Bills Digest no. 48 2006–07
Defence Legislation amendment Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Defence Legislation amendment Bill
2006
Date introduced: 14 September 2006
House: House of
Representatives
Portfolio: Defence
Commencement: Sections 1 to 3
and Schedules 2 and 3 commence on the day the Act receives Royal
Assent. Schedule 1 commences on a day to be fixed by proclamation,
or by 1 October 2007, whichever is the earlier.
The purpose of this Bill is to give effect to the
Government response tabled on 5 October 2005 to certain
recommendations of the 2005 Senate
report into the effectiveness of Australia's military justice
system by the Senate Foreign Affairs, Defence and Trade References
Committee (the Senate Report).
This bill would establish a permanent Australian Military Court
(AMC) under the Defence Force Discipline Act 1982. This
would replace the current system of Courts Martial (CM) or Defence
Force magistrates (DFM). Current military offences are restructured
into Class 1, 2 and 3 offences, Class 1 being the most serious.
The bill will also amend the regulation making power in the
Defence Act 1903, to facilitate the creation of a 'Chief
of Defence Force Commission of Inquiry'. The Government agreed in
its response to the Senate Report that the Australian Defence Force
(ADF) conduct independent and impartial inquiries into notifiable
incidents including suicide, accidental death or serious
injury.
The Government has noted that further amendments to the DFDA
will be tabled in the future, such as a right of appeal to hearings
and findings of Summary Authorities, to be handled by the AMC.
This bill was referred to the Senate Foreign Affairs, Defence
and Trade Legislation Committee on 14 September 2006 with an
original reporting date of 10 October, extended to 27 October.
Submissions to that inquiry can be accessed
here and the final report can be accessed
here. The Committee recommended that the bill be withdrawn and
amended.
The Senate Standing Committee on Scrutiny of Bills examined the
present bill in its Alerts Digest No. 11 dated 11 October 2006
which can be accessed
here. It made comment on the military jury provisions as
referred to below in the commentary on Item 11, Schedule 1,
proposed new sections 122 and 124.
The Explanatory Memorandum states that many submissions to the
Committee during the military justice inquiry raised serious
concerns about the fairness of military justice proceedings:
The concerns stemmed from the location of judge
advocates and DFMs within the military chain of command and the
implications for their (actual and perceived)
independence.(1)
At recommendations 18 and 19, the Senate Report on military
justice proposed that the Government amend the DFDA to create a
permanent military court to replace offences tried by CM and
DFM.
This bill partially implements those recommendations. The
Government states that the changes are intended to provide for the
maintenance of effective discipline and the protection of
individuals and their rights .(2)
Australia s military justice system
The military justice system exists to maintain discipline and to
reinforce the chain of command in the Australian Defence Force
(ADF). In a submission to the Senate inquiry into the system
conducted in 2003-05, the then Chief of the Defence Force, General
Peter Cosgrove AC MC, explained:
Establishing and maintaining a high standard of
discipline in both peace and on operations is essential for
effective day-to-day functioning of the ADF and is applicable to
all members of the ADF. The unique nature of ADF service demands a
system that will work in both peace and armed conflict. Without an
effective military justice system, the ADF would not function
(3)
The military justice system has two distinct but interrelated
elements: the discipline system and the administration system. They
provide the framework for (discipline) investigation and
prosecution of offences committed under the Defence Force
Discipline Act 1982 and (administrative) maintenance of
professional standards in the ADF and investigation of certain
occurrences, such as accidental deaths of ADF personnel.
Offences dealt with under the discipline system can be grouped
into three categories: 1) offences peculiar to the defence forces,
such as absence without leave, disobedience of a command, and
endangering morale; 2) offences similar or identical to civil
offences, but that relate to service personnel or equipment, such
as assault of a superior or subordinate, destruction or damage of
service property, or dealing in narcotic goods on a base; and 3)
offences imported from civilian criminal law, such as murder,
manslaughter and theft of (non-service) property.(4) The
incorporation of civilian criminal offences into the military
discipline system enables these offences to be dealt with should
they occur when ADF members are overseas in circumstances where an
adequate criminal law framework is absent (for example, in a
war-torn country in which law and order has broken down) or if the
application of host country law is undesirable (for example, if the
death penalty were to apply).(5)
Under the existing discipline system, serious offences in the
first two (military specific) groups are investigated by military
police and may be dealt with by service tribunals which may be
either Courts Martial or Defence Force Magistrates. A court martial
is more formal, and is heard by presiding officers (of a higher
rank than the accused) with a judge advocate to assist with legal
matters; the court martial is not required to give reasons for
findings or for the sentence imposed. Defence Force Magistrates,
who are legal practitioners in uniform, hear the overwhelming
majority of offences that might be considered serious; they sit
alone when hearing cases, and give reasons on the determination of
guilt or innocence and for the sentence imposed.(6) Less
serious offences may be heard by a Summary Authority, who is
superior officer, given limited powers of punishment; or, for
officer cadets or any member of the ADF below non-commissioned
rank, a Discipline Officer who may impose punishment without trial
(for minor offences, and with no permanent conduct record
generated).(7)
For the third group of offences, which are those imported from
civilian criminal law, a service tribunal may hear the matter only
with the prior consent of the Commonwealth Director of Public
Prosecutions (DPP). Usually, serious criminal law offences, such as
murder and sexual assault, are referred to the DPP for
investigation and prosecution.(8)
The administrative system is not an alternative to the
discipline system. It deals with a different class of occurrence or
wrongdoing within the defence forces. The intention is to ensure
that the expected standards of professional judgement, command and
leadership are maintained for the purpose of operational
effectiveness. The administrative system enables the ADF to take
action against a member or members whose professional conduct falls
below the standard (while not having committed an offence), and the
options for action include counselling, formal warnings, censures,
removal from command, and discharge from the service.
Over the past decade, a number of court challenges and publicly
aired complaints brought by former and serving personnel, their
families and other community members suggested that the military
justice system was flawed. Significant official inquiries
included:
- the 1997 Study into the Judicial System under the Defence Force
Discipline Act Brigadier the Hon Mr Justice Abadee;
- the 1998 Commonwealth Ombudsman s Own Motion Investigation
into How the ADF Responds to Allegations of Serious Incidents and
Offences;
- the 1999 Military Justice Procedures in the ADF by the
Joint Standing Committee on Foreign Affairs, Defence and
Trade;
- the same committee s 2001 Rough Justice? An Investigation
into Allegations of Brutality in the Army s Parachute
Battalion;
- the 2001 Burchett QC Inquiry into Military Justice in the
Australian Defence Force;
- and the 2002-03 West Australian Coroner s investigation of fire
on board HMAS Westralia.
Each of these inquiries identified flaws in the ADF military
justice system and processes, and recommended changes. As General
Peter Cosgrove put it, while some of the recommendations were acted
upon, there appeared also to be an element of resistance within the
ADF, which viewed the military justice system as sound, even if it
has sometimes not been applied as well as we would like
.(9)
In March 2003, the Defence Legislation Amendment Bill 2003 was
introduced into Parliament. It contained amendments to the
Defence Force Discipline Act 1982 (DFDA) in relation to
military justice (primarily a response to the Abadee report) and
amendments to other acts in relation to areas such as the cadet
services, the wearing of medals and false representation of oneself
as a returned serviceman/woman, and the Defence Home Owner
Scheme.(10)
After the second reading, in October 2003 the Senate referred
the issue of military justice to the Foreign Affairs, Defence and
Trade References Committee for inquiry. Its report, The
Effectiveness of Australia s Military Justice System, was
released in June 2005.
The Foreign Affairs, Defence and Trade References Committee was
instructed to inquire and report on the effectiveness of the
military justice system in a number of areas. These included
determining whether the system provided impartial, rigorous and
fair outcomes for ADF members; mechanisms to improve transparency
and public accountability of military justice procedures; the
handling of inquiries into peacetime deaths in the ADF, from any
cause; and allegations of mistreatment of ADF members and of drug
abuse. The committee was also to assess the impact (if any) of
previous reports on the military justice system, and determine
whether recommendations were acted upon effectively. Several well
known cases were identified for special
evaluation.(11)
The committee heard evidence from former and serving members of
the ADF, including senior officers, family members, and other
interested parties. It concluded that the ADF has proven itself
manifestly incapable of adequately performing its investigatory
function .(12) Investigations were found to be
inadequate as a result of poorly trained and on occasion
incompetent investigating officers .(14) Boards of
Inquiry were lacking in transparency and independence. Processes of
investigation and trial were found to have placed great stress on
individuals, leading to loss of confidence, loss of employment,
suicidal thoughts, and attempted and actual suicides. ADF members
were reluctant to lodge complaints about superior officers,
non-commissioned officers or their peers because they doubted the
effectiveness and impartiality of the system. Review processes were
inadequate. The report on military justice declared: The committee
believes that the military justice system in its current form
clearly needs a comprehensive, ground up reform.
(15)
Key recommendations in the report included better training of
investigating officers, improved handling of complaints and
investigations, establishment of a statutorily independent Director
of Military Prosecutions and an independent Permanent Military
Court, and the creation of a statutorily independent grievance and
complaint review body. This was aimed at ensuring that the
prosecution, defence and adjudication functions should be conducted
completely independent of the ADF .(16)
The Government issued its response on 5 October 2005. It agreed
that 30 of the 40 recommendations should be accepted in whole, in
part or in principle.(17) Many could be dealt with by
new or enhanced processes within the ADF. The civil and military
leaderships of the Department of Defence expressed their commitment
to providing a fair and equitable workplace that includes a
transparent and cohesive military justice system
.(18)
The report had gone so far as suggesting that all serious
criminal offences and military offences that had a close equivalent
in civilian criminal law should be referred to civilian authorities
for investigation and prosecution. On this, the Government
disagreed strongly, stating:
The purpose of a separate system of military
justice is to allow the ADF to deal with matters that pertain
directly to the discipline, efficiency and morale of the military.
To maintain the ADF in a state of readiness, the military must be
in a position to enforce internal discipline effectively and
efficiently. Breaches of military discipline must be dealt with
speedily and, sometimes, dealt with more severely than would be the
case if a civilian engaged in such conduct.(19)
For the ADF to maintain its separate system of military justice,
a framework for statutorily independent trial and review was
required. The Government agreed that the ADF should have a
permanent military court capable of trying offences under the DFDA,
in place of a Court Martial or Defence Force Magistrate. This bill
is intended to establish this framework.
While the Senate did recommend a permanent military court, it
also recommended that this court be constituted under Chapter III
of the Constitution and not have jurisdiction over criminal
matters. As noted, military discipline includes offences imported
from civilian criminal law, such as murder, manslaughter and theft
of (non-service) property.(20)
Briefly, Chapter III of the Commonwealth Constitution outlines
the requirements for the exercise of judicial power, providing for
the creation of judicial tribunals, the appointment of judges, and
judge's conditions of tenure. Chapter III courts are independent
from the parliament and the executive, as are the judges appointed
to them. The independence of the judiciary is guaranteed by the
judge's security of tenure once appointed, federal judges are
completely free from influence or interference when exercising the
judicial function.
In R v Kirby; Ex Parte Boilermakers' Society of
Australia (1956) 94 CLR 254 Dixon CJ, McTiernan, Fullagar
and Kitto JJ at 270 held that:
... when an exercise of legislative powers is
directed to the judicial power of the Commonwealth it must operate
through or in conformity with Chap. III. For that reason it
is beyond the competence of the Parliament to invest with any part
of the judicial power any body or person except a court created
pursuant to s.71...
The basic principle is that only Chapter III courts can
authorise detention on the basis of the proper adjudication of
criminal guilt. This basic principle has been stated by the High
Court in the case of Chu Kheng Lim v
Minister for Immigration (1992) 176
CLR 1.
The High Court has determined that courts martial stand as
exceptions to the general separation of powers principle contained
in the Constitution, but has not conclusively determined the basis
or extent of the exception. In each of the three previous
challenges to the DFDA, the High Court has split on the reasoning
upholding the validity of court martial jurisdiction with regard to
the conditions under which military tribunals may validly exercise
a judicial function when dealing with civilian criminal
charges.(21)
A recent decision of the High Court, Re
Colonel Aird; Ex parte Alpert [2004] HCA
44 (9 September 2004) raises several issues surrounding the
validity of the defence power jurisdiction relied on for the AMC.
By a 4-3 majority, the High Court held that it was a valid exercise
of the Commonwealth's legislative power under s51(vi) of the
Commonwealth Constitution for the Parliament to make the soldier's
alleged conduct overseas a Service offence. The majority
interpreted the defence power broadly and linked the charges to the
maintenance of Service discipline. This aspect of the bill dealing
with disciplinary issues within the ADF where there is no civilian
equivalent charge is therefore on solid constitutional ground.
In the course of hearing the Alpert appeal on 3 March
2004, several Justices indicated that they were prepared to hear
arguments regarding the validity of courts martial under Chapter
III of the Constitution but the parties to the case chose not to do
so.(22)
In obiter dicta(23) Justice Kirby warned against the
extension of military tribunal's capacity to try civilian
offences:
That conclusion could effectively exclude
Australian criminal courts from their usual role in such trials. It
could authorise a switch of the trials of defence personnel for
crimes of rape to military tribunals, away from the ordinary
courts, whose adjudications members of the public may more
conveniently view, learn from and criticise. In practical terms,
the election by a complainant could deprive service personnel in
Australia of the ordinary right of jury trial in such matters. It
could exclude citizens, as jurors, from participation in such
trials. This Court may, as it pleases, ignore these consequences of
expanding the ambit of service offences outside Chapter III. But it
is a step opposed to past legal authority. It is antagonistic to
very long constitutional history. It is also inconsistent with the
Court's recent doctrine on Chapter III. And it is antithetical to
the functions of citizen jurors and the rights of service
personnel, enjoyed as Australian citizens, and long observed in the
courts of our legal tradition.(24)
While there is no domestic Federal bill of rights in Australia,
Australia is still bound under international law by its obligations
under Article 14(1) of the International Covenant on Civil and
Political Rights to provide a fair and impartial trial in criminal
matters.(25)
As noted, the Government response did not accord with the Senate
s recommendations in this regard. The AMC relies on the same
jurisdiction as the present courts martial and Defence Force
Magistrates. This is explained in a note to proposed new
section 114. The Explanatory Memorandum states that the
following philosophies and characteristics of the AMC are reflected
in the Bill to explain (rather obliquely) the reason the Government
declined to set up a Chapter III court:
The AMC is not an exercise of the ordinary
criminal jurisdiction. More is required than the ability to
understand specialist evidence at a trial. A knowledge and
background into the military environment and culture is
required;
The AMC is a 'service tribunal' under the DFDA and
therefore is part of the military justice system, the object of
which is to maintain military discipline within the ADF;
The AMC must be deployable and be able to sit in
theatre and on operations. A principal factor of the AMC that is
peculiar to the Defence Force is the military preparedness
requirements and physical demands of sitting in an operational
environment;
A knowledge and understanding of the military
culture and context is essential. This includes an understanding of
the military operational and administrative environment, the unique
needs for the maintenance of discipline of a military force in
Australia and on operations and exercises overseas. The AMC must
have credibility with, and acceptance of, the Defence Force;
Military judges, as serving members of the
Australian Defence Force, will still be subject to the provisions
of the DFDA and ordinary discipline in the performance of their
non-judicial duties, such as training.(26)
The Judge Advocate General submission
to the Senate inquiry into military justice provides an overview of
recent High Court case law on the status of disciplinary hearings,
as well as a summary of the developments in Canada, UK and NZ,
where there is a requirement to hold fair and impartial trials
under domestic bills of rights.
The legislative arrangements for the AMC and for
the transition of existing members of the judge advocates/Defence
Force Magistrate (JA/DFM) panels, must be considered against
relevant legal developments, and particularly the history of High
Court challenges to the military jurisdiction. I reviewed these in
my submission to the MJI. In general terms, a significant minority
of the Court has consistently been concerned about the conduct of
criminal trials by Service tribunals because the tribunals are not
established under Chapter III of the Constitution, and might not be
thought to afford the protections provided by those courts. Indeed,
my suggestion to the MJI was that the AMC should be established
pursuant to Chapter III, although I did express the view that this
could possibly be problematical having regard to section 80 of the
Constitution. I understand that subsequent advice to Government was
to the effect that this would be so. Under the circumstances, I can
have no concern about the decision to establish the AMC under the
Defence power rather than Chapter III, but that fact does mean the
risk of a successful Constitutional challenge will depend entirely
upon the statutory safeguards guaranteeing the judicial
independence and impartiality of the AMC.(27)
In response to Senate Committee questions, the Department of
Defence has stated that it is necessary to have a parallel justice
system when the ADF is deployed, and that judicial independence can
be guaranteed by security of tenure even in a fixed term renewable
appointment. Further, Defence points to the requirement for consent
by the Commonwealth Director of Public Prosecutions for the
institution of DFDA proceedings for certain serious offences
committed within Australia (existing section 63 which is retained
by this bill).(28) The full response from Defence as
submitted by The Hon Bruce Bilson is commended to readers and can
be accessed
here.
Defence emphasises that it received independent advice on these
constitutional issues from the Chief General Counsel, Australian
Government Solicitor, Mr Henry Burmester QC. This advice was
referred to by the Judge Advocate General in the transcript
of the oral hearings on 9 October 2006, however, it is not publicly
available.
These issues, and the recent High Court jurisprudence on the
validity of the military justice system are dealt with at length in
the 2005 Senate report at Chapter Two. As noted by the Law Council
in its
submission to the current Bill, the High Court has said in
relation to non-military courts, that there is no single ideal
model of judicial independence, personal or institutional. Within
the Australian judiciary, there are substantial differences in
arrangements that bear upon judicial independence. (29)
In other words, this may only be an issue that can be resolved by
the High Court.
On 11 October 2006, the Hon Chief Justice Murray Gleeson AC,
ordered that an application challenging the constitutional validity
of service tribunals be referred to the Full Court of the High
Court. The hearing is expected during the 2007 February
sittings.
The ALP has stated that this bill is fatally flawed and must be
withdrawn. In a statement by Senator Mark Bishop, Shadow Minister
for Defence Industry, Procurement and Personnel, the following
features of the bill were featured as flaws :
- likelihood of inexperienced judges deliberating in serious
offences
- deliberately designed to limit the number of potential
candidates as judges
- five-year, fixed term appointments for military judges,
effectively narrowing the field of candidates to an elite few
facing retirement
- majority verdicts, with juries consisting of just six military
personnel (ranked at the same level or above as the defendant) able
to return majority verdicts of four-two, and
- no provision for the court to be one of
record.(30)
Senator Bishop stated that Military discipline can't be upheld
unless the system is just; this bill is minimalist in its approach
to justice and calls for a lower standard for justice in the
military.
In a
supplementary report on the provisions of this Bill by the
Senate Committee on FADT tabled on 27 October 2006, the ALP
Senators elaborate in detail the party s reasons for opposition to
the bill in its entirety.
When speaking to the tabling of the military justice report,
Australian Democrat Andrew Bartlett noted:
The Defence Force is a unique body, unlike any
other. In that sense, it is special, but the people who serve in it
are also special, and they certainly deserve justice wherever
possible. It must be emphasised that the view of the Defence Force
that the military justice system is sound was not concurred with by
the committee. That is the fundamental issue.(31)
The Explanatory Memorandum states that the initial funding for
these amendments has been identified and will be provided from
current allocations.(32)
Commentary on individual provisions has been incorporated
below.
Schedule 1, Part 1 contains the main amendments
to the Defence Force Discipline Act 1982 (DFDA) and the
Defence Force Discipline Appeals Act 1955 (DFDAA).
Items 1 to 19 make amendments to the
Defence Force Discipline Act 1982 (DFDA).
Items 1 to 10 amend the existing definition
section, section 3 of the DFDA, to incorporate the establishment of
the AMC.
Item 11 repeals Divisions 3, 4 and 5 of
Part VII of the DFDA that deal with trials by
Court martial (CM), Defence Force magistrates (DFM) and the
nomination procedures for members of a CM and DFM. It also creates
new Divisions 3 and 4.
New Division 3 creates and establishes the
jurisdiction of the AMC (proposed new sections 114 to
121).
New Division 4 provides for a Military Jury
(proposed new sections 122 to
124).
Item 13 inserts new Division 2 of Part
VIII dealing with trials by the AMC (proposed new
sections 132A to 132F). All new class 1, 2 and 3 offences
are outlined in new Schedule 7, contained in
item 19.
Item 14 inserts new Subdivision
B concerning use of video and audio links in the AMC
(proposed new sections 148A to 148F).
Item 16 inserts new Subdivision
C rules of procedure for service tribunals
(proposed new sections 149 to 149A).
Item 17 substitutes a new Division 2 of
Part XI dealing with the Chief Military Judge
(proposed new sections 188AA to 188AN) and
new Division 2A which deals with Military Judges
(proposed new sections 188AO to 188BA).
Item 18 inserts new
section196C dealing with the AMC annual report.
Items 20 to 31 make consequential amendments to
the Defence Force Discipline Appeals Act 1955.
Part 2, items 32 to 254 make consequential
amendments to a range of legislation, primarily to the Defence
Act 1903.
Part 3 contains the application and
transitional provisions (items 255 to 264).
Schedule 2 makes amendments to the Defence
Force Discipline Act 1982 in relation to Defence Counsel
Services and to the Defence Act 1903 in relation to the
Chief of the Defence Force Commission of Inquiry.
Schedule 3 makes technical amendments to the
Defence Force Discipline Appeals Act 1955 to remove
gender-specific language.
Proposed new section 114 creates the Australian
Military Court. It provides that the AMC will consist of the Chief
Military Judge and such other military judges, all of whom hold
office in accordance with the Act.
The Explanatory Memorandum states:
The notes to this clause make it clear that the
AMC is not a court established under Chapter III of the
Constitution (with all the features of such a court) and that it is
a service tribunal (as defined in section 3 of the DFDA). Akin to
its predecessors (CMs and DFMs) it is therefore part of the
military justice system, the object of which is to maintain
military discipline within the Australian Defence
Force.(33)
This is confirmed by proposed new section 115
which provides that the jurisdiction of the AMC will be to try any
charge against any person (i.e., a charge of any offence under the
DFDA against any member of the ADF or an authorised Defence
civilian). This is almost identical to existing sections 115 and
129 of the DFDA which currently provide for the jurisdiction of CM
and DFM trials, including no jurisdiction to try a charge of a
custodial offence as set out in
existing section 54A.
Proposed new section 116 provides that for the
purposes of the exercise of its jurisdiction, the AMC is to be
constituted by a single Military Judge (MJ). Proposed new
subsection 116(2) allows more than one military judge to
sit and exercise jurisdiction concurrently, ie several trials or
other proceedings may happen at the same time both in Australia and
overseas.
Proposed new section 117 provides that the AMC
may sit at any place in or outside Australia and also that it may
order that a proceeding or part of the proceeding can be conducted
or continued at another place that is specified in the order. This
provision will ensure that the court is deployable to any overseas
operational areas.
Proposed new section 118 provides that the
Registrar of the AMC (the Registrar) must refer a charge to the AMC
and the Chief Military Judge (CMJ) (rather than the Judge Advocate
General as in the old system) must nominate a military judge to try
the charge. The Registrar must also refer a conviction to the AMC
to take action under Part IV (punishments and orders) where the
Director of Military Prosecutions (DMP) has requested the Registrar
to do this.
Proposed new section 121 provides that the AMC
will be staffed by defence members made available by a Service
chief or persons engaged under the Public Service Act 1999
and made available by the Secretary of the Department, to provide
administrative and management services in connection with trials
and charges under the DFDA.
New Division 4 provides for a Military Jury,
based on provisions relating to membership of a court martial in
existing section 116 of the DFDA.
Proposed new section 122 provides that there
will be 6 members with at least one holding a rank that is not
lower than the naval rank of commander, or the equivalent ranks of
lieutenant-colonel or wing commander on a military jury. The rank
requirement in this section and proposed section 123 is contingent
on the exigencies of the service, decided by the CDF. Decisions are
to be by two thirds majority which is current practice.
Proposed new section 123 contains the
eligibility requirements for a membership of a military jury.
Proposed subsection 123(1) provides that if the
accused is an officer or a defence member, then a juror must also
be an officer of not less than 3 years service and at a rank equal
to or higher than the accused. If the accused is non-commissioned,
the juror must be an officer or a warrant officer (Navy), warrant
officer class 1 in the Army or warrant officer in the Air Force,
for a period not less than 3 years service (proposed
subsection 123(2)).
The Explanatory Memorandum states that:
The introduction of non-commissioned officers
(NCOs) to be eligible to serve on a military jury is new; it
reflects the responsibilities and status of senior NCOs and a
desire to broaden the eligibility of potential military jurors in
deference to the rank of an accused. It also alleviates previous
difficulties experienced in securing only officers to serve on
court martial panels.(34)
In a
submission to the current Senate inquiry, Mr Douglas McDonald
raises concerns that the members of the jury could be inexperienced
in military matters and receive insufficient or no training for the
task. He notes members of junior rank could serve on a jury and
suggest they may be influenced in their vote by senior officers. He
submits:
I believe that the membership of a military jury
should be limited to officers holding a rank that is not lower than
Major (E) and while I would like to suggest the addition of who are
holding the appointment of, or have previously been appointed as, a
Summary Authority, the subject of competence needs to be
addressed.(35)
Proposed new section 124 provides for the
determination of questions of fact by a military jury. Where a
service offence (as defined in the background section of this
Digest) is to be tried by a military judge and jury, the jury will
be responsible for determining the guilt, innocence or unsoundness
of mind of the accused. When a jury is deciding these matters, it
must sit without any other person present. Decisions are to be made
by a clear two thirds majority.
Majority decision-making by a jury has been the subject of
pointed commentary on this Bill.
In considering this bill, the Senate Standing Committee for the
Scrutiny of Bills Committee noted the 2005 Report of the Senate
Foreign Affairs, Defence and Trade References Committee and in
particular that Committee s concerns regarding the means through
which the need for operational effectiveness is balanced against
the individual rights of Defence members and Defence civilians,
within the military justice system. In relation to Item 11,
Schedule 1, proposed sections 122 and 124, the Committee
stated:
By virtue of proposed subsection 115(1) of this
bill the Australian Military Court has jurisdiction to try any
charge against any Defence member or Defence civilian. The
Committee notes that the classes of offences to be heard by a
Military Judge and jury could potentially include offences of
treason, murder and manslaughter. The Committee is concerned that
the provision for a military jury to be composed of six members
(proposed section 122) and to determine questions of guilt on the
agreement of a two-thirds majority (proposed subsection 124(2)) is
an infringement on the rights of an individual.
The Committee notes that the constitution of a
military jury and the manner in which questions are to be
determined differs substantially from the constitution and
operation of civilian juries in criminal matters, which generally
require, as a minimum, the agreement of 10 out of 12 jurors and
then only in specific circumstances and with the approval of the
judge. As the explanatory memorandum is silent on the basis for the
proposed constitution and operation of a military jury, and the
extent to which the rights of the individual have been balanced
against the particular needs of the military justice system, the
Committee seeks the Minister s advice as to the
justification for this apparent variance from accepted
practice.
Pending the Minister s advice, the Committee
draws Senators attention to the provisions, as they may be
considered to trespass unduly on personal rights and liberties, in
breach of principle 1(a)(i) of the Committee s terms of
reference.(36)
The response by the Department of Defence states there are no
major policy concerns with instituting majority verdicts for
military juries, although the High Court decision of Cheatle v
The Queen (1993) 177 CLR 541 which held that that unanimous
verdicts are required for federal criminal matters is
noted.(37)
Item 13 repeals existing sections 132 to 135
(which relate to the procedures of trials by CM and DFM trials) and
inserts proposed new sections 132A to 132F.
Proposed new section 132A provides for the
trial of Class 1, 2 and 3 offences and how they are to be dealt
with. The options are to be tried by a military judge alone
(equivalent to an old DFM trial), or a military judge and jury
(equivalent to a CM). A military judge alone will determine the
sentence in all trials.
All class 1, 2 and 3 offences are outlined in new
Schedule 7, contained in item 19.
As noted above, offences dealt with under the discipline system
can currently be grouped into three categories, which have now been
restructured into Class 1, 2 and 3 offences:
- offences imported from civilian criminal law, such as murder,
manslaughter and theft of (non-service) property (Class 1)
- offences similar or identical to civil offences, but that
relate to service personnel or equipment, such as assault of a
superior or subordinate, destruction or damage of service property,
or dealing in narcotic goods on a base (Class 2); and
- offences peculiar to the defence forces, such as absence
without leave, disobedience of a command, and endangering morale
(Class 3).
Class 1 offences are the most serious military
offences. Trial by jury is mandatory. The Explanatory Memorandum
notes:
The Government response to the Senate report
specifically identified some offences that require trial by a
military judge and jury. These include, mutiny, desertion,
commanding a service offence and offences committed with the intent
of assisting the enemy. As these offences have a particular Service
flavour, in that they go to the very core of maintaining discipline
and morale, commission of any of these offences would result in a
lessening of that discipline and morale. Trial by military judge
and jury will therefore be mandatory.(38)
An offence that is specified as a Class 2 offence in
Schedule 7, or one that is not a Class 1 or 3 offence, is a Class 2
offence (item 6). For Class 2 offences, trial will
be by military judge and jury, except where the accused elects to
be tried by military judge alone through the Registrar of the
Australian Military Court.
Class 3 offences are those that are either
listed in Schedule 7 as a class 3 offence or those that attract a
maximum punishment of not greater than 5 years imprisonment are not
listed as class 1 or 2 offences in Schedule.
For a Class 3 offence, while the default position for trial will
be by military judge alone, the accused may elect to be tried by a
military judge and jury under the following conditions:
where the maximum punishment is not greater than
5 years imprisonment
the offence is prescribed, or
if the offence is able to be tried under section
61 of the DFDA (Territory offences), the offence could be tried
summarily in a civilian court (item 7).
The Judge Advocate General in his
supplementary submission to the current Senate inquiry on this
bill states that:
The explanatory memorandum suggests that minor
territory offences will fall into class 3.
The Bill does not achieve this, given that the
proposed Schedule 7 effectively places all territory offences into
either class 1 or class 2.
I am concerned that the operation of proposed
section 132A(3) is such that:
a. There is no option for the Director of Military
Prosecutions (DMP) to refer class 3 offences for trial by military
judge and jury; and
b. While the default position under the section is
one of trial by military judge alone, there is no limitation on the
maximum sentence that may be imposed.(39)
Proposed new sections 132B, 132C, and 132D
outline the procedures that must be complied with for a military
judge and military jury, or a military judge sitting alone.
Item 14 inserts new Subdivision B,
sections 148A to 148F that will provide for the use of
video and audio links in the AMC in respect of proceedings and
evidence similar to sections 47A to 47E of the Federal Court of
Australia Act 1976.
The conditions for the use of such evidence set out in
proposed new section 148C include:
- appropriate AMC courtroom facilities must be in place
- appropriate facilities must be in place at the remote person's
location to allow eligible persons present in the courtroom to see
and/or hear the remote person, and
- conditions that are prescribed by the AMC rules of procedure or
any other conditions imposed by the AMC must be fulfilled.
Proposed new section 148D outlines how
documents may be put to a remote person in circumstances where the
document is either present in the courtroom or at the remote
person's location.
New section 148F ensures that the operation of
the Evidence and Procedure (New Zealand) Act
1994 is not affected by the new subdivision.
Item 15 inserts new Subdivision
C 'Rules of Procedure for service tribunals'
Item 16 repeals and substitutes existing
section 149 of the DFDA.
Proposed new section 149 introduces the concept
of Summary Authority Rules which are separately
established to the rules of procedure applicable to the AMC. The
rules are legislative instruments for the purposes of the
Legislative Instruments Act 2003, made by the Judge
Advocate General.
Proposed new section 149A inserts the Rules
of the Australian Military Court. The rules are legislative
instruments for the purposes of the Legislative Instruments Act
2003, made by the Chief Military Judge.
The fact that the new AMC will not be a court of
record(40) has been the subject of criticism from the
JAG, although the existing requirement to keep records has been
retained (existing section 148).(41)
The Defence Department has responded that this requirement is
unnecessary and inappropriate to the AMC as a service
tribunal.(42)
Item 17 repeals and substitutes
Division 2 of Part XI headed Chief Military
Judge.
Proposed new section 188AA establishes the
position of the Chief Military Judge (CMJ).
Proposed new section 188AB provides that the
CMJ will be responsible for:
- ensuring the orderly and expeditious discharge of the business
of the AMC
- managing the administrative affairs of the AMC, and
- other matters conferred on him or her under the Act.
The Minister will appoint the CMJ by written instrument and the
CMJ holds office on a full time basis for a period specified in the
instrument of appointment, but for a period not exceeding 5 years
(proposed new section 188AC).
The CMJ position is what the Explanatory Memorandum terms a
terminal one, because there can be no reappointment
(proposed new subsection 188AC(3)).
Proposed new section 188AM provides that a person
ceases to be a member of the Defence Force when he or she has
ceases to hold office as the Chief Military Judge.
The Explanatory Memorandum posits that this is intended to
overcome any perception of executive preferment that may influence
decision making, specifically in the context of possible subsequent
employment following a term as CMJ :
The appointment will provide security of tenure
and judicial independence. Legal advice has indicated that there
are three essential requirements of judicial independence, namely,
security of tenure, financial security (that is the independent
determination of remuneration, discussed in proposed section 188AG
below) and institutional independence, all of which are catered for
in this Bill. Furthermore, a term appointment for the CMJ is based
on factors peculiar to the Defence Force, that is, the hardship of
the job, particularly in operational
environments.(43)
Further, proposed new section 188AJ provides
that a CMJ is not eligible for promotion in rank over the period
that he or she is the CMJ.
Proposed new section 188AD outlines the
necessary qualifications for the position of CMJ. The person must
be:
- enrolled as a legal practitioner for not less than 5
years,
- a member of the Permanent Forces or a Reserve member rendering
continuous full time service at the naval rank of Commodore, or the
rank of Brigadier or Air Commodore, and
- able to meet his or her individual service deployment
requirements.
Proposed new section 188AE allows the Minister
to request the Chief of the Defence Force (CDF) to establish an
independent selection committee to give the Minister suitable
suggestions for the role of CMJ. This process is purely
discretionary and relies on the Minister making the request,
however if the Minister makes a request, this process must be
followed by the CMJ. The Explanatory Memorandum states that:
Although it is not legally required, the statutory
recognition of such a Committee and the process required for the
appointment of the CMJ is desirable to demonstrate the independence
of the selection process and its transparency.(44)
Proposed new section 188AG provides for the
remuneration of the CMJ to be determined by the Remuneration
Tribunal pursuant to the Remuneration Tribunal Act 1973.
Otherwise, if no determination is in place then the remuneration
(including allowances) will be as prescribed.
Proposed new section 188AH provides for the
recreation leave entitlements of the CMJ which is to be determined
by the Remuneration Tribunal. Any other leave is to be granted and
on the terms and conditions determined by the Minister.
Proposed new section 188AI prohibits the CMJ
engaging in employment outside the duties of his or her office.
Proposed new section 188AK allows the CMJ to
resign his or her appointment, in writing to the Minister.
Proposed new section 188AL outlines the
circumstances when the appointment of the CMJ may be terminated.
The Explanatory Memorandum states that:
These are based on standard termination provisions
contained in Commonwealth legislation and they refer to
circumstances to which the proper evidentiary and natural justice
principles will be required to be applied.(45)
Proposed subsection 188AL(1) provides the
Minister with the discretion to terminate the CMJ's appointment in
circumstances including misbehaviour, physical or mental incapacity
or failure to meet service deployment requirements.
Proposed subsection 188AL(2) provides for the
automatic termination of the appointment of the CMJ in the
circumstances outlined. These include where the CMJ ceases to be
enrolled as a legal practitioner, becomes bankrupt, ceases to be a
member of the Permanent Forces or a Reserve member on continuous
full time service or is absent from duty without leave for a
period.
Proposed new section 188AN provides for an
acting CMJ. Only a full time military judge may be appointed to act
as the CMJ where there is a vacancy in the office or where the CMJ
is absent from duty or where he or she is unable to perform his or
her functions.
Division 2A outlines the provisions for
Military Judges (MJ).
Proposed new section 188AO states that there
are to be Military Judges of the AMC.
Proposed new section 188AP provides that an
appointment of a military judge must be made in writing by the
Minister, on either a full or part time basis, for a period not
exceeding 5 years. There must be two full time military judges and
no more than eight part time military judges. However, it is not
necessary for all of the part time positions to be filled at any
one time.
Proposed new section 188AQ discusses the
possibility of the reappointment of a military judge for another 5
year term in exceptional circumstances. In considering a
reappointment, the Minister must receive and consider a report by
the CMJ on the workload and the level of experience of the AMC in
light of existing or likely vacancies. The Minister must be
satisfied that a military judge satisfies the necessary
qualification requirements for appointment. Once a military judge
has been reappointed for a period, he or she will not be eligible
for any further reappointment. The reappointment of a military
judge is to be for a minimum period of 3 years, but not more than 5
years. It is not intended that a military judge serve for an
overall period of more than 10 years.
The Explanatory Memorandum states:
Advice received by the Government is to the effect
that there is nothing incompatible with judicial independence in
allowing a reappointment of a military judge beyond an initial
term, provided the existence of the power cannot reasonably be seen
to cause the person seeking reappointment to be beholden to the
executive in discharging their judicial duties. Furthermore, a term
appointment with the opportunity for reappointment is not
incompatible with the necessary independence required of a military
tribunal.
Therefore, the intent of proposed section 188AQ is
that the reappointment of a military judge will only be possible
where the Minister considers that the level of experience on the
Court would be reduced to an extent that may be detrimental to the
effective operation of the Court if a particular military judge
were not reappointed, taking into account the Court's existing and
future demands.(46)
In his submission to the current Senate inquiry, The Hon Justice
L.W. Roberts-Smith, Major General, Judge Advocate
General of the Australian Defence Force states:
13. It is astounding that in implementing my
suggestion for a permanent military court made with a view to
shoring up the military jurisdiction from future High Court
challenge, (and because such an initiative had the potential to set
the bench mark for common law Service tribunals internationally),
it is now proposed effectively that the military judges will have
even less independence, so far as their terms of appointment are
concerned, than they have under the existing arrangements. They are
currently appointed for three year terms by the JAG, but it is on
the basis that the terms will be automatically renewed subject to
good behaviour in the judicial sense of that term. Brigadier
Westwood [the Chief Judge Advocate (CJA)] gave evidence to that
effect at the MJI hearings. To now move to five-year renewable
terms, which are not automatic (and indeed, must be sought to be
justified as exceptional), considerably reduces the actual and
perceived independence of the judges of the AMC and greatly impedes
the AMC s ability to develop experience and
excellence.(47)
The Law Council of Australia also focused on the proposal that
military judges must be military personnel who would be appointed
for five years, noting that only in exceptional circumstances would
judges be reappointed and all others would be compulsorily retired.
The Council submitted that these conditions would dissuade most
suitable candidates from applying, as few would want their career
cut short, and the pool would be quickly depleted. As well, all
experience gained would be lost with each five-year turnover of
judges. Finally, the Council had concerns about perceived or actual
independence from the chain of command:
The possible extension of five-year terms may lead
to the perception that military judges are beholden to the military
chain of command or (the politicians who appoint
them).(48)
The Explanatory Memorandum states:
Therefore, the intent of proposed section 188AQ is
to reflect that the reappointment of a military judge may be made
only in exceptional circumstances, minimising any perception of
executive preferment in a reappointment process, with the
reappointment subject only to the Minister being satisfied that the
operational requirements of the court justify the
reappointment.
Proposed new section 188AR outlines the
qualifications required of a military judge. A full time Military
Judge (subsection 188AR(1)) must be:
- enrolled as a legal practitioner for not less than 5 years
- a member of the Permanent Navy, Army or Air Force or a Reserve
member rendering continuous full time service
- at a rank not less than the Navy rank of commander, or the
equivalent ranks of lieutenant colonel or wing commander, and
- able to meet his or her individual service deployment
requirements [consistency with 188AD].
Proposed subsection 188AR(2) outlines the
qualifications for a part time Military Judge. These are identical
to a full time member except the person would be a member of the
Reserve, not rendering continuous full time service.
Proposed new section 188AS outlines the
selection process for a Military Judge. This provision is identical
in terms to section 188AE discussed above in
respect of the Chief Military Judge, including the fact that is a
discretionary process.
Proposed new sections 188AT to 188BA are almost
identical to sections 188AG to 188AN discussed above in respect of
the CMJ. Part time military judges may also hold outside employment
provide it does not conflict with their duties.
Proposed new section 188AZ provides for the
termination of the appointment of a Military Judge. If full time, a
military judge is automatically terminated if he or she ceases to
be a Permanent member or a Reserve member on continuous full time
service. In the case of a part time military judge, if he or she is
not a member of the Reserves who is not rendering continuous full
time service, then their appointment will be automatically
terminated (the bankruptcy and absence from duty grounds are also
included in this proposed section).
Proposed new section 188BA notes that a person
will cease to be a member of the Australian Defence Force when they
cease to hold office as a Military Judge but there is a provision
allowing a Military Judge to be subsequently appointed as CMJ.
Item 18 inserts new section
196C which requires the CMJ to prepare an annual report as
soon as practicable after each 31 December. The report will relate
to the operation of the AMC and the Rules of the AMC and any
related statistical information.
Items 20 to 31 contain amendments to the
Defence Force Discipline Appeals Act 1955 consequential to
the establishment of the AMC. The amendments reflect the
availability of a right to appeal from the AMC to the Defence Force
Discipline Appeals Tribunal (the Tribunal) by allowing :
- an offender appellant to appeal a court order, conviction
and/or punishment within 60 days (item 25 and 26);
and
- the Director of Military Prosecutions to appeal against a court
order or punishment (item 25).
A new development is that the proposed amendments would enable
the Director of Military Prosecutions, in addition to an offender
appellant, to be able to refer a question of law to the Federal
Court (item 30, amended subsection
51(1)) or appeal from the Tribunal to the Federal Court on
a question of law (item 31, amended
subsection 52(1)).
Part 2, items 32 to 254 contain further
consequential amendments to Defence and other portfolio
legislation, including the Migration Act 1958 mainly in
relation to replacing the new terminology of the AMC.
Items 134 to 169 provides for an
amended Part IX of the DFDA which provides for the
review of proceedings of service tribunals. Part IX has been
amended to make it clear that it only applies to review of
proceedings of summary authorities and not the AMC. Further
legislation is foreshadowed by the Government relating to summary
authorities.
Part 3 (items 255 to 264) contains the
application, transitional and savings provisions. If a process has
commenced under the old system of CM or DFM trial, it should be
completed in accordance with that system. Which system applies
during the transitional period will be determined by whether the
service offence was committed before or after the commencement of
the legislation and what action the Director of Military
Prosecutions has initiated in respect of that offence.
A regulation making provision has also been included which will
ensure that any matters that may not have been covered in the
substantive provisions can be covered in regulations.
Schedule 2, Part 1, provides for Defence
Counsel Services which will continue the requirement in the DFDA to
produce of a list of legal officers and to arrange legal
representation for an accused. Item 1 amends
existing subsection 101F(2) to replace the reference to Judge
Advocate General with Chief of the Defence Force , so that it will
now be the responsibility of the CDF to maintain this list rather
than the Judge Advocate General.
Item 3 inserts proposed subsection
101F(2A) which allows the CDF to delegate the function
under clause 101F to a military position, that has been
organisationally staffed through the establishment of the new
Director of Defence Counsel Services. The delegation will be at the
rank of Navy captain or equivalent. Item 4 amends
section 137(1) to substitute the responsibility for organising
legal representation from a superior authority to CDF
(proposed subsection 137(4)).
Schedule 2, Part 2 will amend existing
paragraph 124(1)(gc) of the Defence Act 1903 which enables
regulations to be made in respect of the appointment, procedures
and powers of courts of inquiry, boards of inquiry, inquiry
officers and inquiry assistants. A reference to 'Chief of Defence
Force Commission of Inquiry' will be included in this paragraph,
which will enable such a Commission to be established under the
Defence (Inquiry) Regulations 1985.
Subsection 124(2A) will also be extended to
include a reference to the 'Chief of Defence Force Commission of
Inquiry'. This means witnesses appearing before such as inquiry
cannot rely on the self-incrimination privilege, but the evidence
is not admissible in any court except in relation to giving false
testimony (proposed subsection 124(2C)).
The Law Council was highly critical of these amendments in its
submission to the current Senate inquiry as it felt that the
substance of such a body should be scrutinised by Parliament in a
Bill rather than contained in regulations. The Council felt that
the matters of concern have a propensity to seriously impede the
Defence operations . These matters included:
a. Mandatory requirements compelling CDF to
conduct a COI in every case of the death of a member of the Defence
Force. This is of particular concern with suicide and road traffic
deaths unrelated to defence service, which are cases more properly
suited, at least at first instance, to State Coroners. This will
require an acknowledgement of the primacy of civil over military
jurisdiction;
b. the lack of any provision for the
interrelationship between the coronial jurisdiction and COIs. This
may produce curious conflicts in suicide cases where Defence cannot
arrogate to itself the right to conduct a COI before the coroner
has determined that the cause of death was in fact suicide. At very
least CDF should have the power to delay a COI until cause of death
has been determined. Without such a power, the results of the COI
may be problematic, particularly where willful homicide is
suspected. However, it could also be argued that if the CDF is to
have the power to delay a COI, that officer should also have the
power not to conduct one at all.
c. the requirement that the President of a COI to
be a civilian with judicial experience may not always be possible
in practice. The Law Council is advised that there is a potential
for the ADF to conduct more than 40 COIs per year, or to have to
conduct them. It is doubtful that it will be able to procure that
many presidential candidates with judicial experience. Many Chief
Justices of courts within the system have declined to make their
judges available for even the most significant Royal Commissions
for very good reasons. Where civilian inquiries are concerned,
there is a very long history of the more usual practice of using
retired judges and currently practising or retired Queen s or
Senior Counsel for this role. It is submitted that the pool of
commissioners should be expanded to include such persons in order
to make the proposal workable;
d. flaws in the proposed procedures for
terminating COIs;
e. a failure to deal satisfactorily with vacancies
in the membership of COIs, proposed practice and procedure of COIs
and appearances.(49)
Schedule 3 contains various technical
amendments to provisions of the DFDAA relating to gender specific
language.
One of the main points of contention still raised by this Bill
is whether the decisions of the AMC would be found by the High
Court to be constitutionally valid if challenged, which will depend
on whether its proceedings meet basic standards of procedural
fairness. The Senate Committee identified the following parts of
the Bill as raising concerns in regard to fairness and
impartiality, dealt with in detail in the Main Provisions section
above include:
- the jurisdiction of military court and the possibility of a
successful High Court challenge to its validity (military tribunals
are not constituted in the same manner as courts created under
Chapter III of the Constitution);
- the 5-year fixed terms and the possible adverse effect on the
judicial experience of the court and its ability to attract high
quality legal officers;
- the renewable five-year terms, which are not automatic and
which, according to the JAG, 'considerably reduces the actual and
perceived independence of the judges of the AMC';
- the provisions for terminating an appointment which, under
specified circumstances, provides for the minister to terminate an
appointment not the Governor-General on address by both Houses of
Parliament;
- compulsory retirement for MJs from the ADF upon ceasing office
as a MJ and the likelihood that this provision would diminish the
attractiveness of the position and dissuade suitable appointees
from applying for the office;
- the lack of incentive for an accused to opt for the more
administratively convenient trial by MJ alone;
- the composition of a military jury especially in light of the
jurisdiction of the AMC extending to criminal offences committed
overseas it should be noted that the Senate Standing Committee for
the Scrutiny of Bills expressed concerns about the constitution of
the proposed military jury and sought advice from the
Minister;
- the failure to stipulate that the AMC was to be a court of
record;
- the transitional arrangements from the current service
tribunals to the Military Court;
- the desirability of the Director of Defence Counsel Services
(DDCS) being established as an independent statutory position;
and
- the provisions relating to the Chief of Defence Commission of
Inquiry being contained in regulations and not the
Act.(50)
The Committee concluded:
1.27 The committee
determined that the proposed AMC would not achieve the level of
independence and impartiality needed to ensure a fair and effective
military justice system. Because the committee understands that the
bill is to be either amended or re-drafted, it decided not to give
a comprehensive account of the evidence presented to it and its
analysis of that evidence. The submissions and supplementary
submissions to the inquiry, the committee's questions on notice to
Defence and the transcript of the public hearing provide the
grounds necessary for the government to review the legislation.
In his submission to the current Senate inquiry, The Hon Justice
L.W. Roberts-Smith, Major General, Judge Advocate
General of the Australian Defence Force conveys disappointment with
the provisions of the bill, suggesting it is deficient in terms of
judicial tenure which could effect its constitutionality, but also
that it is a lost opportunity:
10. It is with considerable disappointment that I
note that the approach taken in the Bill is to establish the AMC as
a tribunal akin to the Administrative Appeals Tribunal (AAT), in
terms of status and independence, rather than as a court of record
in the sense in which that term is generally understood. The AMC
will have complete (and exclusive) Australian jurisdiction over
members of the ADF outside Australia. Given the present and likely
future tempo of operations and exercises, it is entirely
foreseeable, if not likely, that there will be charges of the most
serious offences (such as rape or murder) against members of the
ADF at some stage. The AMC would be the only Australian court which
would have jurisdiction. The notion that such charges would be
dealt with by a body described as a tribunal and equivalent to the
AAT is extraordinary. It occurs to me that this is the one
opportunity likely to present itself for many years for the
Parliament to establish a world class military court with proper
independence and status. Quite aside from the risk associated with
a lesser course, it would be a great pity for that opportunity to
be wasted.(51)
This Bill has not found favour with some of the families
affected by failures in military justice investigated by the
previous Senate inquiry, such as Charles Williams, the father of
Private Jeremy Williams:(52)
The new proposed system is once again, the
military in this country investigating itself. These people are not
trained extensively in investigative procedures in any case. But
more importantly they have a vested interest to cover up, to
conceal by any number of means the root cause of the problem, such
as the bastardisation, the bullying, the beatings that were
occurring at Singleton.(53)
However, Senator Robert Hill, former Defence Minister has
defended the new arrangement as a marked improvement:
The issue here is to make it work better. We've
put a great deal of effort into refinement of the system so that it
can work better. There'll never be a perfect system. The civilian
alternative is not perfection, but we know that it can be
administered better, the investigations can be more effective, the
administration processes can be much improved and that's what will
now occur and over a period of two years I hope that both within
and without the force, there'll be greater confidence in the system
that we're putting in place.(54)
Parliament may wish to consider whether the bill requires
revision to quarantine those few provisions which could face
constitutional challenge so that the AMC scheme as a whole is not
at risk. Any questions of constitutional validity arise only in
relation to the adjudication of serious civilian criminal charges
(Class 1 offences) by the AMC, particularly when deployed overseas.
As noted, even though the body is named the Australian Military
Court, it is not a court, and has carefully been designed not to be
a court in order to meet service discipline needs. This may have
ramifications for the provision of justice to individual ADF
defendants facing serious criminal charges. As these cases are
likely to be very rare (indeed, the Senate inquiry found only one
instance of ADF personnel facing serious criminal charges whilst
deployed overseas in the whole history of the ADF), perhaps another
arrangement could be made to remove any doubt about the
satisfaction of constitutional requirements.
- Explanatory Memorandum, p. 1.
- ibid, p. 1.
- General Peter Cosgrove, quoted in the Senate s Foreign Affairs,
Defence and Trade References Committee report, The Effectiveness of
Australia s Military Justice System, Commonwealth of Australia,
Canberra, 2005, p. 10.
- Andrew D Mitchell and Tania Voon, Justice at the sharp end
improving Australia s Military Justice System , UNSW Law Journal,
Vol. 28:2, 2005, p. 396.
- The Effectiveness of Australia s Military Justice System, pp.10
11.
- Mitchell and Voon, op. cit., pp. 399 400.
- ibid.
- ibid., p. 402.
- Cosgrove, ibid., p. xxvi.
- See: Bills Digest No. 183 2002 03: Defence Legislation
Amendment Bill 2003, Parliament of Australia, Parliamentary
Library,
http://www.aph.gov.au/library/pubs/bd/2002-03/03bd183.htm
- These were the death of Private Jeremy Williams, who committed
suicide during training at the School of Infantry in 2003; the 1998
fire on board HMAS Westralia, in which four sailors were killed;
the suspension and suicide of Cadet Sergeant Eleanore Tibble, Air
Training Corps, in 2000; allegations of misconduct by members of
the Special Air Service in East Timor in 1999; and the
disappearance at sea of Acting Leading Seaman Cameron Gurr, HMAS
Darwin, in May 2002
- The Effectiveness of Australia s Military Justice System, p.
52.
- ibid., p. xxiii.
- For a rundown of the findings, see ibid., pp. xxi-xxiv.
- ibid., p. li.
- Government Response to the Senate Foreign Affairs, Defence and
Trade References Committee, Report on the Effectiveness of
Australia s Military Justice System , 5 October 2005,
http://www.defence.gov.au/mjs/docs/MJI_GOVERNMENT_RESPONSE_4oct052.pdf
- R. C. Smith AO, PSM, Secretary, Department of Defence, and Air
Chief Marshal A. G. Houston AO, AFC, Chief of the Defence Force,
Year in Review , in Department of Defence, Annual Report 2004-05,
Canberra, 2005, p. 9.
- Government Response to Report on the Effectiveness of Australia
s Military Justice System, p. 14.
- Andrew D Mitchell and Tania Voon, Justice at the sharp end
improving Australia s Military Justice System , UNSW Law Journal,
Vol. 28:2, 2005, p. 396.
- Re Tracey; Ex parte Ryan
(1989) 166 CLR 518; Re Nolan; Ex parte
Young (1991) 172 CLR 460; Re Tyler; Ex
parte Foley (1994) 181 CLR 18.
- Ex parte Alpert Re Aird & Ors [2004] HCA Trans 42
(3 March 2004). Gleeson CJ, Kirby, McHugh and Gummow JJ all raised
Chapter III issues in the course of hearing arguments from the
prosecutor and respondents.
- Obiter dicta are the remarks of a judge which are not necessary
to reaching a decision, but are made as comments, illustrations or
thoughts. They are persuasive but do not create a binding precedent
for future decisions.
- Kirby J, Re Colonel Aird; Ex
parte Alpert [2004] HCA 44 (9 September 2004) at para.
113.
- Article 14(1) states: In the determination of any criminal
charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by the
law. Australia signed the ICCPR on 18 December 1972 and ratified it
on 13 August 1980.
- Explanatory Memorandum, p. 2.
- Submission P3, 19 September 2006, p. 2.
- Dept of Defence response to questions raised, 9 October 2006,
pp. 1 2.
- As per Gleeson CJ in Forge v Australian Securities and
Investments Commission [2006] HCA 44 (5 September 2006),
citing North Australian Aboriginal Legal Aid Service Inc v
Bradley (2004) 218 CLR 146 at 152 [3]).
- Senator Mark Bishop, Deliberate Flaws Emasculate Bill For
Military Court , media statement, 10th October 2006.
-
Tabling speeches. Senate, Debates, 16 June 2005, p.
11.
- Explanatory Memorandum, p. 1.
- Explanatory Memorandum, p. 2.
- Explanatory Memorandum, p.6.
- Submission P2A, 26 September 2006, pp. 2 3. Note response by
Defence Department dated 9 October 2006, p. 8, paragraphs 44 to
47.
- Alerts Digest No 11, 11 October 2006, p. 19.
- Defence Department response to Committee questions, 9 October
2006, p. 6, at paras. 30 32.
- Explanatory Memorandum, p. 7.
- Submission P3A, p. 2.
- In common law jurisdictions, a court of record is a court that
keeps permanent records of its proceedings. Judgments of a trial
court of record are normally subject to appellate review. In many
jurisdictions, all courts are courts of record. In many
jurisdictions, courts that have the power to fine or imprison must
be courts of record. In almost all jurisdictions, a court of record
will have a court clerk whose primary duty is to maintain the
permanent records. Traditionally, a court of record was required to
have its own unique seal, which was used to authenticate its
judgments and copies of its records.
- Submission 3, p. 4.
- Defence Department, op. cit, p. 6, paras 33 34.
- Explanatory Memorandum, p. 10 and 12.
- Explanatory Memorandum, p. 11.
- Explanatory Memorandum, p. 12.
- Explanatory Memorandum, pp.12 13.
- Submission P3, 19 September 2006, p. 4.
- Submission P5, 26 September 2006, p. 1.
- Submission P5, 26 September 2006, pp. 7 8.
- Senate Foreign Affairs, Defence and Trade Committee, Report on
the inquiry into the provisions of the Defence Legislation
Amendment Bill 2006, 27 October 2006, para 1.22.
- Submission P3, 19 September 2006, p. 5.
- Note endnote reference 11.
- ABC TV, Senate
reports find problems , The 7:30 Report, 6 October
2006.
- ABC TV, op cit.
Sue Harris Rimmer
Law and Bills Digest Section
John Moremon
Foreign Affairs, Defence and Trade Section
3 November 2006
Bills Digest Service
Parliamentary Library
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