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Military
Justice (Interim Measures) Amendment Bill 2013
Introduced into the House of
Representatives on 21 March 2013
Portfolio: Defence
Summary of committee view
1.148
The committee
seeks clarification as to the basis for the claim in the statement of compatibility
that the bill 'does not have an impact on human rights', given that the bill
will extend the current interim arrangements for the service tribunal system
for another two years. It also seeks clarification whether these interim
arrangements are consistent with the criteria of an independent and impartial
tribunal.
Overview
1.149
This bill is one
of a series of enactments that followed the 2009 decision of the High Court of
Australia in Lane v Morrison,[1] in which the court held that the
Australian Military Court was unconstitutional. The Parliament put in
place a series of temporary measures (corresponding in large part to the system
which predated the Australian Military Court), pending a decision by Parliament
on how to permanently address the issue of the trial of serious service
offences in the Australian Defence Force.[2]
1.150
The Military
Justice (Interim Measures) Act (No. 1) 2009 currently provides a fixed
tenure of up to four years for both the Chief Judge Advocate and current
full-time judge advocate who were to be appointed pursuant to the provisions of
that Act. That tenure is due to expire in September 2013. The bill amends
Schedule 3 of that Act to extend the appointment, remuneration, and entitlement
arrangements provided for in that Act for an additional two years, thereby
providing a fixed tenure for the Chief Judge Advocate and current full time
judge advocate of up to six years, or until the Minister for Defence declares,
by legislative instrument, a specified day to be a termination day, whichever
is sooner. The legislative instrument would not be subject to disallowance.
Compatibility with human
rights
1.151
The bill is
accompanied by a self-contained statement of compatibility which states that
the bill has no impact on human rights and therefore gives rise to no issues of
incompatibility.
Right to a fair
hearing before an independent and impartial tribunal
1.152
The trial of
members of the armed services for serious service offences by service tribunals
(including courts-martial) has been identified as giving rise to issues of
compatibility with the right to a fair hearing in the determination of a
criminal charge as contained in article 14(1) of the International Covenant on
Civil and Political Rights (ICCPR). The question is whether a person who is a
member of a military with a hierarchical chain of command and who serves as a
judge or member of a military tribunal, can be said to constitute an independent
tribunal in light of the person’s position as part of a military hierarchy.
These considerations were influential in the establishment of the Australian
Military Court that was held to be unconstitutional by the High Court in Lane
v Morrison.
1.153
The UN Human
Rights Committee has stated that
'the requirement of
competence, independence and impartiality of a tribunal in the sense of article
14, paragraph 1, is an absolute right that is not subject to any exception'[3] and that 'the provisions of article
14 apply to all courts and tribunals within the scope of that article whether
ordinary or specialized, civilian or military'.[4]
1.154
The question of
whether a tribunal enjoys the institutional independence guaranteed by article
14(1) of the ICCPR requires consideration of a number of factors, including
whether the members of the court or tribunal are independent of the executive.
In addition to the relationship of members of a tribunal to a military chain of
command, the term of appointment of members may also be relevant. In
particular, the fact that the term of appointment of a member of a court or
tribunal is terminable at the discretion of a member of the executive, raises
concerns about the independence of the tribunal.[5]
1.155
Under clause
2(3)(a)(ii) of Schedule 3 of the Military Justice (Interim Measures) Act (No
1) 2009 the period of appointment of the Chief Judge Advocate was to be for
a period of four years or for a period terminating on the day declared by the
Minister (clause 8). This bill extends the maximum period of appointment to six
years; the possibility of earlier termination by declaration remains.
1.156
The
committee recognises that the bill and associated legislation are intended to
provide for the trial of serious service offences pending a final decision by
the Parliament on how to deal with this issue in light of the judgment of the
High Court in Lane v Morrison. The committee, however, notes that
reversion to the system that predated that 2009 decision gives rise to concerns
about the independence of tribunals hearing serious service offences.
1.157
The
committee intends to write to the Minister for Defence to seek clarification:
- as to the
basis for the claim in the statement of compatibility that the bill 'does not
have an impact on human rights', given that the bill will extend the current
interim arrangements for the service tribunal system for another two years; and
- whether these
interim arrangements are consistent with the criteria of an independent and
impartial tribunal as required by article 14(1) of the ICCPR.
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