Bills Digest no. 63 2005–06
Defence Legislation Amendment Bill (No. 2)
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Amendment Bill (No. 2) 2005
Date Introduced: 12
Commencement: Sections 1 to 3; Items 2, 100 105,
108 and 115 of Schedule 1; and Items 1, 2, 5 and 7 of Schedule 2,
commence on the day on which the Act receives Royal Assent.
Items 1, 3-99, 106, 107 and 109-114 of Schedule 1; Items 3 and 4
of Schedule 2, commence on a day to be fixed by Proclamation or if
any provisions(s) do not commence within 6 months of the Act
receiving Royal Assent, on the first day after the end of that
The Defence Legislation Amendment Bill (No. 2) 2005 (the Bill)
is the first instalment in a planned suite of legislation that is
intended to address problems in the Australian military justice
system.(1) Recommendations from several reports into the
Australian military justice system, dating from 1997 to 2005, are
included in the Bill.
An overview of the Australian military justice system can be
found in Chapter 2 of the 2005 Senate Foreign Affairs Defence and
Trade References Committee s Report into the Effectiveness of
Australia s Military Justice System (the
This Bill makes various amendments to the Defence Force
Discipline Act 1982 (DFD Act) and Defence
Act 1903 including the creation of three new
- Director of Military Prosecutions (Director),
- Registrar of Military Justice (Registrar), and
- Inspector General of the Australian Defence Force
The positions of Director and Registrar, along with the newly
created superior authorities , will take over the responsibilities
of convening authorities . Currently, the DFD Act provides that
convening authorities are responsible for prosecution functions
including determining whether to proceed with a charge, and also
for administrative duties associated with trial and case
management. Under the Bill, these duties will largely be divided
between the Director and Registrar. Some duties now undertaken by
convening authorities, such as arranging legal representation for
an accused person, will pass to the superior authorities . The Bill
provides for the appointment of superior authorities by the Chief
of the Defence Force (CDF) or a service chief to represent the
interests of the Defence Force.
The positions of Director and Inspector-General were created
administratively in 2003. The position of Registrar also currently
exists. What the Bill does is provide a legislative base for these
appointments. These appointments will be made by the Minister. The
Bill sets out their functions and terms of remuneration. In
particular, the Director s duties will be greatly expanded under
the Bill to include many of the prosecution functions now
undertaken by convening authorities.
The Bill largely reflects the recommendations pertaining to
military justice contained in two previous reports by:
- Mr James Burchett, QC, in his Report of an Inquiry into
Military Justice in the Australian Defence Force, July 2001
- Brigadier the Honourable Justice A.R. Abadee in his Study
into the Judicial System under the Defence Force Discipline Act,
1997 (the Abadee Report).
To a lesser extent, the Bill draws upon the
Senate Report. The Government has noted that there will be a
need for further legislative amendments as additional parts of the
Government Response to the Senate Foreign Affairs, Defence and
Trade References Committee Report on the Effectiveness of
Australia s military justice system, October 2005
Response)(4) are implemented in the future.
The Abadee Report was an internal report commissioned by the
Department of Defence in 1995 by the then CDF, General Baker, and
submitted to him in August 1997. The recommendations of, and the
Department of Defence response to, the Abadee Report, were
published as Appendix E of the 1999 report by the Joint Standing
Committee on Foreign Affairs, Defence and Trade titled Military
Justice Procedures in the Australian Defence Force (Joint
Standing Committee Report)(5) released in June 1999.
The Abadee Report itself is not widely released, or readily
available. To assist with the preparation of this Bill Digest, the
Department of Defence kindly provided an edited copy to the
Justice Abadee outlined the philosophy guiding the preparation
of his report when he wrote that:
the integrity of the chain of command can only be
preserved if discipline is inculcated at each level of the military
hierarchy and there exists a system of justice which is
specifically designed to respond to the unique needs of the
military. Discipline is at the heart of efficient and effective
military forces. This reality explains and justifies the existence
of a separate justice system, with a unique Code of Service
Discipline so important it should be embodied in a separate
In his report Justice Abadee often compared the Australian
military legal system with that of Canada and the UK. In
particular, he noted the distinction between, what he termed,
military offences and civilian offences .(7)
Justice Abadee maintained that the legal process needed to be
one that would not compromise the integrity of the senior military
chain of command and, as such, needed to function within a military
environment and be run by military officers.
Joint Standing Committee Report reported that Justice Abadee
specifically recommended greater autonomy be granted to defence
legal personnel from the normal military chain of
command.(8) In addition, Justice Abadee was of the view
that many of the senior legal personnel should be Reservists who
could bring civilian experience to military courts martial in
particular. His report strongly advocated the continued employment
of Reserve legal officers in the permanent military justice system
because the civilian influence is extremely strong in the
Australian military context (9).
Report was submitted to the then CDF, Admiral Barrie, in July
2001, and publicly released by the CDF on 16 August 2001. The
Burchett inquiry was instigated to investigate the Australian
military justice system because of reports and perceptions of
numerous incidents of unacceptable and violent behaviour across the
Australian Defence Force (ADF) as well as the use of illegal
punishments being used instead of recourse to the DFD Act.
The Burchett Report noted that, as of 2001, there continued to
be objectionable practices in terms of training and justice
occurring at military institutions:
Under the heading Keeping Things In-House
, reference is made to the suggestion, which came up in discussion
groups, that COs [Commanding Officers; personnel ordinarily of the
rank of Lieutenant-Colonel equivalent] were tempted to maintain
appearances in respect of their commands by keeping matters that
ought to be prosecuted in-house . Sometimes, of course,
this may have been the observer s perception. But sometimes it may
However, in the opinion of Admiral Barrie (the CDF at the time),
the Burchett Report found that there was not a culture in the ADF
of widespread or systemic avoidance of due disciplinary processes
or the use of violence to maintain discipline.(11)
The Burchett Report recommended that the military establish an
office of Director of Military Prosecutions as an independent
prosecutorial authority for the ADF. It was intended that this
office would undertake prosecutions of members of the ADF facing
trial by either court martial or Defence Force Magistrate (or DFM)
under the DFD Act.(12) The implementation of this aspect
of the Burchett Report recommendations is reflected in provisions
of the Bill for the appointment of the statutory office of
In April 2001 the Joint Standing Committee on Foreign Affairs,
Defence and Trade handed down its report, Rough Justice - An
Investigation into Allegations of Brutality in the Army's Parachute
Battalion, Report No. 99 (Rough
Justice Report),(13) about allegations of misconduct
in the 3rd Battalion, Royal Australian Regiment. In
August 2001, when the Burchett Report was made public, Admiral
Barrie was moved to make the following comments on the Rough
Justice Report in the context of the broader issue of the general
effectiveness of the Australian military justice system:
there are some matters of concern in a small
number of units. I want to assure everybody in the Australian
community, everyone of those matters will be investigated actively
A number of personal issues raised by individuals
are also the subject of ongoing examination. Again I want to stress
these ongoing issues are few in number and are now being dealt with
properly and expeditiously.(14)
Despite the assurances offered by CDF Admiral Barrie at the time
the Burchett Report was publicly released in 2001, public
perception remained that there continued to be significant problems
with the Australian military justice system. On 30 October 2003 the
Senate referred the matter of the effectiveness of Australia s
military justice system to the Senate Foreign Affairs, Defence and
Trade References Committee (the Committee). The Committee conducted
an inquiry, resulting in the tabling of the
Senate Report in June 2005.
The Committee received evidence detailing a series of flaws in
investigations, prosecutions, tribunal structures and
administrative procedures used by the military justice system in
Australia. Significantly, the Committee found that:
Despite several attempts to reform the military
justice system, [ADF] personnel continue to operate under a system
that, for too many, is seemingly incapable of effectively
addressing its own weaknesses. This inquiry has received evidence
detailing flawed investigations, prosecutions, tribunal structures
and administrative procedures.
A decade of rolling inquiries has not met with the
broad-based change required to protect the rights of Service
personnel. The committee considers that major change is required to
ensure independence and impartiality in the military justice system
and believes it is time to consider another approach to military
The Senate Report recommended, amongst some 40 recommendations
- the referral of all civilian and all criminal
offences(16) by ADF members to civil authorities (That
is, all offences except strictly military discipline or service
offences which should be prosecuted by the military in order to
- the establishment of a permanent military court under Chapter
III of the Constitution and,
- the establishment of an ADF Administrative Review Board.
To effect the Senate Report recommendations would require
wide-ranging fundamental changes to the Australian system of
military justice. The Senate Report justified its recommendations
for change to the military justice system on several grounds.
Notably, that the submissions to the Committee were made by a range
of military personnel, current and past, of all different ranks, as
well as by civilian Defence employees, community groups and most
poignant of all, the next of kin of deceased members.
(18) The problems with the military justice system,
therefore, were problems apparent across all services and
In respect to the ADF s military discipline system the Committee
After extensive consideration and significant
evidence, the committee considers that the ADF has proven itself
manifestly incapable of adequately performing its investigatory
As to the ADF s disciplinary tribunals, the Senate Report noted
Evidence to the committee cast considerable doubt
over the impartiality of current structures, and argued that
Service personnel's rights to access fair and independent tribunals
are under threat.(20)
In discussing the competency of internal criminal
investigations, the Senate Report noted:
Civilian police investigators, however, are
generally better trained and more experienced in the conduct of
criminal investigations than military personnel. Whilst knowledge
of the military context is important, the attainment of rigorous
and fair outcomes should be the primary aim of a competent system
of military justice.(21)
The Senate Report further observed that:
Civilian management principles of core business
and outsourcing have been widely applied across the military.
Civilian contractors are everywhere, including Iraq, and have
played a significant role in most of the recent ADF operational
deployments. The committee believes the role of a criminal law
system in the 'core business' is past, and it is appropriate to
'outsource' what is essentially a duplication of an existing
The Senate Report argued strongly, not for greater Reserve
appointments, as in the Abadee Report recommendations, but for
increased civilian involvement in the military justice
The Government, as detailed in the
Government Response, has not accepted all of the Senate Report
recommendations and, in fact, has rejected (either in whole or in
part) the three key proposals noted above. It has rejected the
recommendations for the referral of civilian and criminal offences
to civilian authorities and for the establishment of an ADF
Administrative Review Board. It has accepted the recommendation to
establish a permanent military court but not under Chapter III of
There are several additional reports that have either directly
or indirectly questioned the effectiveness of Australia s military
justice system. The
Joint Standing Committee Report and the Rough
Justice Report have been referred to above. Also of
significance is the
Defence Force Ombudsman s report (The ADF: own motion
investigation into how the ADF responds to allegations of serious
incidents and offences), January 1998.(24)
These reports present additional information detailing
shortcomings in the military justice system and recommending review
of that system.
This Bill is the first instalment of the Government Response to
various inquiries into the operation and effectiveness of the
Australian military justice system over the last eight years.
Senator Hill confirmed at Senate Estimates on 2 November 2005
that recommendations made in those previous inquiries had not yet
been enacted, and the Bill in part enacts those previous
recommendations. Senator Hill indicated that he anticipates the
introduction of additional legislation some time in 2006 to further
reform the military justice system.(25)
Government Response states that 30 of the 40 recommendations
contained in the Senate Report will be accepted in whole, in part
or in principle,(26) significantly, the Government
announced it would implement alternative legislative
solutions to a number of the recommendations in the
Senate Report, notably the three recommendations previously
referred to: the referral of some offences to civil authorities,
and the establishment of a Chapter III permanent military court and
an ADF Administrative Review Board.(27)
Recommendation 2 of the Abadee Report questioned the role of
convening authorities in the ADF. Recommendation 4 of the Abadee
Report sought consideration of appointing an independent Director
of Military Prosecutions.(28) To the extent that the
newly created position of Director, and also the Registrar, may be
drawn from the Reserves if the Reservist is in continuous full-time
service and holds a certain specified rank or above, the Bill sits
comfortably with Abadee s Report which advocated the continued
involvement of Reservists in the military justice system.
Parliament should note that, in 1999, the Department of Defence
rejected Abadee s recommendation to establish an independent
Director s position, stating:
A DMP [Director] will not be established.
Convening Authorities will make the decision to prosecute but DPP
style guidelines will be developed. Commanders must retain the
power to prosecute. This is vital especially during operations and
when forces are deployed overseas. Moreover the establishment of a
DMP would place limitations on commanders and would result in
unacceptable delays in the administration of
Despite this objection, a Director was appointed by the
administration in mid-2003, in preparation for a statutory
appointment. The interim role of the Director has been to provide
independent legal advice to commanders to assist them in
determining how to proceed with serious charges, to provide
independent pre-trial advice to convening authorities for all
courts martial and trials by Defence Force magistrates, and to
conduct prosecutions at these trials.(30)
The Senate Report observed that the position is currently
part-time (one day per month) with the Director based in Melbourne
and the office and staff based in Sydney. The Senate Report
supported the establishment of a statutory Director of Military
Prosecution position.(31) The Bill, by enacting a
statutory full-time appointment, will consolidate the Director s
position and its functions.
Under the Bill, the Director will be appointed by the Minister.
The Director will also be required to submit an annual report to
Parliament may wish to reflect whether the subordination of the
Director to Ministerial authority sufficiently removes the Director
from outside the influences of the military chain of command in
light of the following view expressed in the
The Senate Report noted that internally appointed administrators
of military justice remained subservient to their military
superiors and this was perceived to be both a problem and perhaps
to have contributed to miscarriages of military justice in that
claims were not actioned. The Committee remained concerned that if
such an environment were maintained, those seeking justice would
find it difficult to receive a sympathetic hearing given the
collective careers of those administering the military justice
system of the ADF remained subject to higher military command.
Under the Bill, the Director will not be appointed internally,
but will nonetheless be an appointment made from within the
military ranks. One of the eligibility criteria for appointment is
that the Director must either be a permanent member or a Reservist
rendering continuous full-time service (new section
188GG). Thus, the Director will still remain subject,
albeit indirectly, to higher military command. This may be less
problematic if the Director is a Reservist which is the case at
present. The Committee believed this was highly desirable as the
occupant of the position requires considerable civilian and
military legal experience and sufficient civilian experience cannot
generally be readily acquired by permanent ADF legal officers.
Specifically, the Senate Report expressed reservations regarding
the rank of the person to be appointed Director when it observed
The proposed DMP [Director] role, of making the
decision to prosecute charges, will take over that function from
some thirty or so one and two star General equivalent officers.
However, under the current rules the DMP [Director] cannot be above
a Colonel rank or equivalent. This means that a person expected to
exercise independent judgment operates in the shadow of, and in the
service of, the command chiefs who have ultimate power over his or
her future (and in particular, future
Under the Bill, the Director s minimum ranking has been
increased to Commodore, Brigadier or Air Commodore, that is, a one
star General, in line with Recommendation 14 of the Senate Report.
(See Appendix 1 Current Ranks in the Australian military). However,
the Senate Report s comment still stands in so far as a statutorily
appointed Director may still operate in the shadow of the more
senior command chiefs depending upon the level of the appointment.
(See further comments as to rank, under Superior authorities ).
The nature of the appointment is important because, under the
Bill, the Director powers relate to civilian, criminal and military
discipline offences, not just military discipline offences as was
recommended in the Senate Report. Specifically the Senate Report
recommended that the Director should only initiate a prosecution in
the first instance where there is no equivalent or relevant offence
in the civilian criminal law. (34) The Government did
not agree to this.(35) The Bill merely transfers the
existing prosecution powers of convening authorities to the new
position of Director.
Those powers are extensive. For example, even if
a new trial has been ordered by a reviewing authority, the Defence
Force Discipline Appeal Tribunal or the Federal Court, the Director
may decide not to proceed to a new trial if of the view that there
is not sufficient cogent evidence to proceed.(36) An
added dimension to this analysis is that, under the amendments in
the Bill, one of the Director s functions is to represent the
interests of the service chiefs at any hearing before the Defence
Force Discipline Appeal Tribunal (new section
188GG). These aspects of the current system could be
perceived as blurring the lines of accountability.
It should be observed, generally, that commanding officers are
pivotal to the operation of military justice under the DFD Act.
Notably, since the introduction of the administratively appointed
Director in 2003, commanding officers have tended to pass matters
involving criminal conduct to the Director. The Senate Report
argues that this shows an eagerness by commanding officers to refer
such matters and get on with the core business of training to
fight. The Committee also uses it as evidence for its
recommendation that criminal offences by defence members should
properly be dealt with by civilian courts and not military officers
or tribunals;(37) as noted, a recommendation rejected by
As there will no longer be convening authorities,
the Bill removes the provisions that enable a convening authority
to transfer its responsibilities to another convening authority if
there is a real or potential issue of bias. There are no equivalent
provisions relating to the Director presumably because the office
will have many prosecutors and cases could be allocated to avoid
any such issues. However, whereas there may not be cause for
concern with the comparable position of a public prosecutor, the
complicating factor with the Director of Military Prosecutions is
that this position, and positions within the Director s office,
will be held by military officers. These officers, by reason of
their position within the military, will remain accountable, even
if indirectly, to the military command.
Justice Burchett specifically recommended the appointment of a
Military Inspector General.(38)
An Inspector-General position was created administratively, in
January 2003. The Department of Defence Annual Report 2003-2004
provides an overview of the position as it currently exists,
available at http://www.defence.gov.au/budget/03-04/dar/07_07_igadf.htm.
The functions of the Inspector-General as set out in the Bill will
largely reflect the functions of the position as they are at
Under the Bill, a statutory appointment of Inspector-General of
the ADF will be made by the Minister. In making that appointment,
the Minister must have regard to any recommendation by the CDF. The
Inspector-General must have knowledge of and experience in relation
to military justice issues and an understanding of their relevance
to the role of the Defence Force. The requirement for the Minister
to have regard to the CDF s recommendation and the military
experience requirements for the position of Inspector-General may
bring the independence of the position into question, especially in
light of submissions to the Senate Committee regarding the
independence of the Inspector- General and his
office.(39) The Senate Report specifically questioned
the need for the Inspector-General to have military knowledge
the Defence Force Ombudsman and his staff have
performed their administrative review function for many years
without this military background.(40)
Explanatory Memorandum justifies the approach taken in
the Bill partly on the basis of the Burchett Report recommendation
that the Inspector-General should be directly responsible to the
CDF.(41) The Explanatory Memorandum also
For the position of Inspector General ADF to work
successfully, he or she must enjoy the confidence of Chief of the
Defence Force and be able to work with the Chief of the Defence
The Inspector-General is to provide the CDF with a
means by which to (new section 110A):
- conduct internal audit and review of the military system
independent of the ordinary chain of command; and
- an avenue to examine and expose the failures and flaws of in
that system so as to remedy the causes of any injustice, systemic
The functions of the Inspector-General, set out in
Schedule 2 of the Bill (see Main Provisions), are
not as comprehensive or as explicit as those proposed by the
Burchett Report. However, in some respects, the powers are broader
and, under the Bill, the regulations may prescribe such other
functions (See Schedule 2, Item
2, new section 110C(2)(b)). Burchett, for
example, recommended that the Inspector-General would be:
[Empowered to] investigate, as directed by the
CDF, or as may be requested by a Service Chief, such matters as may
be referred to the Military Inspector General, or to investigate a
matter of his or her own motion, concerning the operation of the
military justice system. (43)
The Bill both broadens and narrows these functions. Under the
Bill, the Inspector-General may:
- initiate an inquiry
- be directed by the CDF to conduct an inquiry; and
- may or may not choose to comply with a request for an inquiry
by a service chief or any other individual (See Schedule
2, Item 2, new section
Thus, the Inspector-General may refuse to conduct an inquiry
referred to it be a Service Chief, and alternatively, may pursue an
inquiry undertaken at the request of a member of the public.
Under the recommendations made by Justice Burchett, the
Inspector-General was to be given the power to refer matters to the
civil police. The Bill is less clear. Specifically, the
Inspector-General s functions include the vague statement of
referring matters to other appropriate authorities to be dealt with
The Inspector-General is to report to the CDF only as directed
by the CDF. This is consistent with the recommendation of the
Burchett Report. The
Explanatory Memorandum states:
A formal Annual Report is not required, as this
provision formalises what currently occurs in practice. In any
case, the Inspector General ADF contributes to the Defence Annual
However, this casual justification does not sit well with the
Inspector-General s purpose. According to the Explanatory
Memorandum, this is to provide for review independent of the
ordinary chain of command and an avenue by which failures in the
military justice system can be exposed and examined in order to
assist in remedying any injustice.(46) Such exposure
would seem to imply a degree of public accountability and scrutiny.
The lack of this has the potential to undermine the Government s
commitment to an open, transparent and fair military justice
The Senate Report draws comparison to the Canadian Forces
Grievances Board, an independent, administrative tribunal with
quasi-judicial powers, which reviews military grievances and
submits recommendations to the Chief of Defence Staff. Importantly,
the Chief of Defence Staff must give written reasons for not
accepting the Board s recommendations, and the Board must publish
an Annual Report. (48)The Senate Report advocated a
similar body be established in Australia, namely the ADF
Administrative Review Board, with similar reporting
requirements.(49) This ADF Administrative Review Board
would subsume the Inspector-General and the Defence Force
Ombudsman,(50) which, if necessary, could refer matters
to a military division of the Administrative Appeals Tribunal for
formal inquiry with that tribunal consisting of at least one
suitably qualified military officer nominated by the CDF.
Government Response rejected this recommendation outright
because, amongst other reasons, it would not support the
relationship between command and discipline . (52)The
Government plans to streamline the complaints and grievances
process through adopting other measures.
The Registrar is currently responsible for case
management.(53) Under the Bill, the Registrar will
undertake some of the administrative duties now undertaken by the
convening authorities. This should avoid the potential for conflict
that currently exists in the system where convening authorities
undertake both prosecution and administrative duties. It should
also help streamline the trial process by having a full-time
central coordinating position to oversee case management and avoid
some of the problems, identified in the Senate Report, inherent in
an ad hoc trial system.(54)
However, the Senate Report noted that, as the Registrar will not
be empowered to deal with interlocutory matters and make interim
orders,(55) it will not be possible in some
circumstances to expedite a hearing. It is also recommended that
the establishment of an impartial and permanent military court
would ensure a more comprehensive and structured approach to trial
management.(56) The Government has accepted this
recommendation though not on the terms set out in the
Under the Bill, superior authorities, appointed by the CDF or a
service chief, will represent the interests of the ADF in relation
to charges being considered by the Director (see Item
8 of the Main Provisions).
Explanatory Memorandum sets out their purpose as
In the exercise of the prosecution discretion
currently vested in convening authorities, convening authorities
have regard to the impact on discipline of alleged offences. Where
there is a significant disciplinary impact, it may be appropriate
to refer such offences to a court martial or Defence Force
magistrate. As matters are currently referred by summary
authorities to senior officers who exercise the functions of
convening authorities, senior officers have proper oversight of
discipline within their respective commands. To maintain this
oversight within the new regime proposed under the Bill, the
concept of superior authority is being incorporated. These will be
appointed by a Service Chief and will represent the Service
interest in pursuing a matter at the court martial or Defence Force
The Second Reading Speech notes that the superior authorities
would ensure that the DMP [Director] is aware of the service
aspects of offences and the functions of a Superior Authority will
be performed by senior officers, and most likely by the
appointments currently performing functions as convening
This raises some questions as to the exact nature of the
interaction between these authorities and the DMP in the course of
an investigation. The Explanatory Memorandum maintains
that their purpose is to maintain input into the disciplinary
process without interfering with the independence of the Director
of Military Prosecutions .(60) However, this is not
clearly set out in the provisions of the Bill with the result that
there may be potential for superior authorities to impede the
ability of the Director to act independently. This is especially
relevant when one considers that there is no provision setting out
the rank, or minimum rank, for superior authorities. As noted in
the Second Reading Speech, likely appointments will be those
currently acting as convening authorities, and these are thirty or
so one and two star General equivalent officers .(61) It
is therefore likely that some superior authorities will be of two
star rank or more senior whereas the Director will be (at minimum)
a one star officer. If a supervising authority were more senior
than the Director, it is difficult to imagine a military culture
where a junior officer will choose to ignore the wishes of a
superior in rank no matter how well intentioned the legal
In addition, superior authorities, like the convening
authorities now, will be responsible for organizing the legal
representation of an accused person (see Item 88
of the Main Provisions). As their primary obligation is to
represent the interests of the ADF, it may be questioned whether
there is a very real conflict of interest in undertaking this
It should be noted that this amendment runs contrary to the
course proposed by the Senate Report:
The final matter raised in submissions is the
position of those military officers who act as counsel representing
the accused in a military trial. Following the Federal Court
decision of Stuart v Sanderson, members are
entitled to the counsel of their choice (at Commonwealth expense if
the counsel is a military officer) if that officer is reasonably
available. It has been submitted that those officers should form
part of an organization similar to the US military Trial Defense
Service headed by a senior officer with independent status similar
to the DMP [Director], so that they may be free of and be seen to
be free of command influence. (62)
The Senate Report advocated the establishment of an independent
position of Director of Defence Counsel Service.
In the Government s Response to the Senate Report, it accepted
that this position should be established but only as a military
staff position within the Defence Legal Division.
There has been press comment on the Senate Report which reveals
bipartisan concern at the state of the military justice system.
Comments criticising the Government s response have also been made
by the father of an Air Force cadet who committed
Ex-army personnel have been reported as critical of the
Government s limited response to the perceived flaws in the system.
Labor s Defence Spokesperson, The Hon. Robert McClelland, has
expressed his support for the findings and recommendations of the
Senate Inquiry, and has described the Government Response as
shortsighted and disappointing in opting to keep the prosecution of
offences in the hands of the military. (67)
Schedule 1 amends the Defence Force
Discipline Act 1982 (DFD Act).
Items 1 and 3 effectively omit
the term convening authority and its definition from subsection
3(1). A convening authority is currently a senior commander
appointed by a Service Chief.
Under the Bill, the functions of a convening authority will
largely be divided between the newly created positions of the
Director (new section 188GF) and the Registrar
(new section 188FB). Items 5 and
6 insert these definitions respectively, into
subsection 3(1). Superior authorities will also take on some of the
duties of a convening authority.
Item 8 inserts a new section
5A into the DFD Act covering the appointment of a superior
authority. The CDF or a service chief may appoint an officer to be
a superior authority for the purpose of:
- representing the interests of the Defence Force in relation to
charges that are being considered by the Director of Military
- exercising the powers and performing the functions conferred on
superior authorities under the DFD Act and regulations.
As noted already, the role of a superior authority in
considerations by the Director is potentially too vague and could
possibly lead to situations where the interaction between the two
bodies could give rise to allegations of interference in the
Section 87 of the DFD Act deals with summons and charges related
to service offences by defence members or others. Under current
subsections 87(1)(a) and (b), an authorized member of the Defence
Force , that is, a member of the Defence Force with written
authorization by a commanding officer, has authority to charge and
summons a defence member. This will then be dealt with under either
section 110 (by a commanding officer) or section 111 (by a
subordinate summary authority) if the person charged is a defence
member, and only under section 110, if not a defence member.
Item 11 substitutes a new section
87(6). This clarifies that the Director is an authorized
member of the Defence Force for the purposes of section 87.
Item 9 inserts a new subsection
87(1)(c) which provides the Director with additional
powers under section 87 to those in subsections (a) and (b).
New subsection (c) provides that the Director may
choose to refer such matters to a superior summary authority or a
commanding officer for trial under sections 106 and 107 of the DFD
Act respectively. Alternatively, the Director may request the
Registrar to refer the charge to a Defence Force magistrate for
trial or to convene a court martial to try the charge.
Item 10 inserts a new section
87(1A) that clarifies that the Director s powers under
new subsection (c) are in addition to the powers
of the Director under subsections (a) and (b).
It should be noted that other authorized members of the Defence
Force retain the powers currently available under section 87. The
fact that the Director also has such powers will not affect this
Items 12 and 13 provide that the Registrar,
only if directed by a judge advocate or a Defence Force magistrate,
may use the powers of arrest and summons under section 88 to ensure
the attendance of an accused person before a service tribunal.
Items 14 to 17 deal with any delay in dealing
with charges after the arrest of an accused person (section 95 of
the DFD Act). The purpose of the amendments is to include the
Director and a superior authority in the notification process when
an accused is arrested so as to ensure that someone in the command
hierarchy is aware that a person is being held in custody.
- If no proceedings are commenced within 48 hours, the Director
and a superior authority must be notified of the reasons for this
- If the accused remains in custody for 8 days or more without
the charge being dealt with, the Director and a superior authority
must be provided with reasons for the delay after the first 8 days
and each subsequent 8 day period (subsubsection 95(5)), and
- If the accused remains in custody for 30 days, and the 8 day
notification(s) and reasons have not been provided under subsection
(5), but reasons have been provided under subsection (7) which
allows for a commanding offer to report when reasonably practicable
rather than on each 8th day, a superior authority who
receives such a report must notify the Director, the CDF, a service
chief or an authorized officer of the reasons why the charge has
not been dealt with (subsubsection 95(8)).
It is unclear why the presumption in subsection
95(8) is that a report will have been given to a superior authority
under subsection (7) but not to the Director.
Subsection 95(9) remains in its current form. The
Director has no power to release the accused from custody. After
receipt of a report dealing with an accused who has been in custody
for 30 days, only the CDF, a Service chief or an authorized officer
shall, unless satisfied that it is proper that the person should
continue in custody, order the release of the person from
Item 20 repeals section 102
which currently provides for the appointment of convening
authorities for the purpose of convening court martials and
performing other functions. Under item 21, 25 and
26 the Director is granted similar powers as the convening
authorities under section 103, namely:
- direct that a charge not be proceeded with
- refer, for trial, prescribed charges to a superior summary
authority or the commanding officer
- request the Registrar to refer the charge to a Defence Force
magistrate for trial, or
- request the Registrar convene a general or restricted court
martial to try the charge.
The powers of the Director proposed by these
amendments to section 103 differ from the current powers of the
convening authorities in that the convening authorities could
themselves refer the charge to a Defence Force Magistrate or to
convene a general or restricted court martial to try the charge.
Under these amendments the Director will need to request that the
Registrar take these steps.
The Explanatory Memorandum explains the
general purpose of distinguishing between the roles of the Director
and the Registrar as follows:
The allocation of responsibilities between the
Director of Military Prosecutions and the Registrar of Military
Justice reflects the functions of the two appointments and
recognises the independence of the prosecutorial function from the
administration of courts and trials.(69)
Items 28 and 29
similarly amend section 103(2) by replacing the term, a convening
authority , with the Director. This section deals with a situation
where a reviewing authority, the Defence Force Discipline Appeal
Tribunal or the Federal Court of Australia, orders a new trial of a
person. In such situations, the Director, as under section
103(1)(a), has the power to:
- refer the charge to a superior summary authority or the
commanding officer for trial, or
- to request the Registrar either to refer the charge to a
Defence Force Magistrate for trial (see item 30),
or to convene a general or restricted court martial.
Items 31 and 32
replace the convening authority in subsection 103(3) with the
Director . Currently section 103(3) provides that the convening
authority is not required to proceed with a new trial unless
satisfied that there is sufficient cogent evidence to do so.
Therefore, it still remains within the power of a person appointed
by the military to determine whether to proceed with a new trial,
or not, regardless of any order from a reviewing authority, the
Defence Force Discipline Appeal Tribunal or even the Federal
Items 33 to 47
deal with section 103 provisions concerning an accused person s
election to be tried or punished by a DFM or a court martial. The
responsibilities of a convening authority in those provisions will,
under the amendments, become the responsibilities of the
Item 48 repeals subsections
103(8) to 103(11). These subsections deal with situations where a
convening authority believes that it may not be able to make an
unbiased decision and might choose to refer its responsibilities in
relation to a charge, order for a new trial, or conviction under
section 103 to another convening authority.
As there could be a number of convening
authorities, it was possible to take this approach. With one
Director, the responsibility must remain with that one office.
Commentary on this amendment is included under the heading
Outcomes/Pros and Cons section.
Those charges to which section 103 relate will
also include, under item 22 of the Bill,
new section 105A inserted by item
49. This new section provides for direct referral of a
charge by the person s commanding officer, or a superior officer in
relation to the person s commanding officer, to the Director if the
charge has not yet been dealt with by a superior summary authority
under section 109, a commanding officer under section 110 or a
subordinate summary authority under section 111. The
Explanatory Memorandum notes that:
The intent of this item is to allow for direct
referrals to the Director of Military Prosecutions where there
would be little or no benefit from a summary hearing. For example,
either highly complex charges, or simple charges against senior
officers that cannot be tried by a summary
Once referred, the Director may choose to proceed under those
options set out in section 103, including not proceeding with the
charge (s 103(1)(a)), or referring the charge to the superior
summary authority or the commanding officer for trial (s
103(1)(b)). There is no provision requiring that the Director give
reasons for whatever course is ultimately taken.
Sections 114 126 of the DFD Act deal with court martials.
Items 51 to 70 deal with
amendments to the court martial provisions in the DFD Act by
transferring the functions of the convening authority to the
Registrar. They are in keeping with the Bill s intention to give
responsibility for trial, post-trial administration and case
management to the Registrar.(71)
Item 51 provides that the Registrar
(substituted for the convening authority) will appoint the
President and other members, reserve members and the judge advocate
of a court martial.
The Registrar will be responsible for notifying the accused
person of an order convening a court martial (Items
54 and 55).
Sections 121, 122 and 123 of the DFD Act deal with objections
to, and substitution of members of a court martial by the convening
authority. Item 56 amends sections 121, 122 and
123 of the DFD Act by replacing convening authority with the
Registrar, so that:
- an accused person may notify the Registrar of any objection to
the appointment of particular members or the judge advocate,
- a member who believes that she or he may be biased in a matter,
must also notify the Registrar; and
- Registrar is able to substitute members under section 123
before a court martial is sworn or affirmed.
Apart from replacing the convening authority with
the Registrar, there is no further change proposed to section 122
(notification by a member of believed bias), under which there is
no obligation upon that member to disqualify himself or herself or
that the Registrar inform the accused person of any such
However, under the amendments to subsection 129B(1)(see
Item 79), the Registrar (previously the Judge
Advocate General) must not appoint a person as a member, President
or judge advocate of a court martial, if she or he believes the
person to be biased or likely to be biased.
Sections 127 129A of the DFD Act deal with Defence Force
magistrates. Items 73, 74 and 76 replace convening
authority with the Registrar in relation to these provisions.
Item 71 substitutes a new subsection
129A(1). Whereas the current subsection provides that a
convening authority may discontinue proceedings before a Defence
Force magistrate either before or after commencement of
the case, the new subsection provides that the Registrar can only
make such a decision before commencement of the case. Under
new subsection (1), after commencement, only the
Defence Force magistrate can direct the Registrar to terminate the
reference if it would be in the interests of justice to do so.
The purpose of this amendment is unclear. The Explanatory
Memorandum is somewhat confusing on the point and in its
reference to subsection 129A(2). Subsection (2) gives authority to
a convening authority to discontinue proceedings after commencement
if the Defence Force magistrate is unable to conclude the trial of
the charge or the hearing of the case because of death, illness,
the exigencies of service or other circumstances.
The amendment to subsection (2) (see item 73)
merely replaces the convening authority with the Registrar and does
not alter the substance of the subsection. And yet the
Explanatory Memorandum maintains that it will be amended
to allow an exception to the rule that once a Defence Force
magistrate has commenced to sit, the reference can be terminated
only at the direction of the Defence Force magistrate. It gives the
example of exceptional circumstances where a Defence Force
magistrate was unwilling to make a direction to discontinue but
where the interests of justice plainly required such a
decision.(72) Arguably, other circumstances might be
given a very broad reading. However, it is equally arguable that
the authority of the Registrar (replacing the convening authority)
to discontinue proceedings before a Defence Force magistrate is
diminished as under new section 129A(1)(b)(ii) there is no longer
any express provision that empowers the Registrar to terminate
proceedings in the interests of justice.
It may be that the purpose is to distinguish the administrative
role of the Registrar from the Defence Force Magistrate s role. The
Defence Force Magistrate should decide what issues are in the
interests of justice whereas the Registrar makes administrative
arrangements if the Defence Force Magistrate cannot continue, for
example, due to illness. However the Explanatory
Memorandum does not take this approach to the interpretation
of the subsections.
It perhaps should be borne in mind that there has been a marked
trend towards matters being heard by a single Defence Force
magistrates rather than court martial. The 2002 figures were 46
Defence Force magistrates and only 3 courts martial.
Under new section 129B(1) the Judge Advocate
General (JAG) retains the responsibility for nominating a person as
the President, members or reserve members and judge advocate of a
court martial. The Registrar, like the convening authority in the
current Act, can not make appointments to a court martial unless
the people have been nominated to the positions by the Judge
Advocate General (Items 78 and 80). However, the
Judge Advocate General does not retain the right, as under the
current subsection 129B(1), to reject a potential nominee on the
basis of bias, or likely bias. This becomes the role of the
Registrar (Item 79).
The Judge Advocate General remains responsible for nominating a
Defence Force magistrate, and the Registrar may not refer a charge
to a magistrate unless such a nomination has been made (see section
129C and Item 81).
Subsection 130(5) currently provides that a summary authority
when trying a charge may, at any stage of the trial, refer the
charge to a convening authority. Item 82 replaces
convening authority with the Director.
Sections 131 and 131A cover situations where an accused person
may have opportunity to elect the nature of the trial and
punishment. In certain circumstances, the summary authority may
then decide to refer the charge or conviction to the convening
authority. Under items 83 and 85,
that referral is made to the Director. Under item
84, any notice by the accused to withdraw his or her
election will be made to the Registrar, thus maintaining the
distinction between the prosecution and administrative functions of
these respective positions.
Items 86 and 87 respectively
provide that a court martial and a Defence Force magistrate may, if
the Director (replacing the convening authority) does not object,
accept a guilty plea.
Item 88 relates to representation of an accused
person under subsection 137(1). Under the current provision, a
convening authority is responsible for affording an accused person
the opportunity to be represented at trial by a court martial or
Defence Force magistrate. The amendment in item 88 gives this
responsibility to a superior authority. The Explanatory
Memorandum notes that:
The role of superior authorities is to represent
the service interests in the proper administration of discipline,
one aspect of which is ensuring appropriate representation for an
accused. The appropriate superior authority to ensure
representation for a defendant will usually be a superior authority
in the defendant s chain of command.(74)
However, as a superior authority is an authority appointed to
represent the interests of the Defence Force, it is possible that
there may be situations where this gives rise to a conflict of
interest. Further commentary on this amendment is made in the
Outcomes/Pros and cons section.
Under section 141, an accused may make a number of applications
such as for an adjournment, or objections regarding the bias of
members. If a Defence Force magistrate or a judge advocate grants
an application or objection, they may then refer the charge to a
convening authority which term is now replaced by the Director (see
Item 92 amends section 145. This section
provides that a summary authority, if it considers an accused
person unable to understand the proceedings by reason of mental
impairment, may now refer the charge to the Director.
The amendments to section 145A, which deals with notices in
relation to an alibi, as administrative requirements, are to be
dealt with by the Registrar (Items 93, 94 and
Item 97 amends section 149 making the Judge
Advocate General responsible for the rules of procedure governing
the duties of the Registrar.
Item 98 amends section 150A so as to ensure
that an officer can only be authorised to act either as a superior
authority or as a reviewing authority in any given case.
Item 100 amends section 180(3) to provide that
not only may the Deputy Judge Advocate General be a defence member,
as provided for now under the Act, but also the Judge Advocate
General. The Explanatory Memorandum states that this
amendment clarifies the situation.(75)
The Senate Report notes that the Judge Advocate General is a
Reserve officer and a civilian judge . (76)The Senate
Report is strongly supportive of the Judge Advocate General and the
Judge Advocates and Defence Force magistrates having considerable
experience in civilian courts and noted the Abadee Report s support
for this also. The Senate Report went on to note that such
experience is not and will not be present for some time, in the
pool of permanent military legal officers available for judicial
Items 101 to 105 deal with
amendments to the remuneration and length of service provisions.
The Chief Judge Advocate may be appointed for 5 years (Item
102), increased from the current three years, but under
the amendments, may not hold office for more than a total of ten
years (Item 103).
The threshold eligibility requirement for the Chief Judge
Advocate has also been raised. Currently an officer must hold a
rank of captain, colonel or group captain, or above these.
Item 104 provides that an officer holding a rank
not lower than commodore, brigadier or air commodore, will be
A new Division 3 is inserted covering the
functions, appointment, qualifications, tenure, resignation,
remuneration and other conditions of the position of the Registrar.
Primarily, the Registrar is to provide administrative and
management services in connection with charges and trials under the
Act (new section 188FA(1)). Appointment is made by
the Minister (new section 188FB) and must not
exceed 5 years (new section 188FD(1)) though
reappointment is possible (new section
The appointee must be a legal practitioner of at least 5 years
standing and must be a member of the defence forces rendering
full-time continuous service with a rank not lower than captain,
colonel or group captain (new section 188FC). If
the Registrar ceases to be enrolled as a legal practitioner or a
member of the defence forces or a member of the Reserves who is
rendering continuous full-time service, then the Registrar ceases
to hold office (new section 188FJ). The Registrar
is obliged to disclose any conflict of interest (new
Item 107 inserts a new Part
XIA which details the functions, role and
conditions of service of the new position of Director. Those
- to carry on prosecutions for service offences in proceedings
before a Defence Force magistrate or a court martial
- to represent the service chiefs in proceedings before the
Defence Force Discipline Appeal Tribunal, and
- to make statements or give information to particular persons or
to the public relating to the exercise of the Director s powers
(new section 188GA).
This latter function, notes the Explanatory Memorandum,
could, for example, relate to a decision taken whether or not to
prosecute an offence and the reasons for that decision.
(78) However, it is not a specific mandatory provision
that the Director give reasons for such decisions.
The Director is empowered to give undertakings relating to
statements given or disclosures made in the course of giving
evidence, that such information will not be used in evidence
against the person in any other proceedings unless the evidence is
false, and may further give an undertaking that the person will not
be prosecuted for a service offence (new section
The Director is appointed by the Minister (new section
188GF(1)) and like the Registrar must be a legal
practitioner of five years standing and a member of the defence
forces holding a rank not lower than commodore, brigadier or air
commodore (new section 188GG). The appointment
must not exceed five years and the appointee is eligible for
reappointment to a maximum period of 10 years in total (new
section 188GH). The conflict of interest disclosure
provisions mirror those for the Registrar s position (new
As with the appointment of the Registrar, it may be observed
that the necessary qualifications of rank ensure that the person
appointed is a long standing defence force member and this may
raise the question as to the independent nature of the office.
Item 108 inserts a new section
193(1A) extending the same protection and immunity as a
Justice of the High Court to the position of Judge Advocate
New subsection 193(4) extends more limited
immunity for actions of Director and the Registrar, and persons
assisting those offices (Item 109).
The Director is required to submit an annual report to the
Minister (new section 196B; item 112).
The transitional arrangements in Item 114
provide that where a convening authority has been exercising powers
that, due to the amendments, should be exercised by the Director,
the Registrar or a superior authority, a judge advocate, Defence
Force magistrate or superior authority, these powers must now be
exercised by persons in those positions.
Schedule 2 amends the Defence Act
1903 by inserting a new Part VIIIB which
establishes the office and functions of the Inspector-General.
New section 110A sets out the object of the new
Part which is to provide the CDF with:
(a) a mechanism for internal audit and review of
the military justice system independent of the ordinary chain of
(b) an avenue by which failures and flaws in the
military justice system can be exposed and examined so that the
cause of any injustice (whether systemic or otherwise) may be
To achieve this objective, the Inspector-General is given power
to investigate matters concerning the military justice system which
includes carrying out preliminary assessments to assess whether an
inquiry should be undertaken and referring matters to other
appropriate authorities, conduct performance reviews, advise on
matters and make recommendations and promote military justice
values across the ADF (new section 110C).
An inquiry or investigation may be initiated by the
Inspector-General, the CDF, or a service chief although if the
latter, the Inspector-General does not have to comply with the
request. Similarly, the Inspector-General may act on a request by
any other individual but again, need not comply or even conduct any
preliminary assessment. (See new section
The Inspector-General is to be appointed by the Minister who
must have regard to any recommendation made by the CDF (new
subsections 110E(1) and (2)).
Importantly, a person must not be appointed to the position unless
they have knowledge of and experience in relation to military
justice issues and an understanding of their relevance to the role
of the Defence Force (new subsection 110F).
The appointment will be for 5 years and reappointment is
possible (new section 110G). Appointees will be
required to give notice to the Minister of all interests that could
conflict with the duties of the office (new section
The Inspector-General s office is to be staffed by defence force
members made available by the appropriate service chief and public
service officers made available by the Department (new
section 110O). Although consultants may also be engaged,
this reliance on defence force and department personnel at the
discretion of service chiefs and the Department may potentially
limit the Inspector-General s capacity to fulfil the duties of the
office. There is provision for the Inspector-General to appoint
persons to investigative positions. Such a person must meet the
eligibility criteria yet to be set out under the regulations
(new section 110P).
The Inspector-General is given limited immunity from civil
proceedings for any loss, damage or injury suffered by a third
party as a result of performing the duties of the office
(new section 110Q).
The only reporting provision is that the Inspector-General must
prepare reports for the CDF on the operations of the
Inspector-General as directed to by the CDF (new section
110R). There is no provision for reporting to the
The Bill does address some of the shortcomings in military
justice identified in the several inquiries over the past decade.
By separating the prosecution and administrative functions, between
the Director and Registrar, it does achieve a conceptual change, as
described in the Explanatory Memorandum. And it does
create three statutory appointments appointed by the Minister, a
potentially significant development in changing the dynamics of
control of the military justice system.
Nonetheless, in line with the Government s Response, this first
instalment of legislative change does not attempt fundamental
structural change; it does not seek to clearly distinguish between
the military justice system and the military. In this respect, the
Bill arguably continues the long tradition of implementing broadly
reactive and piecemeal (79) reforms, an approached
strongly criticized in the Senate Inquiry.
Ultimately, the proposed legislative framework is a small
improvement on the current military justice system and anticipated
future amendments may well improve upon these.
- Senator The Hon Robert Hill, Minister for Defence, indicated
this was the case during Defence Estimates on the afternoon of 2
- Senate Foreign Affairs, Defence and Trade References Committee,
The effectiveness of Australia s military justice system, June
Report), June 2005, available at
- Mr James Burchett QC, Report of an Inquiry into Military
Justice in the Australian Defence Force Discipline Act 1997
Report) available at http://www.defence.gov.au/media/DeptTpl.cfm?CurrentID=893
- Government Response to the Senate Foreign Affairs, Defence and
Trade References Committee Report on the Effectiveness of
Australia s military justice system, October 2005
Government Response) available at
- Joint Standing Committee on Foreign Affairs, Defence and Trade
titled Military Justice Procedures in the Australian Defence
Standing Committee Report) available at
- A study into the judicial system
under the Defence Force Discipline Act, Brigadier The
Honourable A.R. Abadee, RFD, Deputy Judge Advocate General, p. 5,
copy undated, delivered to CDF General Baker in 1997 (the Abadee
- ibid., p. 6.
- Joint Standing Committee Report, op cit., Recommendation
- Abadee Report, op. cit., p. 8.
Report, op. cit., para 53.
- Admiral Barrie releases the Burchett Report into Military
Justice today for the public domain "too tough"? ,
Report, op cit., Recommendation 47.
- Joint Standing Committee on Foreign Affairs, Defence and Trade,
Rough Justice - An Investigation into Allegations of Brutality
in the Army's Parachute Battalion, Report No. 99 (Rough
Justice Report) available at: http://www.aph.gov.au/house/committee/jfadt/DOD_Rept/MJindex.htm
- Admiral Barrie releases the Burchett Report , Defence
Report, op. cit., preface p.xxi.
- Some more serious criminal offences are currently referred to
civilian authorities for investigation and prosecution: see Senator
Hill, Government to strengthen military justice system, Media
Release, 5 October 2005, available at: http://www.minister.defence.gov.au/Hilltpl.cfm?CurrentId=5149.
- Senate Report, op. cit., p.xxx, para 29, p.xxxv, para 49,
p..54, para 3.116.
- ibid., p.xxvii.
- ibid., p. xxi.
- ibid., preface p.xxii.
- ibid., preface p.xxx
- ibid., p.xxxiii.
- Defence Ombudsman, The ADF: own motion investigation into
how the ADF responds to allegations of serious incidents and
offences), January 1998
- Senator The Hon Robert Hill, Defence Estimates,
Parliament of Australia, 2 Nov 2005.
- Government Response, op. cit., p.
- Joint Standing Committee Report,
op cit, Recommendation 4.
- ibid., Defence response to Recommendation 4.
- The Hon. Dana Vale MP, Minister assisting the Minister for
Defence, First Australian Director of Military Prosecutions, Media
Release, 30 June 2003, http://www.minister.defence.gov.au/Valetpl.cfm?CurrentId=2915
- Senate Report, op. cit., p. Liii, Recommendation 10, para
- ibid., p. 67, para 4.38.
- ibid., preface p.xxxi,
- ibid., p. Lii, Recommendation 8, para 4.45.
- Government s Response, op. cit., p. 14.
- See section 103(3) of the DFD Act; Items 31 and 31 of the
- ibid., p.xxxviii, para 60.
- Burchett Report, op cit., Recommendation 55.
- Senate Report, p. xLiv, para 82.
- ibid., p. xLv, para 92.
- Para 113.
- Burchett Report, op cit., Recommendation 55.
- Defence Legislation Amendment
Bill (No.2) 2005, Part VIIIB (Section
- Explanatory Memorandum, para
- ibid., para 106.
- Senator Kay Patterson, Second
Reading Speech,12 October 2005.
- Senate Report, op cit., p.XLv, para 89.
- ibid., p. xLviii-xLiv, para 106. See also Recommendations 29
34, pp. Lv-Lviii, and Chapter 11.
- ibid., p.xLvi, para 95.
- ibid., p.xLviii, paras 102, 104.
- Governments Response, op cit, pp.18, 20 21.
- Senate Report, p. 14, para 2.33.
- ibid., p. xxxiii, paras 37, 38.
- ibid., para 39.
- ibid., p. xLiii, para 5.94, Recommendation 18.
- Governments Response, op. cit., pp. 5, 15 16
- Explanatory Memorandum, para
- Senator Kay Patterson, Second
Reading Speech,12 October 2005
- Para 16.
- Senate Report., op cit., preface p.xxxi,
- ibid., xxxvi-xxxvii, para 54.
- ibid., p. Liii, para 4.76, Recommendation 17.
- Governments Response, op. cit., p. 4.
- Senate reports find problems, The 7.30
Report, 6 October 2005; Government
promises to strengthen military justice system, PM, 5 October
- Military justice reforms window dressing
, The Age, 6 October 2005.
- Government promises to strengthen military
justice system, PM, 5 October 2005.
- Explanatory Memorandum, para
- ibid., para 32.
- ibid., para 33.
- ibid., paras 4, 6.
- ibid., para 39.
- Senate Inquiry Report, op cit., p. xxxv, para 48.
- Explanatory Memorandum., para
- ibid., para 47.
- Senate Inquiry Report, op. cit, p. xxxiv, para 42.
- ibid., p. xxxv, para 45.
- Explanatory Memorandum., para
- Senate Inquiry Report, op. cit. p. xLiv, para 87.
Chief Petty Officer
Warrant Officer Class
Warrant Officer Class
Air Commodore *
Rear Admiral **
Major General **
Air Vice Marshal **
Vice Admiral ***
Air Marshal ***
Air Chief Marshal
Admiral of the
Marshal of the RAAF
Australian War Memorial, Military Organisation and Structure:
Comparative Table of Ranks , http://www.awm.gov.au/atwar/structure/rank_comparative.htm,
accessed on 8 November 2005; ranks no longer used have been
* Indicates star ranking eg. a Commodore in the Navy is a one
star General equivalent officer ; an Air Marshal in the Air Force
is a three star General equivalent officer.
Foreign Affairs, Defence and Trade Section
8 November 2005
Bills Digest Service
Information and Research Services
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production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
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IRS staff are available to discuss the paper's
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members of the public.
© Commonwealth of Australia 2005
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