Defence Legislation Amendment Bill 2007
Interim Report
1.1
On 16 August 2007, the Senate referred the provisions of the Defence
Legislation Amendment Bill 2007 to the Senate Standing Committee on Foreign
Affairs, Defence and Trade for inquiry and report by 5 September 2007.
Background to the Bill
1.2
In 2004 and 2005, the Foreign Affairs, Defence and Trade References Committee
inquired into and reported on Australia's military justice system. During this
inquiry, the committee examined the Australian Defence Force's (ADF)
disciplinary tribunals. It cast considerable doubt over the impartiality of
current structures and argued that Service personnel's right to access fair and
independent tribunals was under threat. It found:
Australia's disciplinary system is not striking the right
balance between the needs of a functional Defence Force and Service members'
rights, to the detriment of both.[1]
1.3
The committee recommended that the government establish an independent
permanent military court, staffed by independently appointed judges possessing
extensive civilian and military experience that would extend and protect a
Service member's inherent rights and freedoms, leading to impartial, rigorous
and fair outcomes.[2]
The committee also recommended the introduction of a right to elect trial by
court martial before the permanent military court for summary offences and the
introduction of a right of appeal from summary authorities to the permanent
military court.
1.4
The government supported the committee's main recommendation to create a
permanent military court.[3]
It agreed in principle with the concept of a right to elect trial. It stated:
The form of that right and appropriate thresholds will be needed
to be determined once the structure of the Australian military court is
established, but will be based on existing determinations that certain classes
of serious offences must be tried by a court incorporating a military jury.[4]
1.5
The government also agreed with the concept of an automatic right of
appeal, on conviction or punishment, from summary authorities to a judge
advocate of the Australian military court.[5]
Purpose of the Bill
1.6
The main purpose of this bill is to give effect to the government's
undertaking to enhance Australia's military justice system as outlined in its
response to recommendations contained in the report on Australia's military
justice system.[6]
1.7
In 2006, legislation was passed establishing the Australian Military
Court (AMC) which then prepared the way for the introduction of the right to
elect trial from summary procedures and the right of appeal from summary
authorities to the AMC. According to the Explanatory Memorandum, the bill's
'comprehensive system of elections and appeals in respect of summary authority
proceedings provides a direct link to the statutorily independent AMC and in so
doing enhances existing safeguards.'[7]
1.8
This bill accords with the committee's recommendations dealing with the
ADF's summary discipline system. It will introduce an automatic right of appeal
from a summary authority to a single Military Judge of the AMC. It will provide
an accused with the right to elect trial by a Military Judge of the AMC for all
but a limited number of certain disciplinary offences mainly minor infractions
of discipline such as cases of absence without leave. These minor offences are
ones that must be dealt expeditiously by a summary authority to maintain
discipline and moral. Individuals will still have the right of appeal from a
summary trial.
1.9
The Explanatory Memorandum also noted that the evidence regime currently
applying to summary trials is 'overly complex and not easy to apply by persons
without formal legal training'. The bill recognises the importance of having 'a
fair but simple and easily understood evidence framework and intends to
simplify the evidence regime for summary trials. The Explanatory Memorandum
stated that the changes introduced by the bill would 'mean that summary
hearings will be more efficient and timely, while maintaining all the necessary
safeguards for an accused person'.[8]
Submissions
1.10
The committee advertised the inquiry in The Australian on 22 August 2007, calling for submissions by Monday 27 August 2007. The committee also wrote
to a number of relevant organisations and individuals to invite submissions.
1.11
The committee received submissions from the Acting Chief of the ADF, the
three Service Chiefs, the Judge Advocate General, the Inspector General of the
Australian Defence Force, the Director of Military Prosecutions, and the Law
Council of Australia.
Conduct of the Inquiry
1.12
The committee notes the importance of the proposed legislation and the
short amount of time allowed to prepare submissions and to present evidence
before the committee at a public hearing. To allow witnesses time to consider
the views presented in submissions, the committee decided that it would not
hold a public hearing until 5 September. To further expedite proceedings the committee
prepared written questions on notice to Defence. These questions, sent to
Defence on 30 August 2007, dealt largely with minor drafting matters or were
seeking clarification on terms used in the legislation.
1.13
The committee received Defence's responses to the questions on 4
September.
1.14
There was strong support for the bill especially from the Acting Chief
of the ADF and the three Service Chiefs. The Inspector General Australian
Defence Force stated that:
Given the imminent commencement of the AMC and its intended role
in the summary system it is in the interests of the ADF military justice system
and its new summary procedures be introduced as soon as possible.[9]
1.15
The committee notes the clear endorsement of the proposed legislation
and the desire to have it in place as soon as possible. It was concerned,
however, about a number of matters that it believed needed to be examined. They
included:
- An omission on the right of the Director of Military Prosecutions
to appeal to the Defence Force Discipline Appeals Tribunal against an
interlocutory judgment or order given or made in proceedings in an Australian
Military Court. The Law Council proposed s.5F of the Criminal Appeal Act (New
South Wales) as a suitable model for adoption.[10]
- The exclusion of non-commissioned officers from the discipline
officer scheme. The Inspector General Australian Defence Force and the Director
of Military Prosecutions identified this as a matter that should be addressed.
- The apparent lack of wide consultation on the proposed
legislation.
- Comments by the Director of Military Prosecutions who, while
supporting the right of an accused person to elect trial, noted that the scope
of the election appeared to be limited.
1.16
In light of these concerns and of the need to give thorough
consideration to the evidence presented at the public hearing on 5 September,
the committee decided to present an interim report. The committee will be
presenting its final report on the provisions to the Defence Legislation
Amendment Bill 2007 on or before 10 September 2007.
1.17
Submissions and the transcript of the public hearing will be tabled with
the final report. The written questions on notice to the Department of Defence
together with Defence's responses will be included as an appendix to the final
report.
SENATOR MARISE PAYNE
CHAIR
For further information, contact:
Committee Secretary
Senate Standing Commitee on Foreign Affairs, Defence and Trade
PO Box 6100
Parliament House
Canberra ACT 2600
Australia
Website feedback: web.senate@aph.gov.au
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