ADDITIONAL COMMENTS BY
THE AUSTRALIAN GREENS
1.1
The Australian Greens broadly support the introduction of the Military
Court of Australia Bill 2012 and the Military Court of Australia (Transitional
Provisions and Consequential Amendments) Bill 2012 (the Military Court bills).
These bills will reform Australia's military justice system by creating a
separate and independent Military Court of Australia in accordance with Chapter
III of the Australian Constitution.
1.2
The Australian Greens support these bills because they aim to promote
fairness, accountability and independence. The likely positive impact of the
Military Court bills was best summarised by the evidence of Mr Alexander
Street SC when he said to the inquiry:
The step forward into a real military justice system is a
very positive step. It advances two very important features that are
entrenched in our Constitution – and they are the aspects of transparency and
accountability. They are features inherent in the rule of law that is
entrenched in the Constitution.[1]
1.3
The Australian Greens are also supportive of the Military Court bills as
they will bring Australia into line with its international law obligations,
including its responsibilities under international human rights law.[2]
In their submission, Associate Professor Alison Duxbury, Dr Rain Liivoja and
Associate Professor Matthew Groves highlighted Australia's responsibilities as
a state party to the International Covenant on Civil and Political Rights (ICCPR),
which provides under article 14(1) that '[i]n the determination of any criminal
charge...everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law'.[3]
They also noted that international jurisprudence has established that 'article
14 of the ICCPR applies to military courts and tribunals'.[4]
1.4
However, the Australian Greens hold significant concerns with regard to
one key issue; that is, the impact of clause 64 of the Military Court of
Australia Bill 2012, which provides that 'charges of service offences are to be
dealt with otherwise than on indictment'. The effect of clause 64 is that it
appears to circumvent section 80 of the Australian Constitution, which protects
a person's right to be tried by a jury of her/his peers for serious indictable
offences. The majority of stakeholders, including stakeholders representing
defence and ex-service personnel as well as constitutional law experts, raised
serious concerns about this clause, both in terms of its constitutional
validity and also in terms of the likely impact of it on an accused person's
right to a fair trial.[5]
1.5
A number of stakeholders emphasised the level of seriousness of offences
that could be brought before the Military Court of Australia as a key reason as
to why the right to trial by jury should be available to defendants under a
reformed military justice system. As Mr David McLure said, there are a number
of specific service offences that are punishable by life imprisonment and which
can only be dealt with under the military justice system – i.e. offences such
as providing the enemy with material assistance, mutiny etc.[6]
Given the seriousness of such offences, the Court's capacity to impose life
sentences, and the important protection that jury trials provide to individual
defendants, there was strong, majority agreement amongst stakeholders that jury
trials should be available under the Military Court bills.
1.6
The Australian Greens are deeply concerned by the prospect that a person's
right to trial by jury could be abrogated under the Military Court bills.
Particularly alarming is the possibility that a person may be tried under the
new military justice system for an offence such as murder or mutiny, which is
punishable by life imprisonment, and that such trial and sentence would only be
determined by a single judge. This outcome is inconsistent with the principles
of fairness and independence, and contrary to the purpose and function of
section 80 of the Australian Constitution.
1.7
Given the overwhelming concerns expressed by stakeholders regarding
clause 64 of the Military Court of Australia Bill 2012, the Australian
Greens recommend that this clause be amended so as to allow jury trials in the
case of very serious offences.
Recommendation 1
1.8
That clause 64 of the Military Court of Australia Bill 2012 be amended
so as to allow defendants the right to trial by jury in the case of the most
serious offences, which incur a significant term of imprisonment as punishment
for the offence.
Senator
Penny Wright
Australian Greens
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