John Faulkner (NSW, Australian Labor Party, Vice-President of the Executive Council) Share this | Hansard source

in reply—In summing up the debate on the Military Justice (Interim Measures) Bill (No. 1) 2009 and Military Justice (Interim Measures) Bill (No. 2) 2009 I want to begin by thanking those senators who have contributed to the second reading debate and also the Senate for supporting what is a very urgent piece of legislation.

As we have heard, on 26 August 2009, the High Court declared that the provisions establishing the Australian Military Court were invalid. The purpose of bill No. 1 is to return to the service tribunal system that existed before the creation of the Australian Military Court. In summing up on the bills, I want to stress: this is an interim measure. These two bills contain those very important words in their titles. This is an interim measure until the government can legislate for a chapter III court, which it will do as a matter of priority.

To re-establish an effective military justice system, the pre-2007 Defence Force Discipline Act 1982 will be reinstated. These measures include courts martial and Defence Force magistrates, positions of Chief Judge Advocate, judge advocates and the Registrar of Military Justice, reviews and petitions in respect of both summary trials and trials held by courts martial or Defence Force magistrates and reviewing authorities.

Transitional provisions will be inserted into the DFDA to cover all matters that have been referred to the AMC but were not concluded prior to 26 August 2009. The provisions will also address the AMC office holders, including among other things provisions for their automatic transition to the relevant positions of Chief Judge Advocate, members of the Judge Advocates Panel and Registrar of Military Justice.

The main object of bill No. 2 is to maintain the continuity of discipline in the Defence Force in the light of the High Court’s decision. The principal mechanism by which this bill seeks to maintain the continuity of discipline within the ADF is by imposing disciplinary sanctions on persons corresponding to punishments imposed by the AMC and, to the extent necessary, summary authorities in the period between the AMC’s establishment and the declaration of invalidity by the High Court of Australia.

This bill does not purport to validate any convictions or punishments imposed by the AMC, nor does the bill purport to convict any person of any offence. Rather, the bill, by its own force, purports to impose disciplinary sanctions. The bill does not purport to impose any liability in relation to imprisonment and further, consistent with the exclusively disciplinary purpose of its provisions, the bill is expressed to have effect for service purposes only. In other words, the bill will not affect an individual ADF member’s civilian rights and entitlements. The bill recognises that there may be circumstances in which a person affected by a disciplinary liability imposed by the bill wishes to contest whether that liability should remain imposed. The bill gives all affected persons a right to seek review of their case and whether they should remain liable under the act, and the reviewing authority is given power to discharge persons from such liability. In cases where the disciplinary liability imposed by the bill relates to detention, a serious disciplinary measure—I think it is fair to say it is peculiar to the ADF—the bill requires automatic review by the reviewing authority to determine whether that disciplinary liability should be discharged.

Senator Brandis mentioned, in his contribution, legal advice the government has received from the Solicitor-General. The legal advice from the Solicitor-General, I can say to the Senate, is that the Commonwealth parliament can, in the exercise of the defence power, directly alter the rights and liabilities of members of the Defence Force by imposition of disciplinary punishments and orders.

The No. 2 bill is modelled, as we have heard, on a legislative approach upheld by the High Court in R v Humby; Ex parte Rooney (1973) 129 CLR, and that was again endorsed in Re Macks; Ex parte Saint (2000) 204 CLR 158. Sentences of imprisonment awarded by the AMC were served in civilian prison facilities but the punishment of detention is a peculiarly military punishment. It is served in dedicated detention facilities such as No. 1 Defence Force correctional establishment at Holsworthy and has as its primary purpose to rehabilitate ADF members  back into the Australian Defence Force.

As I have mentioned, and I want to restate very clearly to the Senate in this second reading debate, the government is in the process of establishing a military justice court which complies with chapter III of the Constitution. I can also assure the Senate again that it is my intention and the government’s intention that that be done as a matter of priority. I again thank senators for the contributions they have made to debate on this bill. I thank the opposition and those who sit on the crossbenches for their cooperation in enabling this bill to be dealt with as a matter of urgency in the Senate. I conclude m remarks by commending the bills to the Senate.

Question agreed to.

Bill read a second time.