Groser Tim: Armed Forces Law Reform Bill — In CommitteeText is incorporated into the Bound VolumeGroser Tim: Armed Forces Law Reform Bill — In Committee[Sitting date: 10 October 2007. Volume:642;Page:12263. Text is incorporated into the Bound Volume.]TIM GROSER (National): I will take just a brief call on Part 4 of the Armed Forces Law Reform Bill. Obviously in dealing with the procedural provisions of the Court Martial we are dealing with the more serious offences. I always recall a very experienced European negotiator saying to me years ago: “Those who decry the importance of arguments about procedure do not understand that behind every procedural argument lies a fundamental point of substance.”When we look at the procedures here the first point is that we are moving from a relatively ad hoc process to a permanent court of record. If we look through the other clauses we can see that in clause 122 there are minimum credentials set down for the members of the Court Martial. There are quite clear provisions indicating that a high level of expertise is required. Clause 123 indicates that the judge must have been a practising barrister or solicitor for 7 years or is a District Court judge.The independence of the judiciary here is crucial. I think a lot of members were quite interested in the personal story of Mr Mark. The dangers of what I would call a closed-loop system were very nicely illustrated by his personal story and I think it is very important that we are moving in this direction to end the closed loop. So we are in a situation where the independence of the accused and the independence of the process have a higher level of independence and I think that is highly desirable. The Chief Judge of course is appointed by the Governor-General and therefore does not owe his or her position directly to the military.There are important protections built into Part 4 concerning the security of tenure for the judge. In clause 128 we see that a judge may not be removed except by the Sovereign or the Governor-General acting upon the address of the House of Representatives and there is a specific set of criteria relating to that. That is quite important in terms of securing the independence of the process and procedure.Equally if we look at the constitution of the Court Martial we can see a gradation of the process depending on the seriousness of the offence. We have a situation where there is the one judge and then the serving officers. The serving officers from memory have to have served for a minimum of 3 years so they have to have at least some experience and in the case of more serious indictable offences carrying potentially very significant prison sentences—I forget the number of the clause concerned—there have to be five military officers of the Court Martial. For lesser offences I recall the figure is three.In Part 4 we have these protections built in for the more serious offences. Parallel to this we have the default option of civil procedure except where the special circumstance of the military require it to be varied in accordance with realities facing the military process. We also have in clause 139 provision whereby the accuser may object against the assignment of a person as a military member and there are various provisions set down. That is quite a rigorous process. The objection has to be lodged in writing and it has to be quite specific. It cannot be just some generalised “I don’t like the look of her or him.”We have in Part 4 the setting down of the procedures for the more serious offences that will be governed by the Court Martial a lot of additional precision and a lot of protection for the process and I think it will give rise in due course to something that is more independent something more rigorous and something that I trust will serve the test of time.