MINISTER FOR DEFENCE PRESS CONFERENCE REGARDING AUSTRALIAN MILITARY COURT

Parliament House, Canberra, 26 August 2009

E&OE

SPEAKER: Minister for Defence, Senator John Faulkner

JOHN FAULKNER:  Well, ladies and gentlemen, thanks very much for coming along today.

            You may be aware that the High Court of Australia today handed down its decision on the challenge to the constitutional validity of the Australian Military Court - or AMC, of course we use acronyms in Defence as you'd appreciate - in the case of Lane versus Morrison.

            The court's decisions and its reasons, I can say to you, do involve some very complex constitutional issues. And I wanted to say to you this afternoon that, as a result, the Government certainly will take time to carefully consider the reasons for the court's decision and ensure an appropriate alternative is developed for the long-term way for dealing with serious service offences.

            Let me just say that, of course, the Government accepts the court's decision and we plan to investigate options for moving the military justice jurisdiction to a court that does meet the requirements of Chapter III of the Australian Constitution.

            The Australian Military Court was established in October 2007 by the previous government, and that followed a series of Senate committee reviews and reports which actually recommended very extensive changes to the system of military justice in Australia.

            Under the AMC, military judges were appointed to preside over cases and they operated separately to the chain of command. However, the AMC stopped short of meeting the Chapter III requirements with respect to the appointment and tenure of judges.

            I think it's fair to say, and I should just note for the record, that of course there were different views at the time the court was established about the form it should take. You'd be aware that the Senate committee certainly recommended a Chapter III court.

            I can say to you that the Government will now review the High Court's decision carefully and consider the options for establishing the jurisdiction in a Chapter III court.

            This is going to require discussions not only with Defence but of course with my colleague, the Attorney-General, as well as with any of the judicial officers who are affected.

            The Government maintains its strong commitment to a military justice system that is just and impartial, a system that of course meets community expectations for transparency and independence, and one that at all times treats ADF members fairly.

            Ladies and gentlemen, in the interim it is critical that the Australian Defence Force has a functioning military discipline system, particularly when it is currently engaged in operations overseas.

            And I wanted to indicate to you today that as an interim measure, the Government will give appropriate priority to legislation that temporarily reintroduces the pre-2007 military justice machinery for trials by court martial and Defence Force Magistrate.

            Reinstating the military justice machinery which pre-existed the establishment of the AMC will allow us time in Government to explore and examine the options for a Chapter III court.

            I can say to you however our commitment in relation to the establishment of a Chapter III court is very clear and that the system of trials by court martial and Defence Force Magistrate will exist only on a temporary basis after urgent legislation is introduced, and I hope passed by both Houses of the Australian Parliament.

QUESTION:   Minister, in the two years of the AMC's operation, how many cases were handled and therefore how many are in limbo because of this decision, thrown into legal doubt?

JOHN FAULKNER:  Look, in relation to the number of cases that are part heard, I can assure you is only a small number. The best advice I have, as I've asked that question myself, is two cases.

            Since the commencement of the court, and I remind you that that was in October 2007, the Australian Military Court has dealt with - as a total number of matters referred to trial, some 212. In terms of matters finalised, 171. I'm advised that there are currently eight matters listed for trial before the AMC, and the balance of matters with the registrar for further action is 33.

            The other statistics I have available, if it's of interest to you, relates to summary appeals to the AMC, and the total number of those has been 19. And the figures I have available to me is that of those 19, 11 have been finalised.

QUESTION:   Minister, of the 171, how many are you confident that the decision legally would still stand, or can't you be confident with any of them?

JOHN FAULKNER:  Well, the - I don't know that it's a matter necessarily for the Minister for Defence to necessarily express confidence in relation to each and every case. But I think a better way for me to deal with the important question that you ask is this: that the - clearly, as a result of the decision of the High Court of Australia today, the validity of the decisions made by the AMC during its existence will be reviewed. That's based on the decision of the High Court. I can assure you that Defence will be seeking advice from the Australian Government Solicitor in relation to the matter that you raise.

            But as you've - as I think you've seen in the press release that you have available to you, it is my intention on the basis of the preliminary advice I have - and I need to stress that with you, this is just literally a few hours since this judgment has come down. On the basis of the present advice I have available, it would be to legislate to ensure that the effect of sentences passed is validated.

            I do want to say, if I can just follow on from your question, say that clearly these are matters that, as Defence Minister, I will be seeking - I've already had a preliminary discussion with my colleague, the Attorney-General. It's certainly the Government's intention to seek advice on these and a range of related issues from the Australian Government Solicitor and all the best legal advice that is available to the Commonwealth as we work through these issues in the aftermath of the High Court's decisions.

QUESTION:   Surely the Federal Government…

JOHN FAULKNER:  In the aftermath of the High Court's decision today. Sorry Paul.

QUESTION:   Surely the Federal Government did seek the best legal advice in setting this court up in the first place? I mean, is this an amazing bungle or what?

JOHN FAULKNER:  As a - well, I'd think you'd appreciate, Paul, that as a minister in the current Government, I wasn't privy… and you would understand this, I wasn't privy nor should I be privy to advices that were provided to the previous government in relation to the establishment of the Australian Military Court.

            I'm not being cute answering the question in that way. I mean, I think you understand how government works. I would expect that - of course that government decisions are made on the basis of best advice, and these are whole of government decisions.

            But you asked me a question that - it's just something that I can't speculate on.

            Look, my responsibility now with the situation that I face as Defence Minister is to deal with the decision of the High Court. And I would respectfully say to you all the approach that I've outlined to you today is a proper, sensible and very much the appropriate way to deal with these circumstances. It's very difficult for me to speculate on circumstances previously.

            Of course, as you would also - you'd be aware that I think every serving senator over the past few years is… would be aware of the attention military justice has received through the Senate committee system. I certainly am aware of that and have had a very close interest in a lot of those issues and heard a lot of evidence provided and questions asked about these issues. But I just can't speculate on the advice offered to previous governments.

QUESTION:   Just on the advice that you have at the moment, and I understand it's complex and I understand that it's early, but legislating retrospectively, has anyone raised with you that that might cause a problem; to go back essentially and say that these things were valid when in fact the High Court has found that they aren't?

JOHN FAULKNER:  Look, from time to time, as you would know, in terms of parliaments dealing with legislation, the issue of retrospective legislation is one that is raised.

            This is something, after the Government has received all its advices from its - from the Attorney-General and other legal advisers, is something that we are going to have to give due consideration to. At this stage, again, obviously those advices haven't been received.

            But I think, given particularly in the chamber that I sit in the Senate, has had such a long and intimate involvement in the military justice issue in the broad, the establishment of the AMC in particular, that parliament will be well aware of these issues and take account of them.

            That is one of a whole raft of issues that the Government is obviously going to need to consider. But I stress with you - and there's an abundance of caution in what I am saying but it's an appropriate caution. I stress with you that will be done with the best advices that are available from the Government's legal advisers. And you'd appreciate that's not available yet and I don't expect it to be with me in a matter of a few hours, given the court decision has only just come down.

QUESTION:   Senator Faulkner, can you actually tell us what sort of offences were involved in the cases that have been heard, and has anybody been incarcerated or punished severely as a consequence.

JOHN FAULKNER:  Thanks for that question Brendan.

            [Laughter]

            I really appreciate it.

            The - I did indicate to you what the number of… or indicated to your colleague the number of matters that have been heard.

            The sorts of cases that the AMC has dealt with - in fact I can say that… perhaps the first thing I should say to you is the issue of misuse of Defence travel cards represents some 40 per cent of the AMC caseload, as I've been advised. In addition to Defence travel card fraud matters, there are other matters such as assaults, such as acts of indecency, such as theft, conduct - prejudicial conduct charges. And these are the sorts of cases that represent the major proportion of charges referred to the AMC.

            Some examples of this, to give you an indication if this would assist you in relation to both offences and penalties, if you like, there was one theft charge under Section 47C of the DFDA. There was a guilty plea; a finding of guilt of course; and a punishment of reduction in rank.

            There were two acts of indecency without consent. Under the Crimes Act ACT Section 60; a not guilty plea; finding of guilt; and the punishment of forfeiture of seniority.

            Three examples of - or cases of misuse of Commonwealth credit cards under the FMA Act. These matters related to misuse of sums of money under $1000. There was a guilty plea; a finding of guilt; and punishment of a fine of $1400 and a severe reprimand.

            One assault occasioning actual bodily harm under the ACT Crimes Act; a not guilty plea; finding of guilt; and punishment of 63 days detention, 14 days suspended. One of prejudicial conduct under Section 60 of the DFDA. One of damaging property under the Criminal Code ACT, Section 403. One of damaging or destroying service property DFDA Section 43(2); a guilty plea; finding of guilt; and punishment of 49 days detention, 21 days suspended.

            So this gives you, if you like, a sample of the sorts of offences and the sorts of penalties.

            I suppose if I - Brendan, just to perhaps complete the picture the you and your colleagues, it is important of course to remember that the AMC hears both disciplinary matters - for example, being absent without leave, and disobeying a lawful command - and service offences that actually have civilian equivalents, civilian equivalents in criminal law. So that - are the issues such as, if you like, theft or assaults subject to of course the jurisdictional limits that you find in the Defence Force Disciplinary Act.

            So they're - that, if you like, I think completes the picture in relation to the sorts of offences that we're speaking of.

QUESTION:   Minister, how long is it going to take to sort this out? Are we looking at another couple of years?

JOHN FAULKNER:  Look, I certainly hope not. I can say that I would be hoping to introduce - I should say reintroduce legislation into the Senate in very short order. I've never taken for granted the parliamentary process or the Government's legislative timetable, as you'd appreciate.

            But I expect not only my own colleagues, but I expect that the parliament will ensure that priority is given to the pre-2007 legislation which, of course, reintroduces the military justice machinery that existed before that time. I'd expect priority to be given, as I say, I'm sure my own colleagues and I expect colleagues on all sides of the Australian parliament will understand the urgency.

            And it will take some time, it will take some time to ensure that our new Chapter III Court is - we get it absolutely right. I can assure you that I'm very, very committed to getting this right. And if that takes a few extra weeks, or even a couple of extra months, I will do that in these circumstances. And we'll be throwing a lot of resources, certainly in consultation with my colleagues, including the Attorney-General, but also the best legal advisers that the Government, has to ensure that we establish a military justice system in Australia that stands the test of time.

QUESTION:   Minister, I noticed the CDF is in attendance with you today. Would you object to us putting a question to the CDF about the importance of a functioning military justice system?

JOHN FAULKNER:  No, no, I wouldn't. But let me say why don't you completely deal with me and then if CDF is happy to answer any questions, matter for him. CDF generously said he'd like to accompany me to this press conference which I appreciate. And if he's willing to answer your questions, I'll leave that to him. But please let's deal with that when you've concluded questions to me.

QUESTION:   Is there a consensus that you've outlined - some where out to durations of 49 days - would there, or should there be anyone who's serving detention today, who could be released because of this judgment passed.

JOHN FAULKNER:  This is something I simply don't know the answer to. It's something about which - advice currently is being considered. But at this stage I'm just not in a position to be able to provide that information to you.

            I took a decision that I thought, given the significance of the court's decision earlier today, that it was important to provide you with what information I could, at this stage. And my office and officials from defence will obviously assist you in trying to work through any other issues of concern you have.

            At this stage I don't have advice on that matter. I'm hopeful, at some point, that we had one; not even sure, at this stage, that there is anyone even in that position. I'm not even sure there's anyone at all in that position.

QUESTION:   Minister, given the concerns that led to the setting up of the military court, the new military court in the first place, what confidence can the ADF personnel have that in going back to the old system, that they will indeed be treated fairly and transparently?

JOHN FAULKNER:  Well there certainly were concerns Paul that led to the establishment of the AMC. My commitment, and I think this is the appropriate one for me as the Minister for Defence, is to resolve the long-term future of the service tribunal system and obviously provide certainty.

            I think it's important, as we do that, to do this in a - obviously we need to this as quickly as possible. But we need to examine the implications of the decision that has been made today, for both past and current AMC cases. I think it is important that the legislation take necessary action to ensure the validity of past sentences. And, of course, we've got an issue here in relation to any ongoing cases where we need to minimise disruption.

            I think it is important, as all these issues are addressed, that as the Minister for Defence, I take care to ensure that all the positive improvements - and there have been many made to the ADF disciplinary system since 2005 - are retained, and if required, are refined as appropriate. But I do want to stress with you that there have been very important reforms that have been made, that if you would like, I'd be happy to work through with you. But that is - they're the sorts of balances I'll need to take into account.

            I'm looking to the future here, to fix this issue, to get it right, to provide certainty as quickly as possible. And acknowledge, as defence has acknowledged now for a long time, there have been weaknesses in the past and now the challenge is to continue to address those issues, but also deal with the fact that the decision that was made to establish an Australian Military Court is now one which finds itself without constitutional validity.

MALE SPEAKER:    One more.

QUESTION:   Would you agree that the recommendation of the Senate Report in '05, that Chapter III was the appropriate avenue for the establishment of a permanent military court - that recommendation was not accepted by the Government - you'd now agree that the Senate Committee was correct in that judgment?

JOHN FAULKNER:  Look, there's no doubt that the - as you've said Patrick, in 2005 the Senate Committee on the effectiveness of the military justice system proposed an approach which would - which involved serious service offences being tried by a federal court, constituted under Chapter III of the Constitution. There's no question that that was the recommendation. Of course I'm well aware of it and was involved in some of the Senate processes that led to that recommendation and the interface with defence on those issues.

            So yes, clearly that was a recommendation of the Senate Committee. And the points that the Senate Committee was making, I think, it's fair to say stand the test of time well. They stand the test of time well. But my challenge now, with the benefit of the work of the Senate Committee in 2005, is to find and see legislated, an acceptable and sustainable outcome on this issue that satisfies all the legal, judicial and constitutional requirements. And that's precisely what I intend to do.

QUESTION:   Minister, I've got one question I've [indistinct] if possible please? Does the Government support a broader combat role for the ADF in Afghanistan that could mean a different role, [indistinct] an entering force, or the reconstruction troops taking the pressure off the Special Operations Group? And also a move out of the area of operations at the moment in Oruzgan.

            And secondly, I wonder if you could comment on the policy of the targeted killings of Taliban leaders and how that's [indistinct] with a better security of Oruzgan Province?

JOHN FAULKNER:  Well look, let me say this. I've seen, of course, a great deal of media commentary on General McChrystal's 60-day review.

            Let me say at the outset that I think we all need to understand that General McChrystal hasn't provided his review yet to US Defence Secretary Gates. Now the time frame, as I think we all appreciate, is a little longer than the 60 days. But the review hasn't been finalised yet. And it's a report to Secretary Gates; it's a report to the US Administration. And it's very difficult and I might say premature, to comment on the outcomes of a review that actually hasn't yet been provided to the US Administration.

            I think should say to you that, of course, the United States understands that our mission in Afghanistan is focused on training the Afghan National Army's Fourth Brigade in Oruzgan Province. And let me stress that the Prime Minister explained this when he announced the increase in Australia's commitment in April last year.

            I can assure you, in the discussions that I've had, that the US very much understands and appreciates the role of our forces in one of the most dangerous areas on - of Afghanistan. The - I can - I do know that the US and General McChrystal do understand that holding the ground that we have cleared from the Taliban insurgency in Oruzgan Province, is absolutely fundamental to the international security assistance forces counter-insurgency strategy.

            The work that we are doing with the Fourth Brigade is absolutely essential to this holding mission. It's true that in relation to the op - Special Operations Task Group their role also is absolutely critical.

            We should not forget that apart from the United States itself, Australia and its - provides the largest number of Special Forces in Afghanistan and I would suggest to you they're doing an absolutely magnificent job. And the extent to which you've seen in Oruzgan Province, the - during the election period, the extent of the disruption that occurred to that electoral process which was absolutely minimal in the circumstances, I think does great credit to our special forces and the mentoring and reconstruction task force in Afghanistan.

            And I stress with you that the work that they are doing is critically important to the - to security in Oruzgan Province. And I know it is greatly valued by the United States and I know that it is greatly valued by our partners in Regional Command South in Afghanistan.

QUESTION:   Thank you.

JOHN FAULKNER:  Now ladies and gentlemen, if you're willing to…

ANGUS HOUSTON: We've got to do a more [indistinct]. I'm happy to.

JOHN FAULKNER:  Yeah. I'm in your…

ANGUS HOUSTON: I'll just take one question.

JOHN FAULKNER:  Yeah, just take - perhaps CDF can take the one question. This was a - his role was to be part of the audience you see, but…

            [Laughter]

            …anyway, please.

QUESTION:   If you could comment for us briefly on the importance of a functioning military system that you can have confidence in and, therefore, what concern - or how concerned you are today about this - the uncertain period ahead?

ANGUS HOUSTON: I think the minister's covered the ground very comprehensively. But let me just say a military justice system is essential to the workings of the Australian Defence Force. It's important that we're able to give impartial and fair justice to our people. As you know, over the last four years, I've been deeply committed to that and most aspects of the military justice system are working just fine. There's been incredible reform right across the board.

            If you have a look at the Fisher and Street report, it gives us a very good bill of health. There were obviously questions over the Australian Military Court, it's - whether it was compatible with the constitution. I think the Minister's covered that very well. I totally accept the High Court's decision and the Government's response to it and we'll work with the Government to put in place arrangements that ensure that our people are properly taken care of.

            What you should understand is that 96 per cent of the matters that are dealt with, under the military justice system, are done outside of the court. They're handled in what we call the summary system. So I'm confident that we can keep the summary system going and I'm confident that by working closely with the Government, we can come up with suitable arrangements, in the interim, and look forward to working with the Government and putting in place whatever's necessary under the Chapter III arrangements.

            Thanks for…

QUESTION:   So do you think…

JOHN FAULKNER:  That's it. Thanks very much ladies and gentlemen.

ANGUS HOUSTON: Yeah. Can I just add one thing Minister? Afghanistan, I noticed in the paper, I think it was this morning or yesterday, you used the word assassination Mark. Can I just say we reject that totally. We don't indulge in assassination. What we do is we go out and we disrupt the Taliban and when we come across those bleeders, we endeavour to capture them. Sometimes they resist very strongly, in which case they usually end of - up second best. It's not assassination.

            Thank you.

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