Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Link to this | Hansard source

My question is to Senator Abetz, the Minister representing the Minister for Defence. Is the minister aware that the High Court has given the green light to a constitutional challenge to the military’s disciplinary powers? Is it the case that such a challenge is likely to freeze the military justice system until the case is heard some time next year? Given this likelihood, can the minister explain how Defence will be able to uphold military discipline until the High Court challenge is heard and a decision is handed down? Doesn’t the challenge also mean that 62 accused personnel currently in the system will have to be relieved from duties on full pay whilst awaiting the chance to defend themselves?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I do not have a brief in front of me today, but I do recall reading a brief earlier in the week about it, anticipating that when it was in the news a question might have been asked, rather than quite a few days after the event. But allow me to try to recall the brief. Somebody has made a challenge to the High Court. I understand that the Chief Justice, on receiving it, asked the Full Court, or more members—a fully constituted High Court—to consider the claim. That claim will be, for want of a better term, stalled until such time as the High Court makes its determination. The other 62 cases—I think it is 62, from recollection, and I think that was the figure Senator Bishop referred to as well—will continue on the basis that, unless the High Court is challenged by the individual people, it will be business as usual.

If I am wrong as to my recollection of the brief in that regard, I will come back to the chamber, or possibly to Senator Bishop as quickly as possible, but that is my recollection of it. There will not be a freeze in relation to the other cases. Those cases will keep on, as planned, and those who are seeking justice under the current regime will be able to progress through that. However, if they want to avail themselves of their right to challenge the procedural system then that is their entitlement. We live in a country where we have the rule of law, and people are entitled to make these challenges—albeit that that does stall the inquiry in relation to those particular matters wherein people seek to avail themselves of those avenues of appeal.

Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Link to this | Hansard source

Mr President, I have a supplementary question arising out of the minister’s response. Doesn’t the High Court challenge expose the government’s failure to implement critical reform of the military justice system, as recommended by the Senate committee last year? Isn’t it the case that, had the government accepted the Senate inquiry’s recommendations, it would not now have to face the problem posed by this challenge, which leaves Defence with no means of upholding military discipline in the meantime?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

With great respect, that is not the case. I think the conclusion Senator Bishop would like to come to is not open to him on the facts and the circumstances. With great respect, whether or not an Australian citizen in the Australian military avails himself of a High Court challenge will not necessarily be related to the pontifications—albeit undoubtedly very good ones—of a Senate committee. To suggest that if all of these things had been adopted it would have avoided any High Court challenge is an attempt to look into a crystal ball, which is not an appropriate suggestion for the honourable senator to make. It is before the High Court. The High Court will determine the matter. The other matters will proceed, as I understand the situation, on the basis which would have been anticipated prior to the High Court challenge.