Defence (Amendment) Bill 2011: Second Stage

Wednesday, 6 July 2011

Seanad Éireann Debate
Vol. 209 No. 4

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Question proposed: “That the Bill be now read a Second Time.”

Minister for Defence (Deputy Alan Shatter): Information on Alan Shatter  Zoom on Alan Shatter  I am very pleased to present this Bill to the Seanad. It is the first item of legislation to be brought before the Seanad in my defence capacity. Anyone seeking to join the Defence Forces chooses a very challenging and demanding career but one that is also very fulfilling and rewarding. Each member takes a solemn oath to be faithful to Ireland and loyal to the Constitution, marking them out from every other profession. In addition, each member undertakes to obey all lawful orders issued by a superior officer and to submit to the unique code of discipline that is an essential ingredient of military life. The men and women of our Defence Forces have from time to time been asked to undertake dangerous and difficult missions on our behalf, both within the State and while engaged in peace support or humanitarian missions abroad. I do not need to remind anybody of the high regard in which our military personnel are held at home and overseas. Indeed, our military personnel are widely admired for the outstanding commitment and professionalism they exhibit. Ireland is currently contributing some 560 Defence Forces personnel to 11 missions throughout the world. Also, approximately 150 additional personnel who have been on standby for rapid deployment as our contribution to the Nordic battle group were stood down at the end of June.

The Defence Forces are now planning and preparing for Ireland’s participation in the Austrian-German battle group, which will be on stand-by for the second six months of 2012. In November 2010, the UN requested Ireland and Finland to contribute a mechanised infantry battalion amounting to 500 personnel to the United Nations Interim Force in Lebanon, UNIFIL. The Defence Forces deployed an advance group of the 104th Infantry Battalion to southern Lebanon on 30 May 2011 and the main contingent deployed on 23 and 27 June 2011. The Irish battalion, comprising 437 personnel, is based in sector west of the UNIFIL area of operations, centred on the major towns of Tibnine and Bint Jubyal and the blue line, which separates Lebanon and Israel. The Irish contingent will be joined by the Finnish armed forces early next year to form a joint Irish-Finnish contingent.

[281]A contribution of 560 personnel to overseas missions is a very significant contribution in the context of the reduced resources available and reflects the Government’s continued commitment to international peacekeeping and to the ongoing development of the Defence Forces. Over many years our Defence Forces have continued to evolve through an ongoing process of modernisation, organisational restructuring, enhanced training and with significant investment in new equipment. The Department of Defence and the Defence Forces have spent the last decade progressively improving the quality of services provided to client organisations at home, to the security of the State and enhancing our peacekeeping capacity overseas. Prior to the current economic difficulties, the modernisation agenda and the associated development strategy outlined in the White Paper on Defence in 2000, delivered significant efficiencies in the defence organisation. Since 2000, new capabilities have been developed throughout the organisation, even though civil and military staff levels have been reduced significantly. The Permanent Defence Force has reduced in size from 15,201 members in 1981 to 9,650 members on 31 May 2011, the latest date for which figures are available.

The ability of the Defence Forces to continue to maintain the high standards demanded of them requires complete clarity with regard to the exercise of command authority, whether at home or abroad. In order to maintain standards and rise to the challenges of a military environment and all of the associated tasks, it is important to uphold a chain of command that is clear and unambiguous at all times. This is critical to the maintenance of unit cohesion and operational effectiveness. The importance of upholding an independent, effective and efficient system of military discipline cannot be underestimated. Discipline is the essence of a military force. Commanding officers are responsible for discipline within their units. They exercise authority primarily through leadership and by inspiring the confidence, loyalty and trust of all those they command. This is underpinned by the legal authority given to commanders in respect of soldiers under their control.

In that regard, it goes without saying that the Defence Forces must retain the power to enforce discipline through its own unique code of discipline within the military justice system. This disciplinary code must support operational effectiveness. It must be efficient and effective and above all else, it must be fair to the individual. The system of military discipline is provided for under Part V of the Defence Act 1954. Following the enactment by the Oireachtas of the Defence (Amendment) Act 2007, military disciplinary procedures were brought up to date in order to reflect developments and innovations both in Ireland and internationally and ensure that members of the Defence Forces have an effective and modern disciplinary and judicial system. The 2007 Act created a system that reflects the civil legal process to the extent possible in a military environment. The Act radically overhauled the procedures for the investigation, summary disposal or trial by court martial of offences against military law committed by persons subject to military law. In summary, the 2007 Act provided for the summary disposal of charges against military law; the establishment and jurisdiction of the summary courts martial; the appointment of a courts martial administrator, a Director of Military Prosecutions and a military judge; the constitution of courts martial and membership of a court martial; matters of procedure before courts martial, including the award and execution of punishments and the suspension of sentences; and the establishment of a courts martial rules committee and the making of court martial rules.

The first case to be tried under the new military justice system was held on 9 September 2008 in Cathal Brugha Barracks, Rathmines, Dublin. Since then 39 cases have been heard before the military judge. There are currently 22 cases awaiting dates for court-martial and in total there have been three appeals to the Courts-Martial Appeal Court. The new military justice centre in McKee Barracks in Dublin was officially opened on 6 July 2009. This facility [282]boasts a modern courtroom with built in digital audio recording system, waiting area, consultation rooms, and related administrative and office facilities.

The Bill before the House is technical in nature and seeks to address a number of issues identified subsequent to the enactment of the Defence (Amendment) Act 2007 which need to be addressed to ensure the smooth and continued operation of the military judicial system. As with any new system there is always a period of bedding down as an organisation adapts to new processes and procedures.

The first of these issues concerns the provisions in the Act of 2007 relating to the posts of director of military prosecutions and military judge. These provide that to qualify for appointment to these positions, a person must be an officer of the Permanent Defence Force who is a practising barrister or practising solicitor of not less than ten years standing. These qualification criteria mean that there are limited qualified personnel in the Permanent Defence Force for these posts. It is essential that those eligible for these important posts have the necessary experience to discharge the duties of the position. However, the current criteria result in there being a very limited pool of officers who are eligible at any one time to compete for these posts. Given the small pool of legal officers this issue is likely to continue into the future.

In the context of the continued modernisation of the Defence Forces disciplinary and judicial system, in my view it is essential that competition exists for any appointment to either the post of director of military prosecutions or as a military judge. One of the key elements of the Bill under consideration seeks to ensure that this will be the case.

The second issue relates to the post of military judge. Given the scale of the military justice system one military judge is deemed sufficient to undertake the case load that arises. However, concerns have been raised that if an officer appointed as a military judge had a previous involvement in a case, is ill or absent or otherwise unable to carry out his or her functions, this may give rise to the need for the availability of an alternative judge. For example, given the small cadre of legal officers there are significant possibilities that the judge might have knowledge of persons who come before him or her. Such a scenario is not currently provided for under the Defence Acts and this Bill seeks to address the issue.

The final issue being addressed in the Bill relates to the fact that there are a number of personnel within the Defence Forces who are either qualified barristers or solicitors and use these qualifications as part of their day to day duties but who do not work within the Defence Forces legal service structures. Although the Defence Forces are introducing more clarity in regard to job specification for such posts, which will make clear whether being a barrister or solicitor is a requirement for a particular job, the fact remains that some individuals have been undertaking such work over many years and some clarity needs to be brought as to whether this service meets the service requirements for appointment to the post of director of military prosecutions or as a military judge.

To address the aforementioned issues, the Defence (Amendment) Bill 2011 provides for amendment to the Defence Acts 1954-2007 to expand the potential candidature for appointment to the posts of military judge and the director of military prosecutions to persons other than members of the Defence Forces and for an amendment to the powers of the section committee to determine a candidate’s qualification for appointment to these posts. In regard to the alternative judge, it also provides for the appointment of a Circuit Court judge to perform the functions of the military judge where the military judge is not available for whatever reason.

I move to the specific provisions of the Bill.

Section 1 outlines the definitions for the purposes of the Bill.

[283]Sections 3 and 4 provide that the committee established under section 184(D) of the Defence Act 1954 for the purposes of identifying candidates and informing the Minister of their suitability for appointment to the post of director of military prosecutions, may determine a candidate’s qualification for the post. In addition, the existing legislative provisions mean that there is an extremely limited candidature from within which the post of director of military prosecutions can be filled. In this context sections 3 and 4 also provide for an expansion of the potential candidature for appointment to the posts of the director of military prosecutions to persons other than officers of the Permanent Defence Force.

Sections 5 and 6 provide——

An Leas-Chathaoirleach: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  I hate to interrupt the Minister but am disappointed that the Members present do not have a copy of the Minister’s speech. This is the second time this issue has been raised. We would like a copy of the Minister’s speech to be circulated, either simultaneously with delivery or afterwards.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I appreciate that and do not know why it was not circulated. We will make the necessary arrangements for its circulation. I gather——

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  It is arriving.

An Leas-Chathaoirleach: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  In the nick of time, tá sé ag teacht.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  On a point of order, it would be good if word went back to officials. I realise people are very busy but this is happening with increased regularity. As the Minister can imagine, we are in a much better position to scrutinise legislation if we have a chance to follow his speech, although he is, of course, very clear.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  Some of the difficulty is due to the fact that there are many new officials in the Houses.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  That is understood.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  They are coming to terms with the exigencies of what is required. I apologise that the script is being delivered later than anticipated. I shall continue on sections 5 and 6 of the Bill, found in the latter part of the script.

Sections 5 and 6 provide that the committee established under section 184(K) of the Defence Act 1954 for the purposes of identifying candidates and informing the Government of the suitability of those candidates for appointment to judicial office, may determine a candidate’s qualification for the post of military judge. As with the post of director of military prosecutions, the existing legislative provisions mean there is an extremely limited candidature from within which a person can be appointed as a military judge. In this regard sections 5 and 6 also provide an expansion of the potential candidature for appointment as a military judge to persons other than officers of the Permanent Defence Force.

Section 7 provides that the Minister for Defence, having consulted the Minster for Justice and Equality, may request the President of the Circuit Court to temporarily designate a Circuit Court judge to perform the functions of a military judge under certain circumstances. This would include circumstances where: no person has been appointed as military judge; a military judge appointed under the principal Act is ill, absent or otherwise unable to carry out his or her functions; and where a military judge cannot properly deal with a matter before him or her.

The current position is that if the military judge is absent for whatever reason the military justice system simply cannot function. This is a serious lacuna in the current law. It is[284]essential that the system is capable of functioning at all times and, by providing for circumstances where a temporarily designated Circuit Court judge can perform the functions of a military judge, I seek to ensure that this will be the case, the problem having been properly addressed.

Sections 2, 8, 9 and 10 provide for amendments to section 2 of the Defence Act 1954, the Courts of Justice Act 1947, section 240 of the Defence Act 1954 and section 240(B) of the Defence Act 1954, respectively, consequent to the provisions of section 7.

Section 11 provides for the Short Title, collective citation, construction and commencement of the Bill.

I also advise the House that on Committee Stage I intend to introduce amendments to the Courts-Martial Appeals Act 1983 to provide that a Circuit Court judge temporarily designated to perform the functions of a military judge under section 8 of the Bill may perform the functions designated to a military judge under the Courts-Martial Appeals Act 1983.

I am very pleased to submit this legislation for the consideration of the House. I firmly believe the changes to the Defence Acts 1954-2007 are both necessary and desirable in order to ensure that the military law justice system operates in a smooth, efficient and expeditious manner and continues to contribute significantly to the maintenance of discipline within the Defence Forces.

I look forward to hearing the views and contributions of Senators in their deliberations and reflections on the Bill and I commend the Bill to the House

Senator Denis O’Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  I welcome the Minister to the House. As I outlined on the Order of Business I have some reservations with regard to the thrust of the Bill. I am concerned that the Bill has been dressed up, so to speak, in an effort to get over a certain difficulty in which the Department finds itself. I understand that in July 2010 the selection committee created under the Defence Act recommended a certain officer to be a military judge. That officer was not appointed and there now appears to have been substantial legal doubts raised regarding this eligibility pursuant to section 184(J)(2) of the Defence Act that the individual was not, for the purposes of the Act, a practising barrister of not less than ten years standing.

I listened to the Minister carefully set out his reasons, namely, that there are limited numbers of people available to practise as judges but I would point out that to the best of my knowledge, first, under the existing Act the President may appoint, on the advice of the Government, one or more qualified officers of the Permanent Defence Force to be a military judge or, second, an officer who is a practising barrister or a practising solicitor of not less than ten years standing shall be qualified for appointment as a military judge. Those provisions are already in the existing legislation.

It is a dangerous precedent that the Minister would use this legislation to allow for a particular individual’s circumstances or, alternatively, broaden the scope of the position to allow people who have not the necessary experience, which is the normal remit, be appointed. I understand that where somebody is appointed to a District Court or a Circuit Court he or she must have served a period of ten years service as a solicitor or barrister.

I accept that a limited number of people are eligible for qualification as a military judge but the Minister could amend this legislation because military judges probably do not deal with cases on the same daily basis as District Court or Circuit Court judges in normal civil or criminal law situations. I understand that if the Minister were to reduce the eligibility criteria to, say, eight years there would be a minimum of five personnel within the military service [285]available for consideration. By doing that the Minister would still be allowing somebody with five, six or seven years actual practising ability in the courts to be considered.

Regardless of how well qualified they are for their administrative positions, be it senior people negotiating with insurance companies or whatever, I would have grave reservations about somebody who has no court experience, be it military, civil or criminal, coming in and working as a judge in a given situation. In that regard I have serious reservations about the Bill.

I am sure the Minister and his advisers are well aware of the State (Walshe) v. Murphy, 1981 Law Reports, IR 275, in which the High Court ruled that at the date of his appointment as a temporary justice of the District Court, the first respondent had not been eligible for appointment to that office because he had not practised as a barrister for an aggregate period of ten years and also because he had not been a practising barrister. That drunk driving case was struck down. In essence, the judge had to succumb to the decision of the higher court and relinquish his judicial appointment, albeit a temporary one. I have a serious concern in that regard.

In his introduction the Minister mentioned the valuable work the Defence Forces have done and continue to do. That goes without saying.

I could only support the use of non-military personnel in exceptional circumstances. To a certain extent this Bill is a copy of what the former Minister, Dermot Ahern, proposed 12 months ago with which I did not agree. It did not come to light because there were question marks over the person who was suggested as being eligible. If what transpires as a result of this legislation is that a difficulty with an appointment is got around and we bring in legislation to facilitate one individual or a number of individuals in the armed forces, that will have constitutional import and is an issue I will raise not alone in this House but outside it also. I propose to table amendments for Committee Stage because this is a matter about which I am greatly concerned.

I mentioned on the Order of Business earlier that it is proposed to take both Committee and Report Stages of the Bill tomorrow. I accept that the way the business is ordered is not a matter for the Minister but I am sounding a word of warning that if that happens tomorrow I will object to it both on the Order of Business and subsequently. If it is possible to take Committee Stage tomorrow and Report Stage as early as possible next week it would give us greater leeway in that regard.

I had intended raising a number of issues but it is important that this issue be seen for what it is. I note the Minister is making certain amendments to allow Circuit Court judges, in certain circumstances, take over cases where a conflict of interest arises. That is fair enough but my contention is that the provision in this new legislation is already covered in a similar fashion in the previous Act.

Were any representations made by the Representative Association of Commissioned Officers, RACO, to the Chairman of the Joint Committee on Justice, Defence and Equality? Is that appropriate or what weight would such representations have? Is it appropriate that RACO would have any lobbying influence in terms of who should be appointed as a military judge or indeed any judge? I would be deeply concerned if it transpires that RACO, through one source or another, lobbied people in this House or the other House on the appointment of a particular individual. I hope it transpires not to be true.

Is the Minister aware of any concerns expressed in the wider military community regarding the conduct of the selection process in 2010? I understand, although I may be incorrect, that a number of submissions from retired members of the Defence Forces were made expressing grave concern at the manner in which this was handled and that it represented a further disturbing development. Have such representations been made? Have they been brought to the [286]Minister’s attention? What will be the response to those? I will not name anybody but I am talking about very senior personnel who are now retired. One very prominent individual who has now gone to his eternal reward expressed deep reservations that the mechanism by which this Bill is trying to achieve its purpose failed less than a year ago. If that mechanism is being used to get around a particular difficulty, and the Bill is being dressed up in a number of other ways, it is seriously flawed and is likely to be challenged on a constitutional basis in another forum.

There is a provision in the Bill to allow the Minister deal with this matter from among the existing personnel who have legal experience and qualifications. By reducing the qualification period from ten years to eight or perhaps seven years, he would be including a number of qualified people and could have a system of application and interview. That would be a far more appropriate mechanism for dealing with the difficulty facing him and his Department than using this legislation to advance the application of a particular individual, which I believe is a retrograde step.

Senator Paul Coghlan: Information on Paul Coghlan  Zoom on Paul Coghlan  The Minister has been with us on many occasions and is probably spending as much time here as in the Dáil. This is his first time here in his capacity as Minister for Defence, however, and he is, therefore, particularly welcome.

Unlike my colleague opposite, I like the thrust of the Bill because it opens up matters and provides for the expansion of candidature for the posts of military judge and director of military prosecutions to persons other than members of the Defence Forces. As the Minister stated, we may not always have military candidates who are properly qualified to fulfil the obligations of these roles.

I like the provision whereby the Minister for Defence can consult the Minister for Justice and Equality — himself in this instance — in order to request the President of the Circuit Court to appoint a Circuit Court judge to serve in certain circumstances. These circumstances include a conflict of interest based on an appointee’s previous involvement with aspects of a case to be heard, the illness of the military judge, and the lack of a military judge at a given time. We should also consider the other reasons outlined by the Minister. The Minister outlined very well the role and outstanding service to the State of the Defence Forces down through the years. They have served the State very well and we all accept that. They comprise fundamental pillars of our democratic society. As the Minister stated, discipline is an essential part of military life. For all these reasons, this Bill is timely.

With regard to the serious points raised by Senator O’Donovan, I have every confidence that the Minister will deal with them adequately when responding to the debate. Competition is essential when making appointments to posts.

Senator Denis O’Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  I agree.

Senator Paul Coghlan: Information on Paul Coghlan  Zoom on Paul Coghlan  Yes. I would not want to see a closed shop or any restrictive practices creeping in. This would be a considerably retrograde step.

As the Minister outlined, the Defence Forces have rightly earned the respect and regard of the people over the years. Around the world, Irish military personnel are widely admired for their outstanding commitment and professionalism. They are highly trained and well equipped. Our military personnel have consistently shown the highest standards of courage and discipline in responding to the call of duty. From time to time, members of the Defence Forces are asked to undertake dangerous and difficult missions, in Ireland or when engaged in peace support or humanitarian missions abroad. The Minister has outlined several of these.

[287]The ability of the Defence Forces to continue to maintain the high standard demanded of them requires complete clarity with regard to the exercise of command authority, be it at home or abroad. For challenges and dangerous missions to succeed, the chain of command must be clear and unambiguous at all times. This is critical to the maintenance of unit cohesion and operational effectiveness.

Discipline is the essence of a military force. Commanding officers are responsible for discipline within their units. They exercise authority primarily through leadership and by inspiring the confidence, loyalty and trust of their subordinates. Officers and non-commissioned officers receive a world-class military education that emphasises leadership, teamwork and a sense of responsibility for the welfare of the individual soldier. As a result of the high standard of discipline, offences are rare. We in these Houses have seen the result of the expert military education provided to the Defences Forces.

It is important that legislation in the defence area ensures that whatever system of justice applies to the Defence Forces is compatible with all human rights provisions, domestic and international. In this regard, it is important that the system of military justice be fair to all, including members of the Defence Forces who are charged and those who are charged with the Defence Forces’ management system of upholding discipline. In addition, it is vital that all provisions be straightforward, fair and equitable for those involved in the process.

The Defence Forces must have the ultimate power to enforce discipline through their unique code of discipline in the military justice system. The disciplinary code must support operational effectiveness and be efficient and effective. Above all, it must be fair to the individual. The maintenance of discipline is an integral component of an efficient and effective military organisation. Expertise, experience, qualifications and independence must be recognised in the military justice system.

This Bill will allow the Defence Forces to continue their strong tradition of integrity and will help to support the maintenance of discipline among their ranks. A defence force strong on integrity is essential for the continued protection of the State. It is also of benefit in circumstances where Defence Forces personnel serve with and under the remit of international bodies.

Military law is a distinct legal system to which members of the Defence Forces are subject. Most countries have special additional laws and often a legal system applicable to members of the military. Military law deals with issues such as the procedures for military discipline, what constitutes a lawful command and obligations of service personnel. It is important that military law be kept in line with civilian law and developments therein. The openness and expansion referred to by the Minister are compatible with these concepts. The thrust of the legislation in this regard is correct and I am happy to support it.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  Cuirim fáilte roimh an Aire. He is very welcome. I preface what I have to say to him by reminding him I am not in opposition. What I am to say over the next few minutes, however, gives me no pleasure at all. This is a very problematic Bill.

The singer Meatloaf was famous for a song called “Two out of three ain’t bad”. Two out of three of the central proposals of this Bill ain’t bad and I support them. I differ from colleagues in Fianna Fáil based on the amendments I will table. It is entirely appropriate to envisage and provide for a widening of the pool of eligible candidates for the posts of military judge and director of military prosecutions by providing that suitably qualified barristers with the required number of years practising as barristers, be they members of the Permanent Defence Force or not, should be eligible for consideration. The enabling of the President of the Circuit Court to appoint temporary judges is entirely appropriate.

[288]It is in respect of the third aspect of the Bill, however, that a very serious problem arises. I refer to the provision to empower the selection committee to make an assessment of whether a candidate is suitable for appointment. It is seriously deficient in terms of transparency in that it is a question of the appointment of a judicial figure. A back-story to this legislation, on which we have not been briefed today, raises the most serious of questions. If the Minister has not been told the full back-story to this Bill, he should be very angry. If Senators have not been told the full back-story, we have the right to be very angry. It is not our role as Seanadóirí to be private investigators. With the greatest of respect to Senator Coghlan, whom I like, it is not enough to say the Minister will no doubt address these matters satisfactorily. This is not an Order of Business debate but a debate on important legislation on the way in which the Permanent Defence Force operates. It is about, among other things, the appointment of judges, one of the most important decisions in which a democratic society can be involved. The back-story which provides a context to what I am saying is very simple and it is that we do not have a military judge in place at present; that there was an appointment procedure; and that an appointment was made. What is also part of the back-story is that it was communicated in writing to the highest levels of the Defence Forces by the highest appropriate level that there was a problem with the individual who had been deemed to be appointed and whose appointment was announced on the Defence Forces website. It was pointed out that the person did not meet the statutory eligibility requirements.

It is for this reason I have major concerns about the Minister stating in his speech, “The final issue being addressed in the Bill relates to the fact that there are a number of personnel within the Defence Forces who are either qualified barristers or solicitors and who use these qualifications as part of their day to day duties”. He spoke about the need to introduce clarity on whether services of this type meet the service requirements for appointment to posts as Director of Military Prosecutions or military judge. The Minister is speaking about it as though it were a matter in the abstract. It is a horse of an entirely different colour for us to be required to consider such legislation in the abstract as though it were about ameliorating in advance some problem that might arise in the future, when what is actually the case is that a problem has arisen about whether the person who was appointed met the relevant selection criteria. This legislation looks suspiciously like an attempt to cure the defect retrospectively.

With all the talk about widening the pool and ensuring competition, the back-story to the legislation raises the suspicion that the provision is not simply about ensuring competition in the future but is designed to eliminate the competition in the present so as to allow, presumably, the appointment of the individual who, as things stand, does not meet the statutory eligibility requirement for the post of military judge. The first issue I wish to raise is the sheer inappropriateness of coming before the House and not apprising us in full of the back-story, because it completely changes the context in which we must consider the proposed amendment.

Senator O’Donovan adverted to the fact that there was considerable lobbying by the representative association of commissioned officers. I understand — in fact I know — that this organisation even obtained a legal opinion on the rights of the person who had been appointed. The advice of the Attorney General was that the person might have a legitimate expectation to the appointment since the appointment had been announced and the job awarded. The legal advice from Mr. John Rogers spoke about consideration being given immediately on whether a letter ought to be addressed to the committee and-or Ann Price of the Defence Forces personnel policy branch indicating plainly that the person in question contends the committee ought not to engage in any further deliberation as it appears to intend, but should rather desist from in any respect seeking to disturb the selection by the committee and the recommendation by the Government to the President.

[289]What is going on here with regard to the appointment of a military judge? We are being told there is lobbying and pressure in the background and we are not hearing about it. The Minister may not be to blame for the fact that a representative association might lobby on behalf of one of its members but how appropriate is it in the context of an appointment of a judicial figure? I am also informed the Secretary General of the Department submitted a reference for the candidate. How appropriate is this in the context of a judicial appointment?

I hope Senator Coghlan is right and that the Minister will address these concerns adequately. I reiterate the point that either the Minister has very good reason to be annoyed with his officials or the Defence Forces, or we have very good reason to be annoyed with him. It is not acceptable to bring legislation such as this before the House when there is such a significant back-story which provides such a stirring context to what we must consider.

I have asked a question and I will also ask whether this is a ready-up to facilitate the appointment of a particular individual. I will now examine what is proposed to allow the curing of the defect. Essentially, the position is that to be appointed to either of these roles a person must be a serving member of the Defence Forces and must have ten years experience as a practising barrister or solicitor. I know the Minister will appreciate the appropriateness of keeping the solicitor in the frame at all times. There is provision in existing legislation which allows for the consideration of a person who might not have experience as a practising barrister or solicitor but who has been ten years in a role for which it was a requirement that they be a barrister or solicitor, and this is entirely appropriate. What is proposed is that the selection committee might consider the qualifications of somebody who is a barrister or solicitor but who has not practised in a role for which it was a requirement that they be a barrister or solicitor and deem that their role and duties somehow put them on the same level as the category I mentioned earlier, namely, the person who is in a position for which it was a requirement and that they might therefore satisfy the requirements of the appointments board.

This raises a major issue of transparency. It raises a questionable legal criterion for the office. It is not transparent. Is an accused person to be subject to someone with a degree of competence that has not been transparently assessed? The legislation will still provide the requirement of ten years as a practising barrister or solicitor but it will allow the proposed selection committee to drive a coach and four through it. Who will be on the selection committee? In the case of the military judge, two out of three members will have been appointed by the Minister, namely, the Chief of Staff of the Army and the Judge Advocate General. Major issues of transparency arise given that the Bill deals with the appointment of judges.

I contend that it is not enough that we postpone Report Stage. We need to postpone the legislation until there has been further and proper public consideration of what has been put before us today and until we as Members of the House have a chance to scrutinise it. It is in everybody’s interests that we do not have judicial review actions in the future in which it will be contended that a person is not suitably qualified. It is certainly in everybody’s interests that we should not have legislation coming before the House which, without the House been informed, has as one of its very significant purposes the desire to remedy a defect or problem that has occurred about which the House has not been informed.

I apologise for going over time and for being so forcefully concerned about this matter but a serious issue has arisen. This is not an Order of Business debate where one side tries to get one up on the other; it is a serious matter of probity. I look forward to hearing the Minister’s response.

Senator James Heffernan: Information on James Heffernan  Zoom on James Heffernan  I join with previous speakers in welcoming the Minister to the House and thank him for his speech. I would like to take this opportunity to give my continued [290]support and best wishes to all of our peacekeepers abroad. Many of my friends have served abroad in places such as Chad and the Lebanon and I wish them continued success.

As the Minister, Deputy Shatter, has outlined the legislation as it stands does not provide for persons who are not members of the Defence Forces to be appointed to the posts of military judge or Director of Military Prosecutions. Hence the need to enact the Defence (Amendment) Bill which is before the House. I contend that as is the case for any other job in the State, a person who is suitably qualified should be allowed go forward for consideration for the post. In many workplaces an employer must go outside some of the criteria laid down to find the best candidate for the job. This is a long established and widely accepted practice, particularly in the private sector.

The Bill proposes that by expanding the criteria beyond membership of the Defence Forces, the potential pool of talent available to the Department will be greatly increased. In doing so, the Bill will make it easier for the Minister to make a more informed decision on who is best to do the job of a military judge. I welcome this measure.

The Bill gives power to the Minister to request that the President of the Circuit Court may temporarily appoint a Circuit Court judge to perform the functions of the military judge in circumstances where, first, no person has been appointed as a military judge, second, if a military judge is unwell and unable to carry out his work and, third, where a military judge appointed cannot properly deal with any matter before him or her by reason of the fact that he or she has a personal interest in the matter or personal knowledge of the facts or the parties that may prejudice the hearing. Will the Minister provide an example of when this third scenario could come into play? I would have taken as given that a person with a personal connection in a particular case would not be allowed to preside over the case. Have problems arisen in this regard?

A case which was reported at around this time last year caused me to wonder about this matter. A trooper serving in a barracks close to me who had been in the service for 13 years arrived at work one hour late on 14 January this year, in the middle of what has become known as the “big freeze”. As a result, she was fined and given a severe reprimand, the most serious judgment below a jail sentence or dishonourable discharge. She was also asked to consider whether her future lay in the Army. Another individual travelling with the trooper was also late but was not punished.

I am concerned about the back-story discussed by Senator Mullen. I hope the Bill is not a case of shutting the stable door after the horse has bolted. If it introduces a fairer and more transparent approach in the legislation governing the Defence Forces and the manner in which individuals are appointed to various positions, I will welcome it.

Debate adjourned.


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