ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS

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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