Supplementary Comments by Labor Senators
Inquiry into the provisions of the Defence Legislation Amendment Bill 2006
1.1
Labor Senators endorse the findings of the committee's report that the
proposed Australian Military Court (AMC) would not achieve the level of
independence and impartiality needed to ensure a fair and effective military
justice system as recommended by the References Committee. We believe that the
provisions in the bill are so defective and the process leading to the tabling of
the legislation so inadequate that stronger comment is needed. The following
section outlines some of the major concerns held by Labor Senators.
The jurisdiction of the Australian Military Court and the constitution
1.2
Labor's principal concern is that the legislation completely ignores the
substantive basis of the committee's recommendation for a Military Court which
was that such a court should have all the attributes of a court set up under
Chapter III of the Constitution. The assertion by the government that this bill
implements the committee's recommendation is therefore at best misleading, and
deliberately so. The Military Court proposed in this bill has none of the
attributes of a civilian court, and as expressed in evidence by witnesses, is
nothing other than a re-badging of the current unsatisfactory tribunal system. The
shortcomings listed in the committee report form the basis of this judgement,
to which must be added the power and process of appointment, which remain
totally within the military, and the requirement that all appointees remain
purely military.
1.3
In evidence to this committee, the Judge Advocate General (JAG)
questioned the conduct of criminal trials by Service tribunals. He was
concerned because they 'are not established under Chapter III of the Constitution,
and might not be thought to afford the protections provided by those courts'.[1]
He mentioned the possibility of the most serious charges being laid against Australian
Defence Force (ADF) members and the inappropriateness of the proposed AMC
having jurisdiction over crimes such as rape and murder.[2]
The Law Council of Australia added weight to the JAG's argument. It noted the
potential for the AMC to be involved in 'very serious matters' and gave the
example of any possible charges arising out of the Kovco inquiry and the
shooting of the Iraqi security guards by Australian troops. It questioned whether
the High Court would uphold a tribunal’s constitutional entitlement to
adjudicate these issues when it bears a greater resemblance to the
Administrative Appeals Tribunal (AAT) than a court. It concluded:
This increases pressure for the inevitable challenge to be
brought on the grounds of fairness and impartiality, challenges which have
often been brought in the past and are likely to be brought with increasing
frequency if this legislation is passed.[3]
1.4
Labor Senators note the hearing set aside for the Full High Court to
hear a challenge to the validity of current service tribunals.
1.5
Labor Senators believe that not only does the proposed legislation do
nothing to save the AMC from a constitutional challenge but threatens the
effectiveness and independence of the court.
Tenure—fixed five-year renewable terms and retirement from the ADF on
completion of term as MJ
1.6
The proposed re-structuring of service tribunals is intended to confer
on the ADF's discipline system greater independence and overall 'provide for
the maintenance of effective discipline and the protection of individuals and
their rights'.[4]
1.7
With this intention in mind, the bill proposes to introduce 5-year fixed
terms for Military Judges (MJs) which the explanatory memorandum maintains is
designed to strengthen the theme of independence from the chain of command. The
JAG and the Law Council of Australia suggested otherwise noting that the
five-year term would prevent the development in the AMC of proper experience in
the discharge of judicial duties. Indeed the JAG observed:
...the provisions seem to be designed to ensure that the judges of
the AMC acquire minimal judicial experience and that the Court is to undergo
five-yearly disruptions as the judges are turned over. It is my opinion that
these provisions are potentially inherently destructive of the professionalism
and credibility of the AMC.[5]
1.8
Labour members of the committee are of the view that limiting the tenure
of MJs to five years has the potential to curtail severely the AMC's ability to
build up a reservoir of experienced judges. In brief, they believe that Defence
has failed to produce any justification for 5-year fixed terms and that security
of tenure and the enhancement of military justice would be served by other
means.
1.9
The bill allows for renewable terms under strict conditions. Again both
the JAG and the Law Council of Australia were critical. The Law Council
concluded:
Renewable fixed terms for the MJ are inconsistent with the
principle of judicial independence...The provision of a 5 year term of
appointment for MJs may compromise their independence from the chain of command,
by providing the expectation (or even the condition for acceptance of the
office) that well-behaved or compliant MJ’s may be rewarded at the completion
of their term of office, for (consciously or unconsciously) acting in accordance
with the wishes of either the military chain of command (which could be
perceived by some to include the DMP), or political appointers. [6]
1.10
Labor Senators are not convinced that the provisions governing renewable
terms provide the necessary safeguards that would ensure the independence of
military judges. In their view, the provisions allow for an expectation of a
second term which could influence the conduct of a judge.
1.11
It should be noted that a military judge ceases to be a member of the
ADF when the person ceases to hold office as a MJ unless the person is to be
immediately appointed Chief Military Judge (CMJ).[7]
The CMJ also ceases to be a member of the Defence Force when he or she ceases
to hold that office. The explanatory memorandum stated that:
This provision 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.[8]
1.12
The JAG doubted that there would be 'very many officers who have more
than five years to their compulsory retiring age being interested in taking on
an appointment [as a MJ] for five years which would effectively terminate their
military career.[9]
To his mind, the proposition was 'counterproductive'.[10]
1.13
Along similar lines, Mr Paul Willee, Law Council of Australia, told the
committee that 'no military officer, permanent or serving, worth their salt
would want to commit professional suicide by taking an appointment at 35, 40 or
45 and deprive themselves of the association with the service...'[11]
He noted further that, 'nor could they be said to be serving the position of
independence in that circumstance whereby, if they did take it, they might be
perceived to be toadying or in some way currying favour so that they could meet
the conditions for a further five-year appointment'.[12]
1.14
It would seem that intent on avoiding any perception of undue influence
on MJs by requiring them to retire from the ADF after serving their 5-year
term, the bill has created a range of serious problems that could undermine the
effectiveness of the AMC. Defence could not reassure Labor Senators that the
proposed AMC would attract suitable, highly qualified officers. In the
Senators' view, younger, suitable officers would simply not apply for the job
knowing that in five years time not only would their position as a MJ cease but
their ability to serve the country as an ADF member would also come to an
abrupt end.
1.15
Labor Senators could find no satisfactory justification for the provisions
governing the tenure of MJs and are certain that the provisions of the bill
cannot achieve their stated intention. Indeed, they believe that taken as a
whole the provisions governing the appointment and tenure of the CMJ and MJs
could seriously undermine the effectiveness of the proposed AMC and damage its
standing as a legal institution. On these grounds alone they cannot support the
provisions of the bill as they now stand.
Military jury of six with a two-thirds majority decision
1.16
Trial by jury is widely accepted as a necessary safeguard to individual
liberty and is a right protected under the Australian Constitution. Section 80
of the Constitution states expressly that the trial on indictment of any
offence against any law of the Commonwealth shall be by jury. Section 4G of the
Crimes Act 1914 offers guidance on what should be considered an
indictable offence. It suggests that 'offences against a law of the
Commonwealth punishable for a period exceeding 12 months are indictable
offences, unless the contrary intention appears'.
1.17
The bill provides for a military jury, a concept new to Australia's
military law. It should be noted, however, that the military jury under the
proposed legislation is to consist of 6 members as against 12. Also, a decision
is to be made by the agreement of at least a two-thirds majority—a
significantly less onerous requirement than in the civilian criminal law of
either unanimity, especially for cases such as murder or treason, or a majority
of 11 of 12 jurors or 10 of 11 jurors or in some cases a majority of 10 of 12
jurors.
1.18
Neither the explanatory memorandum nor the second reading speech offered
any reasons for the different standards applying to a military jury. Defence's
submission similarly provided no explanation. The legislation would mean that a
Service person being tried before a military judge and military jury for a
serious offence is not afforded the same protections as a civilian being tried
by a civilian court in Australia. This arrangement is simply not good enough.
1.19
The Senate Standing Committee for the Scrutiny of Bills also commented
on the military jury. It noted 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.[13]
Court of record
1.20
The committee notes that the jurisdiction of the AMC extends to the most
serious offences. It supports the view that the bill stipulate that the AMC is
a court of record.
Transitional arrangements
1.21
Labor Senators note that problems could arise during this transition
period and of the need for the proposed legislation to protect the integrity of
current proceedings during the transition. The committee draws to the
government's attention the JAG's suggestion that the current Judge Advocate/Defence
Force Magistrate (DFM) automatically transition to the proposed AMC when it is
stood up and his reasons for doing so.
The role of the Registrar of Military Justice
1.22
Labor Senators note the suggestion by the Registrar of Military Justice
endorsed by the JAG that appeals to the Defence Force Discipline Appeals
Tribunal be centralised through the Registrar's office.
Director Defence Counsel Services (DDCS)
1.23
Labor Senators support the JAG's recommendation that the DDCS be made a
statutory appointment ensuring the office would have independence from the
chain of command.
Chief of Defence Force Commission of Inquiry
1.24
Labor Senators recognise that the parliament needs to continue to
monitor developments in, and reforms to, Defence administrative inquiries and
in particular how they interact with State coroners. They draw to Defence's
attention the matters raised by the JAG and the Law Council with regard to the establishment
of the Chief Defence Force Commissions of Inquiry so that they can be addressed
in future legislative changes.
1.25
Labor Senators have not examined all the concerns raised by submitters
to the inquiry, it nonetheless has identified some of the more serious ones
which are summarised below.
Summary
1.26
While Labor Senators understand that the bill is intended to improve
Service tribunals, they are disappointed that the government did not go further
in strengthening the independence of the court and in guarding against possible
influence from the chain of command. Labor Senators believe that the bill should
be withdrawn and re-drafted taking account of the following suggestions:
- limit the jurisdiction of the AMC to matters that 'can be
reasonably be regarded as substantially serving the purposes of maintaining or
enforcing service discipline'—to put beyond doubt that the court's jurisdiction
would not extend to civilian criminal offences committed overseas;
- change the fixed term appointment to compulsory retirement age or
introduce other measures that would not limit a MJ's term to just five years
considering the adverse effect that five year terms may have on the level of
experience of the court;
- remove the renewable fixed term provision, which, according to
both the JAG and the Law Council of Australia, are inconsistent with the
principle of judicial independence and may 'lead to the perception that MJs are
beholden to the military chain of command or political appointees';
- remove the provision that force a MJ to retire from the Services
at the expiration of his or her appointment as it may discourage suitably
qualified officers from applying for the position and replace with a provision
stipulating that the tenure of a military judge is to compulsory retirement
age;
- provide that all appointments should be made by the Governor
General;
- make the termination of appointments consistent with the concept
that removal of a judge should be only by the Governor-General on address from
both Houses of Parliament in the same session;
- if the AMC is to try civilian criminal offences committed
overseas then redraft the provisions so that in such cases the military jury
aligns more closely with those of Australia's civilian courts—membership of 12 with
the requirement for a unanimous decision;
- stipulate that the AMC is a court of record;
- ensure that transitional measures protect the integrity of
current proceedings;
- establish the Director of Defence Counsel Services as a statutory
position;
- clarify the role of state coroners in investigating sudden deaths
recognising the primacy of the coroner's jurisdiction; and
- ensure that the essential provisions relating to the Chief of
Defence Force Commission of Inquiry are contained in the Act and not regulations.
Consultation
1.27
Labor Senators note that the majority report referred to the JAG's
statement about Defence receiving advice from Defence Legal on provisions in
the bill such as those governing the tenure and renewal of MJs' appointments which
it appears to have ignored.
1.28
The lack of consultation and the closed minds of those responsible for
this bill has produced legislation that if enacted would not serve our service
people well. Labor Senators believe that Australia's service men and women are
entitled to much better. They deserve a first class discipline system and not
this ill conceived and poorly considered proposal.
1.29
The first step toward achieving a discipline system worthy of Australia's
ADF must be a thorough and public consultation process. This process would draw
on the experience and wealth of knowledge of serving and former ADF members who
have had practical experience of Australia's current service tribunals. Labor
Senators recommend that the government produce a draft bill and invite submissions
on the draft. The submissions to be public and the government to report on the
submissions and to make their findings public.
Conclusion
1.30
Labor Senators considered the provisions of the bill and found a number
of them so seriously flawed that the bill as a whole should be withdrawn. It
suggests that, after a comprehensive process of consultation, the government
draft a bill. This proposed legislation would achieve the stated intention of establishing
an independent permanent military court. The court would be staffed by
independently appointed judges who are well equipped to protect a Service
member's inherent rights and freedoms, leading to impartial, rigorous and fair
outcomes. It should be created in accordance with Chapter III of the Australian
Constitution to ensure its independence and impartiality.
Senator Mark Bishop Senator
Steve Hutchins
Senator John Hogg
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