Footnotes
CHAPTER 1 - Introduction
[1]
House of Representatives Votes and Proceedings, 21 June 2012, p.
1595.
[2]
Journals of the Senate, 28 June 2012, pp 2696-2697. Both bills were
also referred to the Senate Foreign Affairs, Defence and Trade Legislation
Committee (FADT Committee), for inquiry and report by 14 August 2012. The FADT
Committee tabled a brief report in the Senate on 14 August 2012, in which
it indicated that it had decided not to duplicate the work of the committee by
conducting a parallel inquiry.
[3]
Journals of the Senate, 14 August 2012, p. 2719.
[4]
This section of the committee's report draws on the Senate Foreign
Affairs, Defence and Trade References Committee report, The effectiveness of
Australia's military justice system, June 2005, pp 7-15.
[5]
Section 63, Defence Force Discipline Act.
[6]
Part VII, Defence Force Discipline Act.
[7]
Subsection 114(1), Defence Force Discipline Act.
[8]
Subsection 114(2), Defence Force Discipline Act.
[9]
Subsection 114(3), Defence Force Discipline Act.
[10]
Section 129, Defence Force Discipline Act.
[11]
Sections 106-108, Defence Force Discipline Act.
[12]
Section 152, Defence Force Discipline Act.
[13]
Section 20, Defence Force Discipline Appeals Tribunal Act 1955.
[14]
Section 52, Defence Force Discipline Appeals Tribunal Act 1955.
[15]
Section 179, Defence Force Discipline Act.
[16]
Section 188G, Defence Force Discipline Act.
[17]
Section 188F, Defence Force Discipline Act.
[18]
Joint Committee on Foreign Affairs, Defence and Trade, Military Justice
in the Australian Defence Force, June 1999.
[19]
Joint Committee on Foreign Affairs, Defence and Trade, Military Justice
in the Australian Defence Force, June 1999, p. 117.
[20]
Joint Committee on Foreign Affairs, Defence and Trade, Military Justice
in the Australian Defence Force, June 1999, p. 117.
[21]
Joint Committee on Foreign Affairs, Defence and Trade, Military Justice
in the Australian Defence Force, June 1999, p. 120.
[22]
Joint Committee on Foreign Affairs, Defence and Trade, Military Justice
in the Australian Defence Force, June 1999, p. 126 (quoting a submission
from Colonel K Northwood).
[23]
Joint Committee on Foreign Affairs, Defence and Trade, Military Justice
in the Australian Defence Force, June 1999, p. 126.
[24]
Senate Foreign Affairs Defence and Trade References Committee, The
effectiveness of Australia's military justice system, June 2005, p. xxi.
[25]
Senate Foreign Affairs Defence and Trade References Committee, The
effectiveness of Australia's military justice system, June 2005, p. 102.
[26]
Department of Defence, Government Response to Senate Foreign Affairs,
Defence and Trade References Committee, October 2005, pp 14-15.
[27]
Defence Legislation Amendment Act 2006, Schedule 1, Item 11.
[28]
Senate Foreign Affairs, Defence and Trade Committee, Defence
Legislation Amendment Bill 2006 [provisions], October 2006, p. 5.
[29]
Senate Foreign Affairs, Defence and Trade Committee, Defence
Legislation Amendment Bill 2006 [provisions], October 2006, pp 5-7.
[30]
(2009) 239 CLR 230.
[31]
(2009) 239 CLR 230 at 237.
[32]
(2009) 239 CLR 230 at 266-267.
[33]
Explanatory Memorandum (EM), Military Court Bill, p. 1.
[34]
House of Representatives Votes and Proceedings, 24 June 2010, p.
1906; Journals of the Senate, 24 June 2010, p. 3773.
[35]
Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the provisions of the Military Court of Australia Bill 2010, 23 July
2010, p. 1, available from the committee's website: www.aph.gov.au/senate_legalcon.
CHAPTER 2 - Purpose and key provisions of the bills
[1]
House of Representatives Hansard, 21 June 2012, pp 7413-7414.
[2]
EM, Military Court Bill, p. 3. The diagram of the structure of the Military
Court also indicates the serious service offences in Schedule 1 to be dealt
with by the Appellate and Superior Division (discussed below).
[3]
EM, Military Court Bill, p. 29.
[4]
EM, Military Court Bill, p. 29.
[5]
House of Representatives Hansard, 21 June 2012, pp 7415-7416.
CHAPTER 3 - Key issues
[1]
For example, see, Mr Alexander Street SC, Submission 2, p. 3; Ms
Gabrielle Appleby and Professor John Williams, Submission 3, p. 1;
Inspector General Australian Defence Force, Submission 8, p. 1; General
D.J. Hurley AC, DSC, Chief of the Defence Force, on behalf of the Australian
Defence Force, Submission 9, p. 1.
[2]
Mr David McLure, Submission 11, p. 1; Mr Alister Abadee, Submission
12, p. 1; Returned and Services League of Australia, Submission 5,
p. 1; Australia Defence Association, Submission 13, p. 3; Mr Neil
James, Australia Defence Association, Committee Hansard,
14 September 2012, p. 3.
[3]
For example, Australia Defence Association, Submission 13, p. 3;
Mr Alister Abadee, Committee Hansard, 14 September 2012, p. 26.
[4]
Submission 2, p. 3.
[5]
Submission 9, p. 2.
[6]
Submission 9, p. 1.
[7]
Submission 9, pp 1-2.
[8]
Committee Hansard, 14 September 2012, p. 35.
[9]
Submission 8, p. 1
[10]
Submission 3, p. 5.
[11]
Submission 6, pp 2-3.
[12]
Submission 4, Attachment 1, pp 1-2.
[13]
Senate Foreign Affairs, Defence and Trade References Committee report, The
effectiveness of Australia's military justice system, June 2005, p.
98.
[14]
The Hon Alan Abadee AM RFD QC, Returned and Services League of Australia, Committee Hansard,
14 September 2012, p. 2; Mr Neil James, Australia Defence
Association, Committee Hansard, 14 September 2012, p. 3.
[15]
Submission 12, p. 3.
[16]
Submission 12, p. 3.
[17]
Submission 11, p. 14.
[18]
Submission 11, p. 1.
[19]
For example, South Australian Bar Association and Law Society of South
Australia, Submission 7, p. 1.
[20]
Submission 10, p. 1.
[21]
See, for example, Mr David McLure, Submission 11, p. 13; Mr
Alexander Street SC, Submission 2, pp 8, 12.
[22]
Submission 4, Attachment 1, p. 3.
[23]
Submission 3, p. 6.
[24]
For example, the Hon Alan Abadee AM RFD QC, Returned and Services League
of Australia, Committee Hansard, 14 September 2012, p. 1; Mr
Alister Abadee, Committee Hansard, 14 September 2012, p. 26; Mr
David McLure, Committee Hansard, 14 September 2012, p. 27.
[25]
For example, Mr Paul Willee QC, Law Council of Australia, Committee
Hansard, 14 September 2012, pp 12, 15; Brigadier L.A. McDade,
Director of Military Prosecutions, Submission 10, p. 1.
[26]
Submission 11, p. 2.
[27]
Submission 6, p. 1.
[28]
Submission 13, p. 9.
[29]
Response to questions on notice, provided on 24 September 2012, p. 2.
[30]
Response to questions on notice, provided on 24 September 2012, p. 3.
[31]
Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard,
14 September 2012, p. 52 (referring to subsection 22(1) of the Family Law
Act 1975).
[32]
Committee Hansard, 14 September 2012, p. 13.
[33]
Submission 11, p. 11.
[34]
Committee Hansard, 14 September 2012, p. 25.
[35]
Committee Hansard, 14 September 2012, p. 51.
[36]
Committee Hansard, 14 September 2012, p. 24.
[37]
Submission 15, p. 2.
[38]
EM, Military Court Bill, p. 13.
[39]
EM, Consequential Amendment Bill, p. 94.
[40]
Ms Margaret Meibusch, Attorney-General's Department, Committee Hansard,
14 September 2012, p. 44; Mr David Fredericks, Attorney-General's
Department, Committee Hansard, 14 September 2012, p. 46.
[41]
Submission 13, p. 9.
[42]
Submission 13, pp 9-10.
[43]
Committee Hansard, 14 September 2012, p. 8.
[44]
Committee Hansard, 14 September 2012, pp 44, 51-52.
[45]
Submission 13, pp 11-12.
[46]
Response to questions on notice, provided on 24 September 2012, pp 7-8.
[47]
Previously a section existed within the Defence Force Discipline Act which
attempted to oust the jurisdiction of a civilian court where an accused had
been tried for an offence under the military justice system. This was found by
the High Court to be unconstitutional in Re Tracey; Ex parte Ryan (1989)
166 CLR 518; see also, Ms Gabrielle Appleby and Professor John Williams,
Submission 3, p. 3; Air Commodore Paul Cronan AM, Department of Defence,
Committee Hansard, 14 September 2012, p. 53.
[48]
EM, Consequential Amendments Bill, p. 4-5.
[49]
Submission 4, Attachment 1, p. 3.
[50]
Submission 3, p. 2, citing Re Tracey; Ex parte Ryan (1989)
166 CLR 518.
[51]
Submission 3, p. 4.
[52]
Submission 3, p. 5.
[53]
Committee Hansard, 14 September 2012, p. 31.
[54]
Response to questions on notice, provided 24 September 2012, p. 3.
[55]
Response to questions on notice, provided on 24 September 2012, p. 2.
[56]
Response to questions on notice, provided on 24 September 2012, p. 3. See
also,
Attorney-General's Department, response to questions on notice, provided on
24 September 2012, p. 3.
[57]
EM, Consequential Amendments Bill, p. 2.
[58]
Submission 9, p. 2.
[59]
Committee Hansard, 14 September 2012, p. 33.
[60]
Submission 8, p. 2.
[61]
Submission 4, Attachment 1, pp 2-3; also see Mr Paul Willee QC, Law
Council of Australia, Committee Hansard, 14 September 2012, p. 12.
[62]
Submission 5, pp 11, 15.
[63]
Submission 5, p. 11.
[64]
Submission 6, p. 4.
[65]
Submission 2, p. 8.
[66]
Response to questions on notice, provided on 19 September 2012, p. 1.
[67]
Response to questions on notice, provided on 19 September 2012, p. 1.
[68]
Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard,
14 September 2012, p. 47.
[69]
Response to question on notice, provided on 24 September 2012, p. 7.
[70]
Response to questions on notice, provided on 24 September 2012, p. 5.
[71]
EM, Military Court Bill, p. 50.
[72]
Submission 2, p. 12.
[73]
Submission 2, p. 10.
[74]
Submission 2, p. 11.
[75]
Response to questions on notice, provided on 24 September 2012, p. 4.
[76]
Response to questions on notice, provided on 24 September 2012, pp 3-4.
[77]
Submission 4, p. 1.
[78]
Submission 4, Attachment 1, p. 4.
[79]
Submission 2, p. 11.
[80]
Response to questions on notice, provided on 24 September 2012,
p. 1.
[81]
Response to questions on notice, provided on 24 September 2012,
p. 1.
[82]
Submission 2, pp 12-13.
[83]
EM, Military Court Bill, p. 47.
[84]
Submission 15, p. 4, referring to subclauses 105(3) and 105(4) of
the Military Court Bill.
CHAPTER 4 - Trial by jury
[1]
See, for example, Mr Alexander Street SC, Submission 2, p. 3; Ms
Gabrielle Appleby and Professor John Williams, Submission 3, pp 4-5; Law
Council of Australia, Submission 4, p. 2; Returned and Services League, Submission
5, p. 1; Associate Professor Alison Duxbury, Dr Rain Liivoja and
Associate Professor Matthew Groves, Submission 6, pp 4-5;
Inspector General Australian Defence Force, Submission 8, pp 1-2.
[2]
See Associate Professor Alison Duxbury, Dr Rain Liivoja and
Associate Professor Matthew Groves, Submission 6,
p. 4; Law Council of Australia, Submission 4, Attachment 1,
p. 2; Returned and Services League of Australia, Submission 5, p. 1.
[3]
House of Representatives Hansard, 21 June 2012, p. 7414.
[4]
House of Representatives Hansard, 21 June 2012, p. 7414.
[5]
(1928) 41 CLR 128.
[6]
(1928) 41 CLR 128 at 139.
[7]
(2007) 231 CLR 570.
[8]
Submission 6, p. 4.
[9]
See Associate Professor Alison Duxbury, Dr Rain Liivoja and
Associate Professor Matthew Groves, Submission 6,
p. 5; Returned and Services League of Australia, Submission 5, p.
7, quoting Justice Kirby in White v Director of Military Prosecutions (2007)
HCA 29 at 167; Mr Alexander Street SC, Submission 2, Appendix 1,
pp 14-21.
[10]
Submission 2, Appendix 1, pp 14-21.
[11]
Submission 2, p. 7.
[12]
Submission 2, p. 7.
[13]
Committee Hansard, 14 September 2012, p. 16.
[14]
Submission 6, p. 5.
[15]
Submission 6, p. 5. See also: Mr Alexander Street SC, Submission
2, p. 4; Returned and Services League of Australia, Submission 5,
p. 16.
[16]
Committee Hansard, 14 September 2012, p. 22.
[17]
Dr Albin Smrdel, Attorney-General's Department, Committee Hansard,
14 September 2012, p. 41.
[18]
EM, Military Court Bill, p. 29.
[19]
Submission 4, p. 2.
[20]
Submission 13, p. 7.
[21]
Submission 11, p. 3.
[22]
Submission 5, p. 5.
[23]
Submission 5, p. 6.
[24]
Committee Hansard, 14 September 2012, p. 16.
[25]
Committee Hansard, 14 September 2012, p. 17.
[26]
Committee Hansard, 14 September 2012, p. 18.
[27]
Response to questions on notice, provided on 24 September 2012, pp 1-2.
[28]
Submission 15, p. 1.
[29]
Response to questions on notice, provided on 24 September 2012, p. 2.
[30]
EM, Military Court Bill, p. 2. See Ms Gabrielle Appleby and Professor John
Williams, Submission 3, pp 4-5; Associate Professor Alison
Duxbury, Dr Rain Liivoja, Associate Professor Matthew Groves, Submission
6, pp 2-3.
[31]
Submission 3, p. 5. See also: Professor John Williams, Committee
Hansard, 14 September 2012, pp 21-22; Returned and Services
League of Australia, Submission 5, p. 17.
[32]
Submission 2, pp 8-9.
[33]
Submission 5, p. 17.
[34]
Committee Hansard, 14 September 2012, pp 23-24.
[35]
Submission 11, p. 8.
[36]
Submission 11, p. 10.
[37]
Committee Hansard, 14 September 2012, p. 21.
[38]
Committee Hansard, 14 September 2012, p. 40.
[39]
Committee Hansard, 14 September 2012, p. 40.
[40]
Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard,
14 September 2012, p. 51.
[41]
EM, Military Court Bill, p. 29.
[42]
Submission 4, p. 2.
[43]
Submission 12, p. 2.
[44]
Submission 12, p. 2.
[45]
For example, see Mr Paul Willee QC, Law Council of Australia, Committee
Hansard, 14 September 2012, p. 11.
[46]
Committee Hansard, 14 September 2012, p. 5.
[47]
Response to questions on notice, provided on 24 September 2012, p. 1.
[48]
Committee Hansard, 14 September 2012, p. 25.
[49]
Submission 11, pp 3-5.
[50]
Submission 11, p. 3.
[51]
Committee Hansard, 14 September 2012, p. 31.
[52]
Submission 11, p. 11.
[53]
Submission 11, p. 13.
[54]
Submission 13, p. 8.
[55]
Committee Hansard, 14 September 2012, p. 41. See also: Mr David
Fredericks,
Attorney-General's Department, Committee Hansard, 14 September 2012, p. 39.
[56]
Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard,
14 September 2012, p. 50.
[57]
Mr Geoff Earley AM, Inspector General Australian Defence Force, Committee
Hansard, 14 September 2012, p. 33.
[58]
Response to questions on notice, provided on 24 September 2012, p. 2.
[59]
Submission 14, p. 2.
[60]
Submission 14, p. 3.
[61]
Senate Foreign Affairs, Defence and Trade References Committee, The
effectiveness of Australia's military justice system, June 2005, p. 101.
[62]
Section 3, Defence Force Discipline Act.
DISSENTING REPORT BY LIBERAL SENATORS
[1]
Mr Alan Abadee, Returned and Services League, Committee Hansard,
14 September 2012, p. 2.
[2]
Mr Neil James, Australia Defence Association, Committee Hansard,
14 September 2012, p. 3.
[3]
Submission 2, pp 14-21.
[4]
Submission 2, p. 9.
[5]
Mr Paul Willee QC,
Chairman, Military Law Working Group, Law Council of Australia, Committee
Hansard, 14 September 2012, p. 15.
[6]
Mr Neil James, Australia Defence Association, Committee Hansard, 14
September 2012, p. 5.
[7]
Ms Margaret Meibusch, Attorney-General's Department, Committee
Hansard, 14 September 2012, p. 44; Mr David Fredericks,
Attorney-General's Department, Committee Hansard, 14 September
2012, p. 46.
[8]
Ms Margaret Meibusch, Attorney-General's Department, Committee
Hansard, 14 September 2012, p. 44; Mr David Fredericks,
Attorney-General's Department, Committee Hansard, 14 September
2012, p. 46.
[9]
Attorney-General's Department, response to question on notice, provided
on 26 September 2012, p. 1.
[10]
Submission 13, p. 10.
ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
[1]
Committee Hansard, 14 September 2012, p. 16.
[2]
Ms Gabrielle Appleby and Professor John Williams, Submission 3,
p. 5.
[3]
Submission 6, p. 2.
[4]
Submission 6, p. 2.
[5]
For example, Australia Defence Association, Submission 13, p. 6 and Ms
Gabrielle Appleby and Professor John Williams, Submission 3, p. 4.
[6]
Submission 11, p. 3.