Chapter 1 - Introduction and conduct of the inquiry
Referral of the
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 for inquiry and report by
12 May 2004.
On 1 April 2004,
the Committee sought and was granted an extension of time to report
on 5 August 2004. Given the nature, complexity and volume of information
received, the Senate, on 23 June 2004, granted an extension of time to present
an interim report by 9 September 2004. Following the prorogation of Parliament
on 31 August 2004, the Committee tabled a short interim report on 8 September 2004. In
that report, the Committee explained that it would present a final report as
soon as practicable.
On 6 December
2004, the Senate adopted the Committee's
recommendation that the Committee re-adopt the inquiry into the effectiveness of
Australia's military justice system with a reporting date of 17 March 2005. On
15 March, the Senate agreed to an extension to report to 10 May 2005 that was
further extended to 16 June.
A number of
inquiries into aspects of Australia's military justice system have been held
over recent years. They clearly identified shortcomings in the system and made
recommendations to improve it. Despite assurances from the ADF that measures
have been taken to correct these failings, reports have continued to surface
suggesting that problems persist. Against this background, the Senate adopted
the following matters be referred to the Committee for inquiry and report:
of the Australian military justice system in providing impartial, rigorous and
fair outcomes, and mechanisms to improve the transparency and public
accountability of military justice procedures; and
the handling by
the Australian Defence Force (ADF) of:
(i) inquiries into
the reasons for peacetime deaths in the ADF (whether occurring by suicide or
accident), including the quality of investigations, the process for their
instigation, and implementation of findings,
(ii) allegations that
ADF personnel, cadets, trainees, civilian employees or former personnel have
(iii) inquiries into
whether administrative action or disciplinary action should be taken against
any member of the ADF, and
(iv) allegations of
drug abuse by ADF members.
limiting the scope of its inquiry, the committee shall consider the process and
handling of the following investigations by the ADF into:
the death of
Private Jeremy Williams;
the reasons for
the fatal fire on the HMAS Westralia;
the suspension of
Cadet Sergeant Eleanore Tibble;
misconduct by members of the Special Air Service in East Timor; and
at sea of Acting Leading Seaman Gurr in 2002.
Committee shall also examine the impact of Government
initiatives to improve the military justice system, including the Inspector
General of the ADF and the proposed office of Director of Military
On 12 February
2004, the Committee sought a variation to its terms of reference in
relation to Cadet Sergeant Eleanore Tibble. The Committee's original terms of reference referred to the
handling by the ADF of the investigation into her death. When the Committee was informed that the investigation undertaken by the
ADF was into the administrative processes and procedures surrounding the suspension of Cadet Sergeant Tibble, it
sought successfully to have its terms of reference address the investigation
undertaken by the ADF.
Conduct of the
The Committee advertised the terms of reference and called for
submissions in The Australian on a
number of occasions leading up to the close of submissions on 12 February 2004,
as well as placing an advertisement in two issues of Navy News, Army News and Air Force News.
The Committee received 71 public submissions, 63 confidential
submissions, and many supplementary submissions. Public submissions are listed
at Appendix 1.
came from a wide variety of backgrounds and experience. They represent the
interests of people of all ranks ranging from a 15-year-old female cadet to a 50-year-old
male two-star general equivalent. They include serving and ex-serving
personnel, general service and specialist officers and other ranks from the
three services, legal officers and health professionals, police and convicted
persons, civilian Defence employees and Equity officers, mental health and
social workers, community and returned service groups and the next of kin of
deceased members. Both complainants and those complained about have lodged
It is beyond the
remit of the Committee to determine the veracity or otherwise of each and
every claim, or to pursue individual remedies for all of the complainants. Even
so, the Committee considered carefully all the evidence and from the
specific experiences of individuals was able to gain an appreciation and
understanding of how Australia's military justice system operates and to
identify its strengths and weaknesses.
notes from the outset that although many witnesses who gave evidence to this
inquiry were highly critical of aspects of the military justice system, they,
nonetheless, continued to hold the ADF and its members in the highest regard. Their
primary motive in raising their concerns was to ensure that shortcomings in
Australia's military justice system were identified and rectified.
The Committee held eleven public hearings and seven in–camera hearings. Public hearings were
held in Canberra, Brisbane, Hobart, Melbourne and Adelaide. A list of the Committee’s public hearings,
together with the names of witnesses who appeared, is at Appendix 2.
received a number of submissions and additional information in confidence and
took some evidence in camera. Much of this information was of a highly personal
nature and in some cases reflected adversely on named individuals. The
committee was of the view that the experiences of people or information related
to the committee in confidence should be appropriately represented in the
report. To do so, the committee used different approaches. In some cases, the
report contains quotes taken from this confidential material without
identifying the source, in others, where the author agreed for sections of his
or evidence to be made public, the report identifies the author. The committee
also received staff-in-confidence documents from the ADF. Where the committee
felt that material contained in such reports was relevant to the terms of
reference and should be disclosed in the public interest, it has reproduced this
material. It has taken care, however, to ensure that the disclosure of this
information does not infringe privacy rights nor cause unnecessary embarrassment
to any individual.
On the point of
confidential material, the committee also notes that Defence has not had the
opportunity to receive and respond to most of that material. This has been an inherent
tension in the inquiry and the committee notes the limitations this has placed
on Defence. However, the committee also notes that in several instances where
public and contentious material was forwarded to Defence for comment, none was
forthcoming. The committee believes that the evidence on the public record is a
more than adequate representation of the actual evidence received.
The Committee received a detailed briefing from the Director General of the Defence Legal Service, the Inspector-General
of the ADF and the Director Military Prosecutions on the aspects of the military justice
system on 12 February 2004. In addition, the Committee visited the School of
Infantry at Singleton and the Jeremy Williams Rehabilitation Facility at
Holsworthy on 8 June 2004. The committee acknowledges, and expresses its
appreciation for, the time and effort taken by the CDF, service chiefs and
other senior ADF members as well as the Tiger team for their assistance during
of expert legal assistance
In recognition of
the nature and complexity of this inquiry, the Committee called for expressions of interest from legal
experts. From this process, the Committee
selected Mr Michael Griffin to assist in the analysis of its evidence.
Mr Griffin is a
practicing solicitor with Spooner & Hall and holds Bachelor of Laws and
Master of Laws degrees from the University of New South Wales. Mr Griffin
was recently cleared for promotion to Brigadier and has 30 years military
service, including 22 years regular Army. Mr Griffin is a Judge Advocate and
Defence Force Magistrate and holds the appointment as Member of the Administrative
Appeals Tribunal. In addition, Mr Griffin is a member of the International
Association of Refugee Law Judges and was recently appointed to the
Administrative Law Committee of the Law Society of NSW. He is a former Member of
the Refugee Review Tribunal and the Migration Review Tribunal.
Scope of the inquiry
In order to
evaluate Australia's current military justice system, the Committee considered the findings of numerous previous inquiries
and studies conducted over the last ten years into aspects of the system. In
doing so, the Committee sought to identify any common problems prevalent
throughout this period. It also wanted to assess the effectiveness of any
changes made to the military justice system as a result of measures taken
following the recommendations coming out of these inquiries.
during the course of the inquiry, the Committee became increasingly aware of important matters that
bore a direct relation to the application of the military justice system. Such
issues, which can be referred to broadly as 'corporate management issues',
include the status and administration of cadets, the management of drugs and
alcohol, the identification and treatment of post-traumatic stress disorder and
other mental health issues, and overall organisational accountability.
To gain a broader
understanding of how military justice systems operate in different
jurisdictions, the Committee also examined recent developments in the application
of military justice in the United Kingdom and Canada.
Structure of the report
There are two
streams to the military justice system, disciplinary processes and
administrative processes. This report attempts to identify the principal issues
raised in evidence in respect of each of these streams.
before the Committee ranged across many aspects of the military justice
system and clear themes emerged as witnesses detailed their experiences and
gave their views. The major concerns raised by participants in the inquiry determined
the overall shape of the report which clearly focuses on determining the
effectiveness of the Australian military justice system in providing impartial,
rigorous and fair outcomes.
In taking this
approach, the report, while examining all the terms of reference, does not
follow the order of matters as set down in the terms of reference. The
particular matters and cases referred to the Committee for inquiry are used to highlight broader concerns
and are incorporated in the report where they best illustrate issues under
The report is
divided into four parts and covers the following main topics.
- Introduction and
Conduct of the Inquiry
Background to the
military justice system.
2—The disciplinary system
investigations conducted by the Service Police.
- Decisions to
initiate and conduct prosecutions, and the legal services available for the
conduct of prosecutions and the defence of Service members.
- The structure of
3—The administrative system
The avenues for
reporting wrongdoing and making a complaint including the reporting of
unacceptable behaviour relying on the Jeremy Williams case to highlight
investigating officer inquiries and the experiences of many members of the ADF
and their families and friends who have been involved in an administrative
- The review and
appeal channels available in the administrative system comprising both the
internal and external mechanisms of review and appeal including the Notice to
Show Cause, the Redress of Grievance process, the Inspector-General of the
Australian Defence Force and the Defence Force Ombudsman.
Boards of inquiry
giving particular attention to the inquiries established to investigate the
fire onboard HMAS Westralia and the
disappearance of Acting Leading Seaman Cameron Gurr.
- Offences and
penalties under the military justice system.
4—Other important matters that relate to Australia's military justice system
- The Australian
Defence Force Cadets; and
The Committee wishes to express its appreciation to everyone who
contributed to the inquiry by making submissions, providing additional
information or appearing before it to give evidence. It especially acknowledges
and thanks those participating in the inquiry who found giving evidence
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