Reforms to Australia's military justice system

164 Pages·2008·7.7 MB·English

The Senate

Standing Committee on
Foreign Affairs, Defence and Trade
Reforms to Australia's military justice system
Fourth progress report

September 2008
© Commonwealth of Australia 2008
ISBN 978-0-642-71948-5
Printed by the Senate Printing Unit, Parliament House, Canberra.
Members of the Committee
Core Members
Senator Mark Bishop, ALP, WA (Chair) (elected Chair on 14 February 2008)
Senator Russell Trood, LP, QLD (Deputy Chair) (elected Deputy Chair on
14 February 2008)
Senator Mathias Cormann, LP, WA
Senator David Feeney, ALP, VIC (from 1 July 2008)
Senator Michael Forshaw, ALP, NSW
Senator Helen Kroger, LP, VIC (from 1 July 2008)
Senator Scott Ludlam, AG, WA (from 4 September 2008)
Senator Anne McEwen, ALP, SA (from 12 February 2008)

Secretariat
Dr Kathleen Dermody
Committee Secretary
Foreign Affairs, Defence and Trade Committee
Department of the Senate
PO Box 6100
Parliament House
Canberra ACT 2600
Australia

Phone: + 61 2 6277 3535
Fax: + 61 2 6277 5818
Email: [email protected]
Internet: www.aph.gov.au/Senate/committee/fadt_ctte/index.htm
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Table of contents

Members of the Committee iii
Overview ix
Executive summary xi
CHAPTER 1
INTRODUCTION 1
Background 1
Progress reports 1
Final progress report 3
Public hearings 4
Acknowledgments 5
CHAPTER 2
ADF DISCIPLINE SYSTEM 7
Australian military court (AMC) 7
Jurisdiction of the AMC 9
AMC—further refinements 12
Military juries 13
Selection process 13
Code of conduct for jurors 13
Summary proceedings 15
Rules of evidence 16
Promulgation of rules of evidence 18
Rules of evidence on appeal from summary proceedings to AMC 20
Appeals on interlocutory points 21
Director of Military Prosecutions (DMP) 23
Office of the DMP—staffing and resources 23
Independence of the DMP 23
Audit of legal officers in the ADF 25
Resources 25
Staffing for the office of the DMP 28
CHAPTER 3
ADF'S INVESTIGATIVE SERVICE 31
Recruitment to the ADFIS 34
Improvements in capability 35
Scene of incident 37
Conclusion 40
CHAPTER 4
ADMINISTRATIVE SYSTEM 43
Delays in the redress of grievance system 43
Referral to service chief—delays 45
Reporting of complaints 46
Learning culture in the ADF 48
Measuring changes in attitude 52
Investigating complaints 53
Managing complaints of unacceptable behaviour 56
Recordkeeping 57
CDF commissions of inquiry (COIs) 58
Role of COIs 59
Arrangements with coroners 61
CHAPTER 5
CONSOLIDATING REFORMS 63
Commitment to military justice system 63
Adequate resources 64
Maintaining the momentum 65
Visibility and scrutiny 65
Discipline system 66
Military justice reporter 66
Judge Advocate General 71
Future of the JAG 72
Funding arrangements for the Office of the JAG 73
Administrative system 74
Inspector General Australian Defence Force 74
Reporting regime 76
Implementation of reforms 79
Chain of command influence 80
Tracking system 80
Claims for detriment caused by defective administration scheme 81
Defence Force Discipline Act 1982 (DFDA) 81
Other matters 83
Consultation 83
CHAPTER 6
CONCLUSION 87
Transparency and accountability 88
Consultation 91
APPENDIX 1
Public submission and tabled papers 93
APPENDIX 2
Public hearings and witnesses 95
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APPENDIX 3
The Committee's recommendations from its 2005 report and the
Government's response 97

APPENDIX 4
Department of Defence, Progress of reforms to Australia's military
justice system—October 2007 119

APPENDIX 5
Department of Defence, Progress of reforms to Australia's military
justice system—June 2008 137

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Overview
In June 2005, the Foreign Affairs, Defence and Trade References Committee tabled a
comprehensive report on Australia's military justice system. It found that the system
needed a radical overhaul. Since then, the Australian Defence Force (ADF) has
embarked on an intensive reform program to improve the system including the
establishment of the Australian Military Court (AMC) and the streamlining and
restructuring of its complaints handling system.
The committee recognises the positive contribution that the reforms have made to the
system. Its primary concern, however, is with ensuring that the reform program
maintains its momentum and that the gains made to date are not lost. The committee is
aware, however, of Defence's history of failed reforms: of its inability to make lasting
change. Indeed, it was that history that forced the committee in 2005 to call a stop and
to seek major reform at all levels.
To help break this cycle of failed reforms, the committee believes that there needs to
be a set of inbuilt safeguards.
Four pillars: transparency, accountability, independence and scrutiny
It believes that transparency, accountability, proper independence and continuing
scrutiny are the four pillars that will preserve and promote the integrity of Australia's
military justice system. If any one falters, the effectiveness of the system once again
comes under threat. With this in mind, the committee makes the following findings:
• The AMC needs to be more transparent and recommends that its disclosure
regime be improved.
• The Chief Military Judge of the AMC has a vital role, and responsibility, to
contribute to the parliament's understanding of the administration of military
justice by agreeing, when invited, to give evidence before the committee.
• Without doubt the administrative system needs a strong independent and
critical oversight authority responsible for identifying problems in the military
justice system and for auditing and reporting on matters such as the progress
of complaints and the implementation of recommendations arising from
investigations. Although the Inspector General Australian Defence Force
(IGADF) is a statutory appointment, the committee believes that his position
needs to be, and perceived to be, more independent from command. A first
step would be to change the reporting requirements of the IGADF.
• Commissions of inquiry (COIs) are presided over by a civilian with judicial
experience, which has to some degree removed the perception of Defence
inquiring into itself. They could, however, be more open and accountable for
their proceedings and decisions by conducting their hearings in public.
• Defence's failure to consult with external and independent experts when
considering reforms to Australia's military justice system is most concerning.
This attitude indicates that Defence is not only reluctant to be open and
receptive to constructive criticism and new ideas but does not appreciate that
wide consultation and open debate produces better legislation.
The ADF's inability to make lasting change is clearly demonstrated by the problems
that persist with the ADF's police service and learning culture. The process of building
the ADF's investigative capability and improving its learning culture must be regularly
monitored and assessed. In this regard, the committee recommends independent
reviews of the ADF's investigative capability and its learning culture within 5 years
and more analysis and informative reporting on attitudes in the ADF.
The committee also accepts that over time refinements or adjustments may be required
to the reforms implemented during the last two years. It cited for particular
consideration, the conduct and protection of military jurors, an audit of ADF legal
services, and the appeal process to service chiefs.
Monitoring and review
The need for regular monitoring, review, independent assessment and reporting
applies to all aspects of Australia's military justice system including staffing and
resources. In this regard, the committee notes:
• the delays establishing the facilities necessary for the efficient and effective
operation of AMC;
• current problems staffing the ADF Investigative Service which need urgent
attention—it is manned at only 58 to 60 per cent of strength;
• slowness in appointing officers to the Office of the Director of Military
Prosecutions (DMP);
• COIs and the suggestion that Defence resources 'are very stretched';1 and
• the need to ensure that the Fairness and Resolution Branch has the appropriate
level of staffing to prevent a return to the pre-2005 administrative system
which was plagued by lengthy delays in processing complaints and ROGs.
The committee welcomes the appointment of Sir Laurence Street and Air Marshal Les
Fisher (Retd) to assess the effectiveness of the reform program. In the course of the
report, the committee has identified matters that the team may wish to examine as part
of their inquiry.

1 Committee Hansard, 20 June 2008, p. 42.
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