Wednesday, 5 December 2018
Defence Legislation Amendment Bill 2018; Second Reading
That this bill be now read a second time.
I am pleased to introduce the Defence Legislation Amendment Bill 2018.
The bill is designed to enhance the selection process and independence of Judge Advocates under the Defence Force Discipline Act 1982 and the general operation of the Defence Reserve Service (Protection) Act 2001.
Schedule 1 of the bill will amend the Defence Force Discipline Act to ensure greater transparency in the selection of judge advocates and to enhance their independence. Schedule 3 will also amend the Defence Force Discipline Act, making minor and technical amendments without affecting the operation of the act.
Judge advocates are senior military legal officers appointed by the Chief of the Defence Force or a service chief, who assist court martial members with the application of military law or sit as defence force magistrates in the trial of accused persons. Judge advocates are central to the proper operation of the superior tribunals.
The amendments proposed in this bill will allow the Chief of the Defence Force to determine selection criteria and a selection process for appointment to the Judge advocates panel in a notifiable instrument. This will provide for a more open and transparent selection process, including public advertisement.
The amendments will include mechanisms for termination and resignation of appointments to the Judge advocates panel, extend the maximum length of appointment from three years to five years and set remuneration in an equivalent manner to the Registrar of Military Justice and the Chief Judge Advocate.
The amendments will also make changes to the provisions dealing with the Chief Judge Advocate, who is appointed from the judge advocates panel by the Judge Advocate General, to provide him or her with administrative assistance. The amendments will: provide for the Judge Advocate General to determine, in a notifiable instrument, the selection criteria and selection process for appointing the Chief Judge Advocate; provide for termination of the Chief Judge Advocate position, consistent with standard provisions for termination of statutory appointments; and establish the position of Deputy Chief Judge Advocate to provide administrative assistance to the Chief Judge Advocate, including provision for the Judge Advocate General to determine the selection criteria and process in a notifiable instrument, and provision for their remuneration to be determined by the remuneration tribunal.
Together, these measures will modernise the relevant provisions in the Defence Force Discipline Act, help to attract a wider pool of suitable candidates, separate the judge advocates from potential command influence and maintain the judge advocate capability in the military justice system.
Schedule 2 of the bill will move the complaints and mediation scheme from the Defence Reserve Service (Protection) Regulations 2001 to the Defence Reserve Service (Protection) Act 2001. Other amendments will operate to repeal the existing regulations. Their content will either be moved into the act or included in rules made by a defence minister.
The Defence Reserve Service Protection Act provides for the protection of reservists in their civilian employment and education to facilitate their return to civilian life after rendering Defence service and for other related purposes.
It sets out entitlements and prohibitions that apply in relation to people who at any time render service as reservists. The act mitigates some of the employment and financial disadvantages reservists may face when rendering Defence service and facilitates their availability to undertake Defence service, thereby enhancing Defence capability.
An important feature of the management of the reserve workforce is the scheme for receiving and investigating complaints relating to matters arising under the act and for facilitating mediation of such matters. This scheme is currently set out in the Defence Reserve Service (Protection) Regulations 2001, and vests the Office of Reserve Service Protection with various powers to receive and investigate such complaints.
In the course of amending the act last year, the Senate Scrutiny of Bills Committee recommended that the complaints and mediation scheme, which contains significant matters, should be moved from the regulations into the act. This recommendation was subsequently accepted by the government and will be implemented by Schedule 2 of the bill.
While the new scheme in the current bill is based on the regulations, some changes have been made to simplify and modernise the complaint and mediation process. The most significant change is to vest the relevant complaint-handling powers in the Chief of the Defence Force. Previously, the Office of Reserve Service Protection received and handled complaints.
While that office will continue to operate on an administrative basis within the Department of Defence, it is appropriate for powers relating to complaints and investigations to reside with the CDF as the head of the Australian Defence Force to ensure clear line of accountability. There is a new requirement for CDF to prepare a report in relation to the administration and operation of the act for inclusion in the Defence annual report each year.
Under the bill, a person may make a complaint to the CDF about an alleged contravention of the act. An example is where a reservist complains that his or her civilian employment has been terminated due to their military service. The bill gives CDF the necessary flexibility to handle the complaint as he or she sees appropriate, including by conducting an investigation. Investigations may be conducted for any suspected contravention of the act, even where there is no complaint.
In investigating a matter, the CDF may give notices to individuals to produce information or documents. For example, a notice requiring a reservist's civilian employer to produce a termination notice or employment contract. Civil penalties may be imposed for failure to comply with a notice. This removes the former criminal offence and brings the offence in line with other civil penalty provisions in the act.
The bill will simplify the complaint-handling and investigation process by removing unnecessarily prescriptive provisions from the existing scheme. It will also authorise the CDF to disclose an investigation report or information to specific individuals, such as a complainant or other affected persons.
The bill will allow the CDF to provide dispute resolution services to facilitate a negotiated outcome in the event of a dispute under the act. This simplifies the previous mediation provisions which contained unnecessary detail about the qualifications of mediators and operation of mediation services, and also allows for dispute resolution services apart from mediation.
The bill will also provide for compulsory conferences, where the CDF can compel parties to attend a conference to advise them of their rights and obligations under the act, identify the issues in dispute, and facilitate discussion between the parties.
For example, a compulsory conference between a reservist and his or her former civilian employer regarding the termination of their employment.
The complaint-handling function is an important feature of Reserve protection, with over 1,400 inquiries relating to service protection issues received in the 2017-18 financial year—two-thirds of those from reservists and the remaining third from employers. These changes to the process will help to ensure that all complaints are dealt with swiftly, flexibly and fairly.
This bill moves to make some small but significant changes to Defence legislation.
I commend the bill to the House.