Senate debates

Monday, 4 July 2011


Economics References Committee; Consideration

5:52 pm

Photo of David JohnstonDavid Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Hansard source

Mr Deputy President, I also congratulate you on your election to that position today. It is well deserved and is a very popular appointment. I sincerely congratulate you and look forward to attending the chamber and arguing the toss under your judicious and judicial guidance.

The Military Justice (Interim Measures) Act was introduced as an interim measure to sustain the military justice system while Defence attempts to address the issue of the trial of serious service offences following the invalidation of the legislation establishing the Australian Military Court in the famous case of Lane v Morrison, which was handed down on, I think, 26 August 2009. The minister at the time, Senator Faulkner, said that the legislative mechanics of establishing a correctly constituted military court was of the highest priority. Unfortunately, like most high priorities for this government, we have neither seen nor heard of a successful piece of legislation arresting this problem since. Two years later, here we are and nothing has been achieved. Minister Smith, in his second reading speech on 10 May 2011, acknowledged that there would be new legislation but that it was still in the formulation stage.

The Military Justice (Interim Measures) Amendment Bill 2011 is very, very important. It is a stopgap measure to provide for the appointment and also the remuner­ation and other entitlements of statutory office holders—namely, the Chief Judge Advocate and two judge advocates, each of whom are full-time members of the Australian Defence Force. Schedule 3 of the act currently provides a fixed tenure for up to two years. Of course, the expiry of that term is the problem for the government. It expires in September this year and, accordingly, this bill is necessary to continue the remuneration and entitlements of those statutory office holders.

The Australian Military Court was established in 2007 by legislation supported by both sides of the parliament. The court's establishment followed a series of Senate committee reports over a number of years. I was involved in the 2005 Senate Standing Committee on Foreign Affairs, Defence and Trade military justice inquiry, which made a number of very important and serious recommendations touching on the issue of the administration of military justice inside Defence. As I said, on 26 August 2009, the High Court of Australia handed down its decision in the case of Lane v Morrison. The case challenged the constitutional validity of the then Australian Military Court. The High Court found unanimously that the provisions of the Defence Force Discipline Act 1982, establishing the Australian Military Court, were invalid because the Australian Military Court purported to exercise the judicial power of the Commonwealth without meeting the requirements set out in chapter 3 of our Constitution.

As I said, the defence minister at the time said that the mechanics of establishing a correctly constituted military court were a priority. Here we are, two years later, and we are still waiting. This legislation is necessary because of the wait—because of the dilatory performance of the government on this. All stakeholders are keen to see the permanent establishment of a properly constituted military court to administer justice inside Defence.

The opposition supports the bill as drafted. I commend the bill to the Senate. The Senate has a very energetic and active role as a participant in the oversight of the military justice system and, as far as the opposition is concerned, that role will continue into the future.


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