Fairbrother Russell: Armed Forces Law Reform Bill — Second Reading 
Fairbrother Russell: Armed Forces Law Reform Bill — Second Reading 
[Volume:642;Page:12173] 
RUSSELL FAIRBROTHER (Labour) 
: 
 In speaking in this reading of the Armed Forces Law Reform Bill I will concentrate on three or four aspects of this comprehensive reform of the criminal process in our armed forces. The Minister Phil Goff in his speech this afternoon made very quick reference to what is a significant change in the structure of our court martial process when he noted that the legislation established it as a permanent court of record. Of course that sets in a whole train of procedures that are now introduced into this bill and become part of the discipline procedures of the armed forces. A court of record of course is a court that has a registrar—in this instance—or a clerk responsible for keeping records. It becomes the court of first instance on any appeal and obviates the need on any appeal to rehear the evidence. The court of record establishes an administrative function of a court and in this bill that is observed by the registrar. 
The immediate change that that has—and it is a change no doubt for the better—is contained in the new clause 139 which will be section 139 of the amended legislation replacing the present section 129. There are two circumstances in which an accused person can object to any person in the court martial about to hear the case against him or her. Under the Armed Forces Discipline Act 1971 as it presently stands a court martial is specially convened for the particular hearing whereas under the amending bill we are considering it is established as a permanent court and thus a court of record. Under the present law the accused person can challenge on two grounds. The first is impartiality—the concern that one or more members of the court martial may not be in a position to act impartially or and I quote from section 129(1)(b) “Is for any other reason ineligible or disqualified.” 
The bill before us now retains the first leg which is the possibility that a member or the court may not be able to act impartially but it restricts perhaps the second leg which is for any other reason. The second leg is now defined by what will be the new section 134—the qualifications of the member—that is that the member of the armed forces has served in the armed forces for a period of 3 years or more and is not disqualified under section 135. If this bill goes through the new section 135 deals with the grounds for disqualification. They are essentially similar to the grounds in what will be section 139(1)(a)—that is issues of impartiality—because they relate to whether the military member is the commanding officer of the accused has been a prosecutor or witness has investigated the charge and similar matters such as that. 
So the power imposed on the registrar under this bill is quite a responsible power that will have to be exercised by that registrar very very carefully because no longer does the court martial itself determine that matter—although no doubt common law would enable that to occur. Under the bill the court martial itself does not determine by a vote of the majority whether a disqualification ground arises. So the registrar assumes a position of considerable importance in ensuring that the subsequent court martial is a fair court martial for the accused person. It will be interesting to see how it develops. It is a move to greater efficiency and it is welcomed but one would hope that the registrar acts with extreme caution bearing in mind some very very considerable authority throughout the Commonwealth particularly in Britain on questions of conflicts of interest. Conflicts of interest must remain as an inherent concern in my argument under the new section 139 as it will be if this matter goes through. 
The other matter about this bill is that clauses 13 and 14 which we find on page 27 go against trends in some Commonwealth countries in relation to the double jeopardy rule and also against the trend that is in fact in business presently before the House with the Criminal Procedure Bill. Clause 13 deals with the circumstances of autrefois acquit and autrefois convict which are the grounds for a double jeopardy defence. A double jeopardy defence of course is a technical defence raised by an accused person at the outset of any charges. It is a longstanding common law tradition and basic principle that has been changed somewhat in the last 10 years in some countries—principally England and two states of Australia. If the argument of double jeopardy is advanced and accepted by the court that brings matters to an end. 
Under clause 13 of this bill the double jeopardy rule is in fact reinforced and given a wide ambit. Clause 13(3) brings in a new subsection (4) to section (21) of the principal Act and relates to a previous acquittal or conviction or any offence taken into consideration by that court martial or tribunal in sentencing him or her for another offence. It goes on to define with some degree of exactitude the width of offences that might have been taken into consideration. This is really a codification of the double jeopardy rule that until this moment has been a common law concept and not often codified. In fact it is very rarely codified—although it is dealt with explicitly in the constitution of Canada and in the US constitution for example. 
This codification of the double jeopardy rule is perhaps at first glance at odds with the Criminal Procedure Bill presently before Parliament. That then takes me to the third area I want to deal with—the quite different concept of discipline in the armed forces as opposed to discipline in civilian life because the armed forces deal with a wider range of circumstances than civilian life. Effectively under armed forces discipline we are giving to an accused person’s superior officer the right to exercise summary judgment in a very expedient way. This is demonstrated no more clearly than in new section 117ZD that gives a cut-off point between when the accused person may have legal representation or not. If the accused person elects to go for a court martial that person has the right to legal representation but if he or she elects to have the matter dealt with summarily then he or she loses the right to legal representation. That is a departure from the New Zealand Bill of Rights Act. I am not saying it is a breach because it has passed that test but the person has 24 hours in which to— 
Christopher Finlayson 
: Since when has Labour been interested in the Bill of Rights? 
RUSSELL FAIRBROTHER 
: At least they can spell it. The accused person has 24 hours in which to reconsider his or her decision to be tried summarily and particularly to lose the right to legal counsel. 
This is legislation that brings the New Zealand Bill of Rights Act into the armed forces law in a direct way but of course it limits the right under sections 24 and 25 in that respect. Again it would emphasise the summary nature of that decision and it would reflect the importance of having fairness of trial. The due process provisions that give rise to fairness are dealt with in the new bill and enable the accused person to agree to a lot of shortened processes such as evidence by statement and various other concessions that accused person may make. A court of review would have to have regard to that due process aspect. But of course in the summary jurisdiction the penalty range is much restricted and in the main relates to a stoppage of grog curtailment of leave or a demotion of rank. So the New Zealand Bill of Rights Act is brought in expressly but is then limited by the decision of an accused person to have the matter tried summarily. I note that the Foreign Affairs Defence and Trade Committee dealt with this aspect and brought in the 24-hour cooling-down period and one would hope that that is enough and that the accused person is free from any influence. 
Finally I will deal with the fact that this bill brings in new section 117ZK to be found at page 73 of the bill. This new section brings in the Evidence Act that was passed this year then limits it in some respects. But this bill adopts into the discipline laws the Evidence Act which quite clearly was intended to be a codified provision. 
This is a welcome change to the armed forces. There are some bold moves in this bill particularly in establishing the Court Martial as a court of record and limiting the New Zealand Bill of Rights Act. I look forward to the Committee stage of the bill.