DISSENTING REPORT BY
LIBERAL SENATORS
1.1
Liberal Senators were troubled by the considerable volume and weight of
the criticism levelled at 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) in the
course of this inquiry. We accept the clear need to recast Australia's military
justice system in light of recent High Court of Australia decisions, but remain
concerned that the Government seems to have opted for a highly problematic
solution to the dilemma it faces.
1.2
Liberal Senators welcome the majority of the reforms to Australia's
military justice system contained in the provisions of the bills. In particular,
the establishment of the Military Court of Australia (Military Court) under
Chapter III of the Constitution could potentially be an important step forward
for Australia's military justice system with benefits for both the Australian
Defence Force (ADF) and individual ADF members. Unfortunately, the Military
Court, as proposed in the bills before the committee, contains significant
flaws which Liberal Senators consider will prevent it from providing the high
standard of justice to which the Australians serving in our armed forces are
entitled.
Trial by jury
1.3
The determination by the High Court in 2009 that the Australian Military
Court was constitutionally invalid highlighted that the exercise of the judicial
power of the Commonwealth must accord with Chapter III of the Constitution. In
this context, Liberal Senators expected an appropriate level of care,
consultation and caution to be exercised in the drafting of the legislation to
establish the Military Court. Unfortunately, this anticipated prudence is not
evident in features of this legislative package, including the decision not to
provide for trial by jury for ADF members accused of serious service offences
before the proposed Chapter III court.
1.4
In particular, Liberal Senators were concerned to hear evidence that the
trial of serious service offences, with penalties up to life imprisonment,
could be tried by a single judge of the Military Court. Previously, those
accused of service offences under the Defence Force Discipline Act 1982 were
not entitled to trial by jury. However, these trials were held before service
tribunals, not a Chapter III court. While the argument was made that service
offences are not criminal offences, in the view of Liberal Senators this
distinction is blurred. Many service offences, such as theft or assault, have
civilian criminal law equivalents. Further, section 61 of the Defence Force
Discipline Act imports the civilian criminal law of the Jervis Bay Territory to
apply to defence personnel in Australia and overseas. These include civilian criminal
offences which are indictable and are tried with a jury in a civilian context.
1.5
This exclusion of the right to trial by jury vexed many witnesses. The
RSL commented:
...there is a great concern that the power to make issues to
find guilt or innocence of serious service offences which may, in some
instances, carry sentences on conviction of up to life imprisonment will indeed
be the subject of decision by one person alone.[1]
1.6
The Australian Defence Association observed that the proposed
arrangements:
...would both hamper Australia's national Defence efforts as
a whole and narrow the rights and protections that our Defence Force personnel
deserve as Australian citizens.[2]
1.7
The High Court has previously held that it is for the parliament to
decide which offences will be tried on indictment, and thus which offences will
entitle the accused to trial by jury under section 80 of the Constitution. Nonetheless,
Liberal Senators are concerned that clause 64 of the Military Court Bill,
which provides that all service offences are to be tried otherwise than on
indictment, presents an appropriate 'vehicle' for the reconsideration, or
clarification, of this issue. In the view of Liberal Senators, the analysis
provided to the committee by Mr Alexander Street SC on this matter
carries considerable weight.[3]
Liberal Senators agree with his conclusion that 'there is no rational
foundation for depriving ADF personnel of their rights under [section 80] of
the Constitution in the design of this new Military Court'.[4]
1.8
The risk of the High Court striking down this new Military Court on this
ground was repeatedly stressed by witnesses and submitters. The consequences of
the Military Court being found to be constitutionally invalid, including negative
impacts on disciplinary processes and trust in the military justice system, was
also emphasised. Liberal Senators consider that amendments to the bills should
be made to mitigate the risk of a High Court challenge and a repeat of the type
of disruption to the military justice system that occurred in 2007.
1.9
The Law Council of Australia's concerns about this possibility were
expressed as follows:
The disciplinary system in the ADF is an absolute core—it is
one of the two main cores that the chair put to me earlier on. It goes through
the whole of the Defence community; it affects everybody—and it involves people
being taken away from their normal pursuits to deal with it...[I]t has to be
clear and unambiguous, and any change of a major sort in such an organ of the force
produces a general unease amongst those who might be subjected to it.[5]
1.10
Ultimately, Liberal Senators consider that all members of the ADF are
entitled to the same rights and protections as other Australian citizens before
a Chapter III court. This is in keeping with Australia's international
obligations, including Article 14 of the International Covenant on Civil
and Political Rights which provides that all persons shall be equal before
courts and tribunals. Accordingly, Liberal Senators recommend that the
bills be amended to incorporate a right to trial by jury before the Military
Court for all service offences which would otherwise be on indictment in a
civilian context. As with other Commonwealth offences, the right to trial by
jury before the Military Court should only be for those service offences
punishable by more than 12 months imprisonment. Senator David Fawcett holds the
view that this may be best achieved in the military environment through a panel
of military members rather than a civilian jury.
1.11
Liberal Senators do not consider that this amendment will have any
effect on the maintenance of discipline within the ADF. The provision of trial
by jury, for serious service offences, will serve to increase the trust and
confidence of the ADF and the public in Australia's military justice system. The
vast majority of disciplinary matters will continue to the dealt with summarily
by commanding officers in the ADF. The Military Court will still maintain a
strong service character because, in most cases, the prosecutors, the defence
counsel and the defendant will be defence personnel. Further, the judicial
officers of the Military Court will be required by reason of experience or
training to understand service within the ADF.
1.12
During the inquiry, it was implied that a civilian jury would not
necessarily understand the additional seriousness of theft on board a warship.[6]
However, with respect, this misinterprets the role of a jury during a trial.
The role of the jury is to determine matters of fact, that is, to determine
that the elements of the relevant offence allegedly committed by the accused
are made out by the prosecution beyond reasonable doubt. The seriousness of the
offence, because of its service context, may be a consideration of a judge in
sentencing if the accused is convicted, but it should not be a consideration of
the jury in determining the facts of the case.
1.13
The evidence received during the inquiry indicated that situations
requiring the residual use of courts martial and defence force magistrates
(where the Military Court is unable to sit overseas) will be rare. Providing
for trial by jury for service offences before the Military Court may result in
additional use of courts martial and defence force magistrates in overseas
operations, as it will be impractical to empanel juries in those locations. Nonetheless,
in the view of Liberal Senators, the imperative of granting a fair trial to ADF
members in compliance with Chapter III of the Constitution, where this is
possible, outweighs the potential difficulties of the concurrent operation of these
residual service tribunals and the Military Court.
Appointments to the Military Court
1.14
Liberal Senators remain concerned about the provisions for appointment of
judicial officers to the Military Court. On one hand, the appointment
provisions to the court require an understanding of military service but, on
the other hand, restrict the appointment of those most likely to have that
understanding of military service – the members of the ADF community. In
particular, this restriction significantly reduces the pool of judicial
officers with a suitable understanding of military service who could be
appointed to the Military Court.
1.15
Liberal Senators do not consider that the explanation made during the
inquiry for these restrictions on appointments to the Military Court adequately
justifies the complete exclusion of all ADF members from appointment to the
Military Court.[7]
It was not clear at the public hearing whether the restrictions on
appointment to the Military Court were due to constitutional concerns or were
included as the result of a 'policy decision'.[8]
The Australian Government's legal advice on this issue was not provided to the
committee.[9]
1.16
In this context, Liberal Senators consider that amendments should be
made to expand, as far as Chapter III of the Constitution will allow, the
opportunities for a reservist or a standby reservist of the ADF to be appointed
to the Military Court. Liberal Senators acknowledge the suggestion of the
Australia Defence Association (ADA) to exclude permanent or active
reservists from appointment to the Military Court, but not members of the
standby reserve.[10]
Senator David Fawcett supports the view of the ADA on this matter.
1.17
An amendment to expand the opportunities for reservists to serve as
judges on the Military Court will have a number of advantages. These include:
-
increasing the pool of suitable appointees to the Military Court
who meet the requirements in subclause 11(3) (understanding of the nature of
service in the ADF);
-
increasing confidence in the Military Court within both the ADF
and the general public; and
-
increasing the deployability of the Military Court to operational
environments which might be too hazardous for a civilian judicial officer.
1.18
Accordingly, we make the following recommendations:
Recommendation 1
1.19
Liberal Senators recommend that the Military Court of Australia Bill
2012 and the Military Court of Australia (Transitional Provisions and
Consequential Amendments) Bill 2012 be amended to provide a right to trial by
jury before the Military Court of Australia for all service offences punishable
by a term of imprisonment exceeding 12 months.
Recommendation 2
1.20
Liberal Senators recommend that the Military Court of Australia Bill
2012 and the Military Court of Australia (Transitional Provisions and
Consequential Amendments) Bill 2012 be amended to permit reservists and standby
reservists to be appointed as judicial officers of the Military Court to the
extent that Chapter III of the Constitution allows this to occur.
Recommendation 3
1.21
Liberal Senators recommend that, unless the bills are amended in
accordance with recommendations 1 and 2, the Military Court of Australia Bill
2012 and the Military Court of Australia (Transitional Provisions and
Consequential Amendments) Bill 2012 not be passed.
Senator Gary
Humphries
Deputy Chair |
Senator Sue Boyce |
| |
|
| Senator the Hon George Brandis SC |
Senator
David Fawcett |
| |
|
| Senator the Hon David Johnston |
|
Navigation: Previous Page | Contents | Next Page