Senate debates

Thursday, 10 September 2009

Military Justice (Interim Measures) Bill (No. 1) 2009; Military Justice (Interim Measures) Bill (No. 2) 2009

Second Reading

Debate resumed from 9 September, on motion by Senator Faulkner:

That these bills be now read a second time.

(Quorum formed)

11:08 am

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

I rise to speak on the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009. The first thing that I would like to do is thank the minister for the expeditious way he has dealt with a very unfortunate and not entirely unforeseen event—the High Court striking down, in the case of Lane v Morrison, the hybrid military justice court that was established in 2007. The minister has been confronted with a very significant problem, given that people have been prosecuted and are suffering detention and that some people have left the service because of charges pursued in the court. The High Court finding the court to be unconstitutional has created, for the minister, a very significant difficulty, one which the opposition is very keen to assist him in resolving.

I would like to revisit a little bit of the history here, because the parliament has been very, very clear, I believe. The parliament has sought to set out a path for the Australian Defence Force on this vital subject and has, to some degree, been ignored—not to a great degree but to a degree—and here we are today with the premier judicial court of the ADF having been struck down by the High Court.

We have, in the last decade, observed substantial changes in the administration of military justice in comparable jurisdictions around the world, particularly the United States, the United Kingdom and Canada. Australia has been conspicuous—or had been conspicuous, I should say—in not following the trend. There were very, very serious problems in Australia with respect to military justice. Indeed, many senators know this, having sat through a number of hearings and inquiries over the last seven years since I became a senator. We have seen: in 2002 and 2003, the State Coroner of Western Australia’s investigation into the Westralia fire; the 2001 Burchett inquiry into military justice in the Australian Defence Force; the 2001 Joint Standing Committee on Foreign Affairs, Defence and Trade ‘rough justice’ inquiry; the 1999 Joint Standing Committee on Foreign Affairs Defence and Trade military justice procedures in the ADF inquiry; the 1998 Commonwealth Ombudsman own motion investigation into how the ADF responds to allegations of serious incidents and offences; and the 1997 Abadee study into the judicial system and the Defence Force Discipline Act. They are the principal points of reference in what has been, I think, a very troubled and troubling history of military justice in the Australian Defence Force.

I remember the plight of an SAS soldier who was accused of war crimes. As a last resort and through his own strengths—and, I dare say, experiences—he came before the Senate committee and gave in-camera evidence as to what happened to him, and senators received a very wide-eyed understanding of what perils confront a person who gets on the wrong side of a process that is not equitable or just. We saw the parents and families of suicide victims inside the ADF. We saw the parents and families of those who had been victimised. We saw people who had been the subject of sexual harassment. And so it went on—a very sorry blot on what is an otherwise outstanding Defence Force.

The then Senate Foreign Affairs, Defence and Trade References Committee set about the task of trying to improve the situation. Indeed, in 2005, we set out a number of recommendations, including calling for an independent director of military prosecutions. We made 40 recommendations, and I want to talk about what some of those recommendations were. Recommendation 18 stated:

The committee recommends the Government amend the DFDA to create a Permanent Military Court capable of trying offences under the DFDA currently tried at the Court Martial or Defence Force Magistrate Level.

This was the next recommendation, 19:

The Permanent Military Court to be created in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality.

  • Judges should be appointed by the Governor-General in Council;
  • Judges should have tenure until retirement age.

So the parliament, including now-opposition senators, took a big, leading role through that committee, trying to chart a proper course so that we too could have someone like—if I can put it in common parlance—Major Mori, who stood up for David Hicks without fear or favour for his own career, because his Judge Advocate General’s Corps was completely separate from the military chain of command in the Marine Corps. Now, we cannot have a Major Mori in Australia, because what this hybrid court sought to do was stay within the chain of command.

A number of senators said to the department, and the government did the department’s bidding, ‘This will not work.’ We put them on notice that this was problematic. You cannot have judicial powers unless you adopt them pursuant to the Australian Constitution. But no; as is common, the Defence Force knew better! So here we are, with the Minister for Defence put in a most invidious position—I have the utmost sympathy for him and again I congratulate him on the way he has shouldered this burden that has been cast upon him—with the mess this has created for people, with penalties that have been dealt out illegally, unconstitutionally.

So it comes to this legislation. Now, the legislation is not perfect, and my good friend and colleague Senator Brandis will take up the cudgels to point to where there is cause for concern. Suffice it to say, this is the best that we could do as a transition. I give the minister my undertaking to assist him in whatever way I and we in the opposition can—and those members of the committee who are still very interested in this area—to assist in formulating a chapter III court that works properly, that is independent, so that we do not revisit this mess.

There are a number of concerns and issues with the method of resolution, none of which we can do much about. We simply offer words of caution. I will say what I am sure my friend and colleague Senator Brandis will say: detention is an area of great concern, as to whether we can substantially adopt what has gone before without acting judicially. So there are very technical issues here, but we want to be seen assisting, certainly not standing on the hose. In closing, the lesson to be learned is that the parliament was ignored and so here we are today.

11:19 am

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I rise to make a brief contribution, which I think will be in substantial agreement with the previous contribution, on the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009. The Australian Greens acknowledge the importance of acting very quickly to address the implications of the High Court invalidation of the Australian Military Court. We certainly appreciate the extreme importance of a functioning military justice system. The Australian Greens will therefore be supporting the government’s interim measures. The measures include reintroducing the former system of trials by court martial and Defence Force magistrates, and the interim legislation will also give effect to punishments—other than imprisonment—and orders that were imposed by the former Australian military court.

It is important to acknowledge, though, that the military justice system we are temporarily reverting to was abolished because it was deemed unsatisfactory. While the interim measures will seek to transpose some of the improvements adopted by the AMC—and we acknowledge that those attempts have been made—the system remains flawed and should be relied on only as a truly interim measure. So the key contribution from me this morning is really that we are seeking assurances from the government that it will be as brief an interim measure as is legislatively possible.

In establishing the AMC, the military justice system was subject to extensive review, as has been indicated, by the Senate Foreign Affairs, Defence and Trade References Committee. Following the recent High Court decision, the committee’s work, specifically the committee’s recommendation that the AMC be constituted as a chapter III court, has attracted considerable attention, as it has effectively been shown to be correct. It has also shown the importance of Senate inquiries and Senate review of these sorts of matters. The work of the committee and its recommendations should now, obviously, be revisited by the government and used to enable the government to act as quickly as possible to establish an impartial, transparent and independent military justice system.

Lane v Morrison has prompted a need for quick action, as these interim measures are. It has equally prompted a need to ensure that an effective and enduring military justice system be established. To balance the need to act, on the one hand, quickly and, on the other hand, effectively and put this matter to rest once and for all, it is essential that we recall our obligations under the ICCPR to ensure that all Australians are provided with the right to a fair trial. It is essential that we ensure that our military justice system meets the minimum guarantees for a fair trial, consistent with best practice in the civilian justice system and indeed with our obligations under international human rights law.

11:22 am

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | | Hansard source

As my colleague Senator Johnston has indicated, the opposition supports both of these bills. They are of a bipartisan character, and I want to congratulate the Minister for Defence, Senator Faulkner, for addressing this urgent issue with appropriate dispatch. The origin of the bills, as Senator Johnston has indicated, lies in the decision of the High Court on 26 August in Lane v Morrison, when the High Court held that the Australian Military Court, which was not established under chapter III of the Commonwealth Constitution, could not validly exercise judicial power for that reason and, because it was purporting to do so, its determinations were invalid.

There is a package of two bills, both of them interim. The first bill, the Military Justice (Interim Measures) Bill (No. 1) 2009, proposes to reinstitute on a temporary basis the pre-existing system of courts martial. The second bill, the Military Justice (Interim Measures) Bill (No. 2) 2009, in effect deems determinations by the Australian Military Court in relation to sentence but not in relation to findings of guilt to always have been valid. As I said, the opposition supports both bills, but I just want to say a word or two about the second bill—that is, the retrospective deeming of the validity of the imposition of penalties by the Australian Military Court. I must say that it occurred to me, when I heard of the government’s intention, that there may be a constitutional problem here because the imposition of penalties is not a legislative act but a judicial act on ordinary concepts. Therefore, the imposition of penalties by the parliament would seem to be ultra vires section 1 of the Constitution, which, as you know, Mr Acting Deputy President, confers upon this parliament legislative power but not judicial power. Nevertheless, at my request, Senator Faulkner has been good enough to furnish to the opposition access to advice taken from the Commonwealth Solicitor-General, Mr Gageler SC, which addresses this matter.

The method of this legislation and the approach taken to overcome that potential constitutional problem are set out on page 5 of the explanatory memorandum, in the second paragraph. The key clause in the No. 2 bill—that is, the deeming order in relation to punishments—is clause 5. The explanatory memorandum says:

The clause is modelled on the legislative approach upheld in The Queen v Humby; Ex parte Rooney (1973) 129 CLR 131. The clause does not change the status of the punishments and orders invalidly imposed or made by the AMC, but rather effects a direct legislative alteration of rights and liabilities in the exercise of the legislative power conferred on the Commonwealth Parliament under s 51(vi) of the Constitution. The purported punishments and orders of the AMC are merely historical facts by reference to which to the clause’s alteration of rights and liabilities is made to occur.

So the approach has been by this statute—that is, the No. 2 bill—to declare that punishments that were imposed were valid not because they were the result of a judicial act which the High Court said in Lane v Morrison was invalid but rather as an exercise of the defence power under section 51(vi) of the Constitution.

I have had a look at the principal decision relied upon in support of that approach, the decision of the High Court in 1973 in Humby; Ex parte Rooney, which was a case arising under the old Matrimonial Causes Act. In that case it had been earlier held that decisions by masters of state supreme courts in relation to matrimonial causes orders were, for various reasons which I do not need to go into, invalid. So section 5(4) of the Matrimonial Causes Act was enacted, containing provisions somewhat resembling clause 5 of this bill, deeming such orders always to have been valid. The basis of it was that, under the matrimonial causes and divorce power in section 51(xxii) of the Constitution, it was competent for the Commonwealth parliament to make orders altering the status of parties and that that was not an exercise of judicial power but an exercise of legislative power under, as I said, section 51(xxii).

The opposition, let me emphasise again, supports the bill, but I do flag a concern that there is a significant difference between a legislative enactment altering or giving retrospective effect to declarations of alteration of status and a legislative enactment giving retrospective effect to penalties. The three categories of penalties which apparently have been imposed by the Australian Military Court are demotions, fines and periods of internment. I can readily accept that a demotion is an administrative act, notwithstanding that, in the historical circumstances in which these demotions occurred, they were imposed as a result of an invalid judicial determination. Plainly, the parliament, under the defence power, could give retrospective effect to a demotion without validating the purported judicial act upon which the decision had initially, but only historically, been based. Plainly as well, as it seems to me, the imposition of a fine, as long as it did not constitute the acquisition of property on other than just terms and thus violate section 51(xxxi) of the Constitution, would also be regarded, well arguably, as an administrative act or perhaps a disciplinary act, not a judicial act.

I have a little more of a problem with treating an order for the internment of a person as other than a penalty imposed in consequence of a judicial act. I would of course respect of the confidentiality of Mr Gageler’s opinion, which was the basis on which it was furnished to the opposition, but appropriately the opinion was guarded in relation to that matter, although on balance he concluded that that would also fall within the type of legislative scheme approved by the High Court in Humby; ex parte Rooney. The opposition will support this legislation and we hope that it is constitutionally valid.

In closing, let me make one other point. In May this year, the government announced that it would abolish the Federal Magistrates Court. The reason given by the Attorney-General when he announced the government’s decision to abolish the Federal Magistrates Court was entirely to do with the relationship between the family law jurisdiction exercised by that court and the Family Court of Australia. So the report upon which the government’s decision was based, the so-called Semple report, concluded that the Federal Magistrates Court should be abolished because that would promote efficiencies in the family law system. As I said at the time and I say again, the government, in making that decision, gave the wrong answer to the wrong question. The question that it should have addressed is whether it was useful or serviceable for the Commonwealth to have a chapter III court of general jurisdiction in summary matters, not merely family law matters but all summary matters.

I know my friend Senator Faulkner is now seized with considering what is to happen after the interim measures expire and how the military justice system can be re-established on a surer footing. It seems to me, with respect, Mr Acting Deputy President, that this, the Lane v Morrison decision, is as plain an example as anything could be of the unwisdom of doing away with the Federal Magistrates Court, of doing away with a federal court of general summary jurisdiction. When the interim measures expire and the government has to decide with what judicial apparatus to replace the Australian Military Court and take over from the interim measures embodied in these bills, the obvious solution would be to have a military division of the Federal Magistrates Court or certain dedicated federal magistrates to deal with military justice matters.

This is but one example of the tremendous utility to the Commonwealth of having a general federal court of summary jurisdiction that can be divisionalised and can deal with all matters, including military justice matters, arising under Commonwealth law. Because of the government’s decision to do away with that court, it would seem that that option—the obvious option—has now been foreclosed. I should say that no legislation has yet been introduced into the parliament to give effect to the government’s decision to terminate the existence of the Federal Magistrates Court. I invite the government, on the basis of the lessons we have all learned from the Lane v Morrison decision of the High Court and for the reasons I have explained, to revisit that decision.

11:33 am

Photo of Mark BishopMark Bishop (WA, Australian Labor Party) Share this | | Hansard source

The two bills before us today, the Military Justice (Interim Measures) Bill (No. 1) 2009 and the Military Justice (Interim Measures) Bill (No. 2) 2009, are quite urgent. I am sure the government appreciates the cooperation of the opposition in facilitating their speedy passage. The bills, as has been said by a number of speakers, are urgent simply because the High Court has found the Australian Military Court is constitutionally invalid. That is because, as we all know now, it is not established under chapter III of the Constitution but under the Defence Force Discipline Act. As a consequence, every action taken by the court since its inception is necessarily invalid. Those actions are to be revalidated by these bills, as made clear by both the EM and the various speakers to date.

I have spoken numerous times on this matter over the last five or six years, including on the adjournment earlier this week, to put some context into the debate, so today I will be very brief. The first bill re-establishes the previous court martial system for an interim period until a chapter III court can be legislated for. The second bill aims, necessarily of course, to maintain the continuity of military discipline in the meantime. The first bill reinstates courts martial and Defence Force magistrates. It establishes the positions of Chief Judge Advocate and the Registrar of Military Justice. It also includes the establishment of reviews and petitions in respect of summary trials and trials by magistrates and courts martial. It also re-establishes reviewing authorities.

The Judge Advocate-General effectively plays the role of the former Chief Military Judge. In this context, it has been very interesting to revisit the original report of the Senate Foreign Affairs, Defence and Trade Committee and go through its findings chapter by chapter. That original report, which is really the genesis of everything that has occurred since then, made serious findings as to the administrative systems, the disciplinary system and, more particularly, the investigatory services at the root of all the problems that latterly emerged in both the administrative and the disciplinary systems. There certainly have been significant reforms to date, on both the admin side and the disciplinary side, although it is fair to comment that the work to fix up ATFIS and the investigatory services is but a work in progress and best described as slow progress. Hence it has been necessary to recreate, as an interim measure and hopefully only for a short period of time, the old systems of courts martial and Defence Force magistrates, both of which had very adverse findings made against them in that Senate report in 2005. Whilst there are probably now different personnel and there have been behavioural and cultural changes with new organisational patterns put into place, I suspect that if there was any suggestion to go back to the old system, other than as an interim measure, it would be simply unacceptable to go down that path.

The bills make provision for the transition of appeals on foot, but other consequential amendments to other acts are also required. These are set out in part 2 of the bill and relate to the Defence Force Discipline Appeals Act, the Judges’ Pension Act and the Migration Act. Again, there is a change in the terminology with ‘court’ to ‘court martial’ or ‘military tribunal’. In other words, the first bill seeks to restore much of the previous judicial machinery in the invalid legislation, but within the authority of a military tribunal, not a court. We surmised that for many years but we have now been reminded that that is a fact.

The second bill seeks to deal with penalties under the new interim regime to make sure that they are consistent with the invalid scheme. This is important for the sake of continuity. Importantly, the second bill seeks to preserve the disciplinary measures formally imposed by the now invalid court. The explanatory memorandum on clause 5 states:

In respect of punishment purportedly imposed or order purportedly made, the clause declares the rights and liabilities of all persons to be, and always to have been, the same as if the amended DFDA had been in force and the punishment had been imposed by a general court martial ...

For those concerned at the law on this matter, I refer them to page 5 of the EM. And for those who might think that just as the court has been invalidated so too are its penalties, let me again quote the EM. It says:

... the rights and liabilities of all persons are ... the same as if the punishment or order of the AMC had been imposed or made by a properly constituted court martial and confirmed by command review.

It is likewise for dismissal.

No doubt this interim bill of stopgap measures will contain some uncertainties, but at least a gap in the military discipline scheme has been filled. In my view—and this has been made clear by opposition speakers and will be made clear by the minister in due course—there is no other option in the short term, but it is salutary to acknowledge that not all of the reforms will be wasted by this means.

Finally, it is appropriate at this stage, as we enter a new chapter in addressing the problems of military justice, to place on record—and in no particular order—the fine work that has been done by Senator Hutchins, former Senator Sandy Macdonald, Senator Marise Payne and Senator David Johnston in their former capacities and lives. They have over many years taken a continuing interest in matters associated with military justice. They have devoted many hours to this work and have participated in various inquiries concerning it. They have all made significant and sustained contributions to this issue over time, and it is worthwhile to place that on the record.

11:39 am

Photo of John FaulknerJohn 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.