CHAPTER 1

Introduction

Referral of inquiry

1.1        The Military Court of Australia Bill 2012 (Military Court Bill) and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (Consequential Amendments Bill) were introduced into the House of Representatives by the Attorney-General, the Hon Nicola Roxon MP, on 21 June 2012.[1] On 28 June 2012, the provisions of both bills were jointly referred to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 14 August 2012.[2] The reporting date was subsequently extended to 9 October 2012.[3]

Background

1.2        The bills seek to establish the Military Court of Australia (Military Court) as a specialist federal court to deal with the trial of serious service offences, and make other consequential amendments and reforms to Australia's military justice system. The Military Court would replace the current system of service tribunals, such as courts martial and defence force magistrates.

Australia's military justice system[4]

1.3        The military justice system applies to all Australian Defence Force (ADF) members in times of peace and war, whether in Australia or overseas. The military justice system supports the maintenance of discipline in the ADF and provides a framework within which service offences by ADF members are investigated and prosecuted.

1.4        The Defence Force Discipline Act 1982 (Defence Force Discipline Act) underpins the military justice system, providing for the investigation of service offences, types of service offences, available punishments, the establishment of service tribunals, trial procedures before those service tribunals, and rights of review and appeal. Service offences under the Defence Force Discipline Act are generally grouped into three categories:

• military discipline offences specific to the defence forces (such as absence without leave);
• offences that have a close civilian criminal law equivalent but which relate to service personnel and equipment (such as assaulting a superior officer); and
• offences imported directly from the civilian criminal law from the law applicable in the Jervis Bay Territory.

1.5        The Defence Force Discipline Act complements, and does not replace, the civilian criminal law in force in Australia applicable to defence personnel. The consent of the Commonwealth Director of Public Prosecutions is required before proceedings in relation to certain offences with civilian equivalents can be instituted.[5] Where service offences are prosecuted under military jurisdiction, the Defence Force Discipline Act provides for the creation of service tribunals with the power to try ADF members. These are courts martial, defence force magistrates and summary authorities.[6]

1.6        In broad terms, a court martial is an ad hoc panel of officers, more senior in rank than the accused, overseen by a legal officer (a judge advocate), which is convened to try a service offence. Under the Defence Force Discipline Act, there are two types of court martial.[7] A general court martial consists of a president and four other members who are able to hear any charge and sentence those convicted to serious penalties (up to life imprisonment).[8] A restricted court martial consists of a president and two other members with restricted powers of punishment (up to six months imprisonment).[9] A defence force magistrate is an appointed legal officer who determines referred matters alone, and has the same jurisdiction and powers as a restricted court martial.[10] A summary authority is a commanding officer, or other officer of the ADF, who is authorised to determine less serious offences and impose lesser sentences.[11]

1.7        The Defence Force Discipline Act also provides for a number of review and appeals processes. Service tribunals must forward a record of proceedings to a reviewing authority for automatic review following conviction of a person for a service offence.[12] In particular, convictions (but not punishments) handed down from a court martial or a defence force magistrate may be appealed to the Defence Force Discipline Appeals Tribunal (DFDAT).[13] Appeals to the DFDAT are only possible on questions of law. The DFDAT is composed of federal, and state and territory judges appointed by the Governor-General. Further appeals on questions of law can be made to the Federal Court of Australia.[14]

1.8        A number of other key officers and organisations contribute to Australia's military justice system. These include:

• the Judge Advocate General (JAG),[15] a judicial officer appointed by the Governor-General, who has oversight over the operation of the judicial aspects of the military discipline system;
• the Judge Advocates, who are legal officers appointed by the JAG, and nominated to courts martial to advise, rule and direct on matters of law, or who are appointed as defence force magistrates;
• the Director of Military Prosecutions,[16] who conducts prosecutions at courts martial and defence force magistrate trials, and represents the ADF at appellate trials and courts;
• the Registrar of Military Justice,[17] who deals with case management and administration of disciplinary justice trials;
• the Director of Defence Counsel Services, who provides legal representation and advice to persons accused of service offences; and
• the Office of the Inspector General Australian Defence Force, which provides a means of review and audit of the military justice system independent of the chain of command.

Joint Committee on Foreign Affairs, Defence and Trade report

1.9        On 21 June 1999, the Joint Committee on Foreign Affairs, Defence and Trade (Joint Committee) tabled a report titled, Military Justice in the Australian Defence Force. The Joint Committee made a large number of recommendations regarding the military justice system, which took into account other concurrent reforms of the military justice system being undertaken by the ADF. In his foreword to the report, the Chair, Senator David MacGibbon, noted that, while the Joint Committee 'received no evidence to support an allegation of a lack of independence in the military justice system there is no question that this perception exists in some quarters'.[18]

1.10      The Joint Committee also received a 'considerable amount of evidence' to support 'the transfer of responsibility for the system of military discipline to an authority separate to the ADF'.[19] The principle reason underlying this proposal was 'the lack of impartiality of service tribunals and the independence of the ADF judiciary'.[20] In particular, a number of submissions to the Joint Committee's inquiry 'suggested that a separate military court, within the existing Australian judicial system could best facilitate an independent and impartial trial'.[21] However, the Joint Committee's report concluded that Australia did not 'have the volume of Military trials to warrant a permanent court':[22]

While the Committee acknowledged considerable support for the transfer of responsibility for the military discipline to an authority separate to the ADF it did not support the creation of a separate military judiciary.[23]

Senate Committee report

1.11      On 16 June 2005, the Senate Foreign Affairs, Defence and Trade References Committee (Senate FADT Committee) tabled a report titled, The effectiveness of Australia's military justice system. The Senate FADT Committee concluded that 'major change is required to ensure independence and impartiality in the military justice system'.[24] A key recommendation made in the report was that the Australian Government should create a permanent military court 'in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality'.[25]

1.12      The Australian Government's response to the Senate FADT Committee's report indicated that, while it agreed with the recommendation to establish a permanent military court, it did not 'support the creation of a permanent military court under Chapter III of the Constitution'. The government also noted that its current advice was that 'there are significant policy and legal issues raised by the proposal to use existing courts for military purposes'.[26]

Attempt to create an Australian Military Court

1.13      On 11 December 2006, the Defence Legislation Amendment Act 2006 received Royal Assent. This legislation amended the Defence Force Discipline Act to create the Australian Military Court. A note to the section creating the Australian Military Court provided that it was 'not a court for the purpose of Chapter III of the Constitution'.[27] While the amendments provided that the Australian Military Court was a 'court of record', a second note indicated that it was to be classified as a 'service tribunal' for the purposes of the Defence Force Discipline Act. Under the legislation, the military judges were to be appointed to the Australian Military Court by the Governor-General for a fixed period and these appointments were to end if the appointees ceased to be members of the ADF. Offences could be tried before the Australian Military Court by a military judge alone, or with a military jury, depending on the class of offence to be tried.

1.14      Prior to the passage of this legislation, a Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry identified a number of concerns with the proposal to create the Australian Military Court, including 'the possibility of a successful High Court challenge to its validity'.[28] That committee recommended that the bill should be amended or redrafted, following a comprehensive consultation process, before proceeding any further.[29]

High Court's ruling of invalidity in Lane v Morrison

1.15      On 26 August 2009, in the case of Lane v Morrison,[30] the High Court of Australia (High Court) unanimously ruled that the establishment of the Australian Military Court under the 2006 legislation was constitutionally invalid. Central to the High Court's decision was the principle that the judicial power of the Commonwealth can only be exercised by a court created in accordance with Chapter III of the Constitution. In particular, Chief Justice French and Justice Gummow held:

[T]he jurisdiction conferred upon the [Australian Military Court]...to try charges of service offences, involves the exercise of the judicial power of the Commonwealth otherwise than in accordance with Ch III of the Constitution.[31]

1.16      Similarly, the joint judgement of Justices Hayne, Heydon, Crennan, Kiefel and Bell stated:

For the [Australian Military Court] to make a binding and authoritative determination of such issues pursuant to the [Defence Force Discipline Act] is to exercise the judicial power of the Commonwealth. There is no dispute that the [Australian Military Court] is not constituted in accordance with Ch III...

[T]he provisions creating the [Australian Military Court] are invalid...because it is established to make binding and authoritative decisions of guilt or innocence independently from the chain of command of the defence forces. It is to exercise the judicial power of the Commonwealth...The whole of Div 3 of Pt VII [establishing the Australian Military Court] should be declared invalid.[32]

1.17      Following the High Court's ruling, the Australian Government introduced the Military Justice (Interim Measures) Act (No. 1) 2009 and the Military Justice (Interim Measures) Act (No. 2) 2009, which re-established the pre-2007 system of courts martial and defence force magistrates.[33]

Military Court of Australia Bill 2010

1.18      On 24 June 2010, the then Attorney-General, the Hon Robert McClelland MP, introduced the Military Court of Australia Bill 2010 into the House of Representatives. The provisions of that bill were referred by the Senate to the Legal and Constitutional Affairs Legislation Committee, for inquiry and report by 21 September 2010.[34] However, following the prorogation of the 42^nd Parliament by the Governor-General on 19 July 2010, the committee resolved to discontinue its inquiry into the provisions of the bill (prior to holding any public hearings)[35] and the bill subsequently lapsed.

Conduct of the current inquiry

1.19      The committee advertised the inquiry in The Australian newspaper on 4 July 2012 and details of the inquiry, the bills and associated documents were placed on the committee's website. The committee also wrote to a number of organisations and individuals, inviting submissions by 13 July 2012. Submissions continued to be accepted after that date.

1.20      The committee received 15 submissions, which are listed at Appendix 1.
All submissions are available on the committee's website at https://www.aph.gov.au/senate_legalcon.

1.21      The committee held a public hearing for the inquiry in Canberra on 14 September 2012. A list of the witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is also available through the committee's website.

Scope of this report

1.22      The report is divided into four chapters: chapter 2 outlines the purpose and key provisions of the bills; and chapter 3 deals with the key issues raised during the inquiry, other than the issue of trial by jury before the Military Court, which is addressed separately in chapter 4. The committee's view and recommendations are also contained in chapter 4.

Acknowledgement

1.23      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Notes on references

1.24      References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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