most important institutions: namely, the Australian Defence Force.

The ADF is an institution that exercises governmental authority and power. The ADF and their leaders are very aware of the expectations upon them and they are acutely aware of the importance of the rule of law and due process. They have seen, in conflicts around the world, the problems that have arisen when such principles are not adhered to. They also take great pride in the principles and values of our democratic system of government—values, of course, that they are serving to protect.

In order for the public to continue to have high regard and faith in the ADF as an institution, the military justice system that governs it must be seen as principal. It is therefore vitally important that our military justice system is seen to be adhering to these values and to be a strong, effective and fair system. The bill is part of a series of reforms to that system of military justice designed to help ensure the continuation of public faith in its exercise.

Whilst recognising the importance of the rights of an individual and the rule of law, it should also be acknowledged that the military justice system is required to operate in quite unique circumstances. Given the nature of ADF operations and the importance of a high level of discipline to the success of these operations, it should be recognised that at times a stricter form of punishment may be required for an offence which in the civilian world would not seem to warrant such a severe punishment. It is also an element of our justice system that is required to operate both within and outside of Australia in times of war and peace. None of this is to suggest that this is an excuse for an unfair justice system that does not accord an individual adequate rights—it certainly is not. Instead, though, we need to recognise that there are unique characteristics that are part of our military justice system which must be acknowledged and considered by the government in its formulation of reforms. I believe that the reforms contained within this bill and those that have preceded it help to strike the right balance in that regard.

Australia’s military justice system has two distinct but interrelated elements: the discipline system and the administration system. The discipline system provides for the investigation and prosecution of offences committed under the Defence Force Discipline Act. Offences dealt with under the discipline system can come under three categories. The first category covers offences peculiar to the defence forces, such as absence without leave, disobedience of a command and endangering morale. The second category under the discipline system covers offences similar or identical to civil offences but that relate to service personnel or equipment, such as assault of a superior or subordinate, destruction or damage of service property, or dealing in narcotic goods on a base. The third category covers offences imported from civilian criminal law, such as murder, manslaughter and theft of non-service property.

The first two categories that I have just outlined are offences that relate specifically to the military and the third category is an incorporation of civilian criminal offences into the military justice system. The need for this incorporation comes from a recognition that these offences may occur when an ADF member is deployed overseas, in which case there may be an inadequate criminal law framework or the application of that country’s law may be undesirable by our standards—an example is the application of the death penalty.

The second element of Australia’s military justice system is the administrative component. The administrative system deals with the decisions and processes associated with control and administration of the ADF. It is designed to encourage service personnel to maintain high standards of professional judgement, command and leadership. The administrative system broadly comprises an inquiry system, adverse administrative action in response to a member’s conduct, and internal and external review processes. The bill relates to the operation of elements of the discipline system that I have just outlined.

Over the past decade there have been a number of inquiries into the military justice system following some high-profile cases which demonstrated some deficiencies with the system. Each of these inquiries identified flaws in the system and its related processes. However, it was a Senate inquiry that really started the impetus to a strong reform program.

In October 2003, the Senate referred the issue of military justice to the Senate Foreign Affairs, Defence and Trade References Committee. The committee was instructed to inquire and report on the effectiveness of the military justice system in a number of areas. These included: determining whether the system provided impartial, rigorous and fair outcomes for ADF members; mechanisms to improve transparency and public accountability of military justice procedures; allegations of the mistreatment of ADF members and of drug abuse; and the handling of peacetime deaths in the ADF from any cause.

The findings of the committee were of great concern. The Senate committee, among other findings within the report, concluded the following: the ADF was manifestly incapable of adequately performing its investigatory function; boards of inquiry were lacking in transparency and independence; processes of investigation and trial were found to have placed great stress on individuals, leading to a loss of confidence, loss of employment, suicidal thoughts and attempted and actual suicides; and ADF members were reluctant to lodge complaints because they doubted the effectiveness and impartiality of the system. They were findings of obvious significance and concern from the Senate committee. Broadly, the committee reached a conclusion that major change was needed to ensure the independence and impartiality of the military justice system.

In 2005, the then government issued their response to the report, agreeing to 30 of the 40 recommendations that had been made. The recommendations that were not agreed to involved a greater civilianisation of the military justice system. Labor agreed to the government’s response at that time but noted that the agreed reforms must be effective or further action along the lines proposed by the committee would have to be considered. The Rudd government still maintains that view.

There were two areas of reform covered by the then government’s response to the recommendations of the committee. The first involved the replacement of the Defence Force Magistrate trials with a new Australian Military Court, the appointment of an independent director of military prosecutions and a Provost Marshal ADF. The first stage of these reforms was introduced by legislation in 2006. This included the establishment of an Australian Military Court which came into effect on 1 October 2007. It was a significant reform. The second involved a number of reforms associated with the administrative system itself. The majority of these reforms are now in place and their progress is being updated in regular six-monthly reports back to the Senate committee.

The bill deals with some of the final reforms that were intended following the committee’s reports. I would now like to summarise some of the major provisions of the bill. Firstly, the bill seeks to simplify and redesign the summary discipline proceedings. The summary discipline system is designed to deal with offences of a less serious nature quickly and efficiently. This helps commanders in the field maintain discipline and morale among their troops and it can be used on a daily basis to help ensure the welfare and safety of ADF members. The Rudd government is of the view that the summary discipline system, given its importance, must be efficient, simple and fair. Given that its operation is conducted by officers who have no formal legal training, it is important to make it as easy as it can be for it to be applied while still maintaining the rights of the individual.

This has been the basis for the government’s proposed reforms within this bill. The bill basically contains four major changes to this system. The first of these is the introduction of a right in all cases to appeal a summary authority conviction, order or punishment to a military judge of the Australian Military Court. This meets one of the Senate committee’s important recommendations allowing for the introduction of a right to appeal summary decisions before an independent permanent military court. It is schedule 2 of the bill that will give effect to these reforms. In practice, it will allow for a statutorily independent military judge of the Australian Military Court to deal with an appeal on its merits by way of a fresh trial or a paper review of the evidence. If the appeal is upheld, the judge may substitute or quash the conviction; order a new trial; or confirm, quash or vary the punishment given.

The second change is to allow a right to elect trial by a military judge of the Australian Military Court for all but a limited numbers of offences. Again, this serves to address the concerns of the Senate committee. The provisions that give effect to this change are contained in schedule 1 of the bill. For all but the most minor offences, ADF personnel will now have this right. For those minor offences where no right to elect a trial is present, there will be a limitation on the forms of punishment that can be given. If a variance to these forms of punishment is considered, the right to elect a trial under the Australian Military Court must also be offered.

The third change involves the introduction of a revised evidence framework for the conduct of these proceedings. When this bill was introduced before the lapse of the last parliament these changes were not contained and were recommended by the Senate committee that reviewed the legislation. The Rudd government has made these changes in recognition of the need for rules of natural justice and the desire to apply fundamental evidentiary principles to these proceedings. These changes are outlined in schedule 3 of the bill.

The fourth area of changes covers a number of significant reforms to the review process for summary convictions, which are covered under schedule 4 of the bill. These include an obligation on reviewing authorities to recommend appeals to the Australian Military Court, where substantive errors are identified, and a new mechanism for correcting technical errors. These are considered and measured reforms that will have a great impact on the operation of the summary discipline system. They will help maintain the need for a simple and effective system while also providing for the strengthening of an individual’s rights.

The second key area of the bill follows from a review of the offences and punishments in the Defence Force Discipline Act. Schedule 5 of the bill outlines the changes to be made, which include: an expanded ability to deal with drug charges for offences committed both inside and outside of Australia by ADF and Defence civilians; making it clear that a failure to act can be as reprehensible as a wrongful commission of an act for some areas of modern military responsibilities; reinforcement of the need for a high standard of weapons safety; and an improvement in the accuracy and fairness of sentencing by allowing more flexibility in application of punishments in line with current civilian practice and ensuring that the status of a summary conviction is of relevance for service purposes only, so as to ensure that ADF personnel are not disadvantaged in their civilian lives. These reforms collectively are designed to introduce both a new thoroughness and fairness to the operation of the Defence Force Discipline Act.

Schedules 6, 7 and 8 of the bill cover a number of other smaller proposals designed to implement earlier recommendations of reviews that have not been acted upon, the clarification of the powers of the Director of Military Prosecution and a number of administrative reforms. They were outlined by my colleague the Minister for Defence Science and Personnel during his second reading speech. He will also be outlining an amendment to the bill when he speaks in due course. All of these are designed to provide clarification, to improve and streamline the operation of our military justice system.

I would like to conclude today by expanding on my earlier arguments on why these reforms to our military justice system are so important. You will recall that I earlier referred to the relationship between the public’s requirement that our institutions of government act in accordance with the rule of law and accord to an individual adequate rights. This of course remains the core reason for these reforms but, apart from that, I believe there are also two compelling reasons that these changes are needed—one is strategic and the other moral.

The strategic reason relates to the challenge posed by the government’s need to increase levels of recruitment and retention in the ADF. This will obviously be influenced by the public perception of the military justice system and the sense of security an individual will receive by knowing that their rights are protected within the workplace. Without a strong and fair military justice system there would be no chance of the government meeting the challenges in recruitment and retention in the ADF that it now faces.

The moral reason is quite simple: it is the government which sends the young men and women of the ADF overseas, often into dangerous situations. If the government is prepared to do this, it must also be prepared to provide them with the rights and the system of justice they deserve. We have all seen the examples of things that go wrong and when the system is not working properly; therefore, I believe we have a strong moral obligation to extend all of our efforts to ensure that these incidents do not occur again and that there is a fair system of rights.

I commend the bill and believe that it, and the reforms that have preceded it, will help to make a real difference in our efforts to achieve a strong, fair and effective military justice system.

Stuart Robert (Fadden, Liberal Party) Share this | Link to this | Hansard source

I rise to lend my support to the Defence Legislation Amendment Bill 2008. The purpose of the bill is to give effect to what was in the original Howard government bill, the Defence Legislation Amendment Bill 2007. The bill introduces wide-ranging reforms to the Australian Defence Force summary discipline system. The bill provides for a further set of changes which in part build on the changes in the Defence Legislation Amendment Act 2006. The changes are intended to provide for, and balance, the maintenance of effective discipline and the protection of those individuals who are subject to the military discipline system. It introduces another element of military justice, which reflects the fairness of civilian processes of justice but in a way that recognises the realities of applying military discipline fairly and efficiently not only in Australia but in the field of combat operations across the world.

The 2007 amendment bill was introduced by the Howard government in mid-August 2007 to give further effect to the Howard government’s response to the report by the Senate Foreign Affairs, Defence and Trade References Committee entitled The effectiveness of Australia’s military justice system by amending the Defence Act 1903, the Defence Force Discipline Act 1982 and the Defence Force Discipline Appeals Act 1955. There have been numerous inquiries over the past decade and a number of court challenges and publicly-aired complaints brought by former and serving personnel, their families and other community members suggesting that the military justice system was flawed. Significant official inquiries included the 1997 study into the judicial system under the Defence Force Discipline Act, by Brigadier the Hon. Justice Abadee; the 1998 Commonwealth Ombudsman’s own motion investigation into how the ADF responds to allegations of serious incidents and offences; the inquiry into military justice procedures in the ADF by the Joint Standing Committee on Foreign Affairs, Defence and Trade in 1999; the same committee’s inquiry report, Rough justice? An investigation into allegations of brutality in the Army’s Parachute Battalion, a battalion in which I served as an officer in 1993; the 2001 Burchett QC Report on the inquiry into military justice in the Australian Defence Force; and the 2002-03 Western Australian Coroner’s investigation of fire onboard HMAS Westralia.

This bill, cognisant of the inquiries that have gone before it, relates to the less serious offences and aims to modernise and redesign the summary discipline system. These less serious offences include offences peculiar to the Defence Force, such as absence without leave, disobedience of a command and endangering morale, and offences which are similar or identical to civilian offences but which relate to service personnel or equipment, such as assault of a superior or subordinate, destruction or damage of service property, or dealing in narcotic goods on a base.

As I have already stated, there have been numerous inquiries into the administration of justice in the ADF. Many inquiries made suggestions for improvements to the military justice system; some suggestions were acted upon and some were not. By the time the 2003 committee published its report in June 2005, it acknowledged:

For ten years now, there have been increasing calls from servicemen and women and their families that all is not well in the military justice system.

The 2003 committee made 40 recommendations for change. Thirty of the 40 were accepted in whole or in part by both the previous government and the current government. This bill is a direct response to those recommendations. The 2003 committee stated in its report of 2005 that it ‘believes that the military justice system in its current form clearly needs a comprehensive, ground up reform’. The 2008 version of the bill—virtually a copy of the Howard government bill—delivers that ground up reform. It creates a new system with many built-in safeguards. There is a system of review and appeal which, on its face, should deliver outcomes that are fair, informal and timely. The ADF has asked for simpler rules of evidence. Although the formal rules of evidence will not have to be applied, the bill requires that summary authorities comply with the rules of natural justice and the basic principles of the rules of evidence relating to relevance, reliability, weight and probative value. The bill is very welcome.

I am one of only three former serving military officers in the House of Representatives. I have previously felt the weight of an unjust military justice system. In my time at the Royal Military College Duntroon I was—and I know that you will be shocked—charged for being absent without leave. I am appalled to say it. I missed a night-time lecture. The fact that I was at the college and was indeed not absent, and not absent without leave, was deemed irrelevant. The rules of evidence are somewhat loose when one is an officer cadet. As a military officer, I have defended and prosecuted numerous soldiers and fellow officers. If I can use a phrase, I have stood there while the chorus has rung out numerous times to ‘march the guilty bastard in’. And having previously been one of those ‘guilty bastards’ marched in, it is a little disconcerting to hear that my fate had been decided by the company sergeant major outside the door before indeed I had ever faced the summary authority.

Currently—prior to this bill—there is no appeal from a summary authority, be it an officer commanding or indeed a commanding officer. There is no appeal for the poor ‘guilty bastard’ being marched in. There is no right to apply to a single judge of the Australian Military Court. This bill seeks to right that wrong. My fellow officers have gone through a number of court martials and inquiries, not least being the one into my former battalion, the 3rd Battalion, the Royal Australian Regiment, and the one into the Blackhawk disaster. They have come out confused, scarred, disappointed, feeling they have been failed and let down by a military that they had committed their life to. Many of these officers welcome the changes being brought in today.

Colleagues, the days of Napoleon and Wellington are over. The days of marching to war and on day one hanging one to make sure that the rest will follow are over. Combat effectiveness is predicated on faith that the man next to me will do his duty; that the man sharing the foxhole with me in the dark hours of the morning will stand to, man his weapon and do what is right. Injustice weakens faith. Injustice weakens combat effectiveness. It weakness unit cohesiveness. If soldiers and officers have no faith in their commanders—who by the Defence Force Discipline Act, sit as summary authorities, both at officer commanding and commanding officer levels—and lack faith in the justice dispensed by their senior officers, they will lack faith in their ability to lead in times of turmoil.

This bill ensures that the average digger, the hardworking NCO and the commissioned officer are fairly dealt with in a way that is cognisant of their rights. It gives the poor ‘guilty bastard’ outside the opportunity to be fairly heard and to take their right to go to a single judge of the Australian Military Court if needed. On behalf of the diggers, the hardworking NCOs and the commissioned officers out there, I commend the bill to the chamber.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to 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.

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Defence Legislation Amendment Bill 2008 to address the military justice system. At the end of 1987 I resigned from the Australian Federal Police to begin 18 months of very interesting and exciting training at the Royal Military College, Duntroon, starting in January 1988. Unfortunately, to my shame, I was charged twice as a cadet. That was my introduction to the military justice system. It is a disgrace! Both my cadet charges were for heinous offences relating to uniform shirts—polyester shirts. It is a grievous tale. About eight weeks into my training, an inspection revealed that there were not enough ironed shirts hanging up in my cupboard, and so a charge was laid against me. As a result of that charge I had what was called a ‘restriction of privileges’, another very exciting moment in my life. After that charge was heard I had to report four times a day for seven days for dress inspections, and for one afternoon of about 45 minutes to an hour of drilling on the parade ground in marching order—which was with helmet, webbing, pack and, at that time, greens. That, too, was a lovely moment.

About a year later, in my final six months at Duntroon, after an inspection of vehicles—which was random in those days, interestingly—I was charged for having another uniform shirt in the boot of my car. It should have been in my cupboard. The week before, we had been drilling on the parade ground—those were the days of SLRs. Shoulder arms was a requirement as part of the drill. My buddy on my left and I were standing a little too close together. The bayonet on the end of his rifle went up and cut the inside of my sleeve—luckily only the sleeve. I thought that further ironing of that shirt was a bit pointless and, probably a bit recklessly, I chucked it in my boot, thinking that that would be okay. Unfortunately, that inspection—looking for contraband, which was just alcohol in those days—took place, and I was caught in possession of goods. As a result of that I lost two days of leave for the offence of failing to comply with a lawful standing order—in other words, having military equipment in my vehicle. So they were my first two experiences with the military justice system. I think most cadets at Duntroon had similar experiences.

The essential point here is that obviously these were not major offences in the military system, but they were treated as training opportunities. Every time you got charged, you then had to go forward and ask one of your mates to be the prosecutor, someone else to be the defender and someone else to be the clerk, as I recall. The cadet company drill sergeant, who was a member of the regular Army, a sergeant from one of the infantry battalions normally, would oversee the training aspects of the hearing, and the officer commanding, the OC who was the major in charge of the company, would hear it. As a little aside, I thought it was a bit ludicrous to be charged for a torn shirt. When they read the charge out, I looked down at the OC’s eyes—he had his cap on and was seated at his table—and a slight wry smile came over his face. Then I started laughing. My lack of respect for the system probably cost me those two days, whereas I might have got off with some other punishment. But loss of leave was not a big deal compared to the restriction of privileges and marching on the square.

After Duntroon I tried to keep on the right side of the military justice system. In June 1989 I graduated and went straight into the Royal Australian Corps of Military Police. In many ways military justice and the DFDA—the Defence Force Discipline Act—were pretty much the bread and butter of my occupation, at least in the early days of my career in the Army. Within the Royal Australian Corps of Military Police there are basically two main streams: the general duties side, which is the field force military police, and the Special Investigation Branch of the military police. The SIB is tasked with doing investigations within the military. The general duties side involves field military police doing things such as battlefield circulation—some people call it traffic control—in the area of operations and some investigations. But the SIB MPs were something like army detectives, although only about five per cent of them had ever actually done the full police detective course.

In my case, having come from the AFP, I had done stage 4 training, as we called it in those days, including records of interview and investigations in general. In my time with the MPS I also did a three-week investigators course with the Victoria Police. That all took place before I even did the eight-week SIB course in the military police. As an SIB commander with the rank of captain I was fortunate enough to lead teams of investigators—this was in 1993—across the major bases in Darwin, Townsville and Brisbane. I was posted to Brisbane. Unfortunately, in 1993-94 the SIB was broken up as part of an efficiency review. That left the SIB teams split up and without the technical support of an objective chain of command. I will cover the objective chain of command soon, because it will become relevant.

Under the revised structure I headed a small group of investigators based in Brisbane, again, unfortunately, with a marginalised MP SIB technical chain of command. That chain of command had no platoon command and few resources at its disposal. So we struggled with a command structure that was made up of a commanding officer and other ranks that had no experience whatsoever of commanding or administering SIB investigators. This was bad for professional military police investigators, because to receive resources for investigations I actually had to go to the unit commander and tell him where I wanted to go and what I was going to do there.

An example of the absurdity of the situation was when I informed my commanding officer—I think he was a transport corps Lieutenant Colonel—of my suspicions regarding the loss of property and fraud at a particular unit in southern Queensland. I informed him of that and asked him for resources. He said that he would think about it. I later found out that he had told his friend, who was the CO of that unit, about what I was talking about. I felt that that was a significant undermining of the investigations process within the military. I therefore believe that leadership remains an important part of the military justice system, because it has been the lack of leadership that has led us to the point where this legislation is required.

Given what I have already spoken about, it is from my experiences of conducting many an investigation in the Army and seeing the way some commanding officers acted that I now pass comments on this bill as possibly more than just a bystander in the process. I served this country as a commissioned officer for about 15 years and, for almost the entire time, I believed that the trouble with the military justice system was that the system was not allowed to work. I believe that the MPs and the SIB could do the job and that we MPs could operate within the DFDA to properly investigate matters. Sure, the equipment was not as good as it is now, but I had my view that we had enough to get on with the job.

My view changed around the time I finished my duties working on Olympic security at the end of 2000. What changed my view was that, as a major, I was given the task at land command to commence collating a list of harassment and similar problems across the units of the command. Land command controlled two divisions of the Army and the brigades down to almost all the field units. They were all under the command of land command. My recollection is that that amounted to more than 10,000 full-time and reserve soldiers. From the records I started assembling I saw that, while the Army was probably no worse than most large organisations at the time, there were enough cases to lead me to believe that there was a fundamental problem preventing the system from working.

But, before imparting my views in this place, it is probably best to speak a little bit about the leadership training of young officers in the Army. Again, my view is that the leadership training is very good within the Army. Members may be aware that, when the Army talks about a commanding officer of a unit, they are invariably talking about a person holding the rank of lieutenant colonel who may well be in command of a battalion or a regiment. COs would always tell their young officers that, whatever happened, the buck always stopped with the CO. I think we even hear a bit of that around here. From what I saw during my time in the Army, responsibility very rarely seemed to land at the feet of the CO. I suspect that true responsibility ended when officers no longer immediately resigned their commissions when they disagreed with orders given or with government policy. Nowadays, officers seem to wait for a job before resigning and then they speak about how much they disagreed with their orders. Again, we have seen examples of that in recent history.

I mentioned before that I thought the system was not being allowed to work. I reiterate my confidence in the training provided in the Army for investigators; although some decisions made in the past did undermine the experience and skill levels of investigators serving at the time. It is my view that the problem originated where MP-SIB investigators did not have the ability to initiate investigations. Unit commanders, the COs, had to call for the SIB before an MP investigation would commence. My experience was that so often the damage was done before the SIB was allowed to investigate an incident that had happened weeks before. It always seemed that some poor sergeant or lieutenant from the unit was told to investigate the incident while still doing all their other duties. I recall several incidents of harassment that were investigated in that manner.

I would like to talk a bit about a not very happy little story that occurred in a unit in Enoggera around 1993 and was investigated within the Army. It transpired that a young female soldier was posted to an electrical and mechanical engineer workshop and a couple of corporals that had a command responsibility over that soldier took a liking to her for physical reasons. Those days are what I call some of the dark days of the military where there was still some tolerance, although hardly any, of this sort of thing. I recall that centrefolds could be displayed in working areas. These two corporals actually held up a centrefold and tried to make some verbal comparisons between this young soldier and the images on the centrefold, in some sort of infantile manner to attract her attention or make themselves more interesting to her. Of course that was a complete failure. But, again, there did not seem to be a whole lot of action taking place to stop that sort of behaviour on the floor in that workshop. There was a breakdown of the command structure and leadership within the unit.

The next thing that happened—and this is where things got out of control—occurred at a corporals’ dining-in night at the soldiers mess at Enoggera. Often the privates were told that they were rostered on to do the waiting and everything like that—bring the food out et cetera. Corporals obviously were the main ranks at the tables that were being served. Officers were invited as well. The case involved these two corporals. They were seated with a lieutenant in between them and this young soldier served them. During the evening, they talked about her and made jokes about her. After the dinner concluded, the young male lieutenant went to that female soldier and said, ‘It’s probably best if you do not go home tonight back to your barrack room because those two corporals talked about how they were going to come to your room and try to rape you.’ Obviously great moral doubt should be cast upon the corporals but, above all, the main problem I see is that a lieutenant did not see that he had a responsibility to act and take action within the unit. He would have said, ‘I’ve discharged my responsibilities by warning that young soldier that there was about to be a problem.’ He did not order those soldiers to the guard post or tell them they would be charged with prejudicial behaviour, which is what I think we called it in Defence in those days. He thought he had discharged his responsibilities by saying, ‘Look after yourself; just don’t go back to your room.’ The fact that an indictable offence, in civil terms, was about to be committed did not seem to have any impact. I think that maybe leadership training was not exactly all that successful in those sorts of cases.

It is no great surprise that aggrieved soldiers of both sexes have been dissatisfied with some of the processes within military justice. After a major incident, an investigation would be done on a part-time basis by unskilled persons, guided by the interests of the CO and heard by either the CO or, depending on the charge, a major within the unit. Possibly weeks later—and we are talking about the early nineties—the brigade legal officer, a major or a captain, would get to see the file. I guess what I am trying to say is that if a CO thought it was in the best interests of the unit, even those sorts of matters he would have investigated within the unit and charges would be brought within the unit, and people who were not really skilled in any form of investigation would take care of these matters. So it is little wonder that people had some doubts about whether justice was being done and whether the interests of the vulnerable were being looked after. I do not mean to say that COs always, or even frequently, intentionally acted to try to hush up incidents. In most cases, they tried to use their considerable experience to make judgements about what they thought was best for their units. It is, however, my view that because of this approach the system of military justice, where it specifically involves the ability of the military to investigate itself, comes undone.

I have great faith that a properly resourced and commanded investigations unit, as we have today, is capable of conducting investigations to the necessary and required legal standards, but it has to be backed up by a willingness of unit commanders to have problems investigated quickly and appropriately. Unfortunately, I cannot see that such a willingness has existed at all times.

I would just like to say briefly that I commend the new government for bringing this bill of the previous government back after it lapsed in 2007. I have very limited time left, but my key point is that rank has its responsibilities within defence. Leaders have a responsibility to stand up for the weaker and more vulnerable. Unit cohesion is not actually served by sacrificing the vulnerable. In my time in defence I have seen some outcomes of a misguided belief that the unit’s standing was more important than a properly constituted investigation. From that beginning, all other aspects of hearings, outcomes and even punishments are affected downstream. Overall, the system has worked in the past, but in some cases it has not. Given the origins of this bill and what it proposes, I commend the bill to the House. (Time expired)

Peter Lindsay (Herbert, Liberal Party, Shadow Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Thank you to the current government for making sure that the Defence Legislation Amendment Bill 2008 came forward. We all know that it was introduced by the former government, and that it has the support of the opposition, the government and the military, so it is non-contentious. I propose to use a small amount of the parliament’s time to visit an issue that I am getting some constituent concerns about, in relation to the military justice system.

Again, this is something that both sides of the parliament should consider. There is no politics in this. It is important that things are seen to be done right. The issue is in relation to military boards of inquiry. I refer to three recent boards of inquiry, and one of them is current. The problem for defence is that defence is dammed if it does and damned if it does not in relation to making military boards of inquiry open and transparent.

I will give you an example. You will all remember the loss of a Black Hawk helicopter off Fiji last year. In fact, two members of the military were killed. One of them was from Townsville and one was from Perth. We all remember the bravery of Melissa Bingley on the loss of her husband, and how she handled herself. The problem was that the government asked the board of inquiry not to publicly release the footage of the helicopter arriving back at the ship. But in its wisdom the board of inquiry said, ‘No; things have got to be open, transparent and accountable.’ So we were treated to endless replays of the deaths of two members of the Australian Defence Force on our television screens during the evening news bulletins. And it went on for a long time. I found it quite sickening to think that these were images of two members of the ADF going to their deaths. That should never have been broadcast.

The point that I am making is that the boards of inquiry need to be open and transparent but they also need to think about the family members who are left behind. In relation to Jake Kovco’s inquiry—and that is still going, in another form—the military knew of the very sensitive personal matters that were behind that particular issue. They should never have been made public—they should not have. They could have been dealt with behind the scenes, but they became public, causing enormous stress to Private Kovco’s family.

In relation to the current inquiry into the death of Ashley Baker in Timor, who took his own life quite recently, I have had a significant number of emails from defence families in Townsville who knew Ashley, saying, ‘Why does all this graphic detail have to be made public?’ I think you all know what I am saying. The problem, of course, that defence has is that if it does not make things public you get the squawking classes who say, ‘They’re hiding something. They’re holding inquiries in secret.’ Defence is not like that. Defence does not cover up. If something has to be addressed, it will be addressed.

The senior leadership of defence is here in this building right now. They are very fine people. There is no way they would ever, ever cover things up and not act upon them. I think we have to have a little more trust in the senior leadership of the ADF and say to them: ‘Where there are sensitive matters, keep them sensitive—keep them out of the public arena. Think about the families and members of the ADF who see this salacious material being paraded on the national news.’ That is my point.

I do hope that the Australian public, the Australian media and the Australian Defence Force will have a rethink about what gets released from boards of inquiry. Certainly this particular bill is a very solid step in the right direction in relation to simplifying and redesigning the military justice system. I certainly will be supporting this bill. (Time expired)

Warren Snowdon (Lingiari, Australian Labor Party, Minister for Defence Science and Personnel) Share this | Link to this | Hansard source

I just need to advise that in the committee stage I will be moving an amendment, but I do not appear to have the documents from the Clerk in relation to the amendment motion. Firstly, may I thank the member for Paterson, the member for Fadden, the member for Cowan and the member for Herbert, from the opposition, for their contributions, and also Parliamentary Secretary Combet and the member for Werriwa, from the government side. As we know, the Defence Legislation Amendment Bill 2008 has the support of both sides of parliament. It was an initiative which was discussed in the last parliament and it has been resubmitted in this parliament.

The amendment bill will introduce some efficiencies in the process of summary justice. Essentially, the bill is designed to streamline the handling of trials where there is more than one offence but where those offences range in seriousness—that is, one, two or three. Where there are multiple offences, they will be bundled together and dealt with together according to the process for the most serious of the offences. This may be at the summary level, for all minor offences, or, for serious offences, before a single judge of the Military Court, or perhaps even a judge and jury. It also provides for more than one offender. Provision is also made for the defence military prosecutor to use his or her discretion in determining this process. I beg your pardon: I should not be reading that amendment.

Kevin Andrews (Menzies, Liberal Party) Share this | Link to this | Hansard source

If it would assist the minister, I think the process at this stage is that you sum up and then we will move into committee and can deal with the amendments.

Warren Snowdon (Lingiari, Australian Labor Party, Minister for Defence Science and Personnel) Share this | Link to this | Hansard source

I understand. It was my negligence that led me to use the wrong document.

Paul Neville (Hinkler, National Party) Share this | Link to this | Hansard source

Never!

Warren Snowdon (Lingiari, Australian Labor Party, Minister for Defence Science and Personnel) Share this | Link to this | Hansard source

But at least I admitted it. I again thank all those speakers. The Defence Legislation Amendment Bill 2008 recognises, perhaps a bit belatedly, that military personnel should have the same rights and protections as ordinary citizens. They should be protected by similar processes, recognising at the same time that military discipline must not be undermined.

The Military Court and the Director of Military Prosecution are now in place and independent of the chain of command. These are important fundamental reforms that were recommended by the Senate Foreign Affairs, Defence and Trade References Committee in its report of 2005. We also have some genesis in numerous other reviews, not least of which by Mr Burchett QC, Justice Abadee and parliamentary inquiries. The path has always been tortuous, but I think it is fair to say that there is unanimity in this place about the necessity for these changes. I again record my appreciation for the support of the opposition, bearing in mind that it was an initiative of the previous government in the first instance. We believe that, with this body of reform, the shortcomings of the military justice system that were identified by the committee will be overcome. The reforms will be underpinned by transparent, independent and fair processes. We also hope that, as a result of new fairness and independence, much of the behavioural problems at the base of past breaches will also be removed.

But there is more to do than this, and we acknowledge that. While we must be practical and recognise the realities of military discipline and its effectiveness in the field, there has been a traditional culture in some quarters which has not been conducive to better practice. Getting the balance right is therefore very important. For those who rue the loss of the old system, which was based on the old attitude of ‘march the guilty one in’, let me say that, unless this culture is diluted, the military’s image will continue to suffer. Australians, particularly young Australians—the notorious generation Y—have unprecedented choices in their careers these days and their interest in military service hinges on incentives and other attractions. I say that this equally applies to the administrative system for the handling of grievances. The process of military justice must be independent and beyond question. It must be fair and transparent and it must be seen to deliver justice expeditiously without undermining military discipline in any way. It may be true that it is more cumbersome, less efficient and more expensive than the old system but we make no apologies for that. In a democratic society, military personnel, like other citizens, have rights and in future those rights will be better protected.

In conclusion, the additional clarity we have sought to apply to the rules of evidence in this bill, as opposed to the bill’s lapsed predecessor, is an attempt to get the balance right. We do recognise the need to be practical about minimising legality. We recognise that discipline in the field must be ready and uncomplicated but, at the same time, some of the basic principles of gathering evidence ought to be instinctive and should be based on some very important principles. There are checks in the system—we know that—but we would rather get the evidence better the first time, if only for the sake of efficiency, to avoid delays and to reduce the consequential impact of mistakes on ADF personnel. I will address the amendment in the consideration in detail stage. I thank all those who contributed to this debate, and I commend the bill to the House.

Question agreed to.

Bill read a second time.