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Summary of committee's findings
The committee has reviewed Defence's
first six-monthly report on the implementation of the recommendations contained
in the government's response to the reference committee's report on Australia's
military justice system tabled in June 2005.
At this early stage of its implementation
program, the ADF has demonstrated a commitment to improving Australia's
military justice system. The committee notes the positive observations made by
the Defence Force Ombudsman particularly the reduction in the backlog of
complaints and the more efficient processing of complaints. Not only does this
mean that complaints are resolved in a timely fashion but this improvement
assists the Defence Force Ombudsman in his handling of complaints.
The committee notes, however, that many of the problems that
were identified in the military justice report were manifestations of a deeply
entrenched culture. Improvements in process will not of themselves change the
culture.
Tri-service police investigative capability audit
The committee views the tri-service police investigative
capability audit now underway as a critical exercise that will lay the
foundation for far reaching improvements in the service police. It awaits the
completion of the audit and Defence's response to it before making any further
comment. It takes this opportunity, however, to underline its concern about
poorly conducted investigations by the service police, especially the
preliminary investigations undertaken following a notifiable incident such as a
sudden death. It urges the audit to give careful consideration to this matter.
The committee notes media reports of the handling of the investigation of the
unfortunate death of Private Kovco
in Iraq and is
concerned that, despite the Department's assurances, there are ominous signs
that much remains to be done with respect to police capability. The committee
will monitor the progress of the inquiry carefully.
The Permanent Military Court
The references committee in its report on
the effectiveness of Australia's
military justice system made a number of specific recommendations with regard
to the proposed permanent military court such as the right to elect trial by
court martial before the Permanent Military Court for summary offences.[1] The committee looks forward to the
introduction of the legislation in the coming months.
The Fairness and Resolution Branch
The restructuring of the Redress of Grievance (ROG) process
under the direction of the Fairness and Resolution Branch is a positive step. Its
effectiveness in tackling some of the long-term problems with ROGs is yet to be
tested. Early indications, however, are promising. The Branch is now in a
stronger position to offer advice to Commanding Officers (COs) with regard to
ROGs and to monitor their progress. This would seem to indicate that the
perceived conflict of interest in the process is being addressed by Defence.
The committee is unsure, however, about the effectiveness of the proposed new
regulations to remove the opportunities for real or perceived conflicts of
interest that undermine the integrity of the ROG system. ADF's senior officers
and the Parliament need to be vigilant to ensure that the changes taking place
will have a lasting effect on improving the effectiveness and fairness of the
system. The committee will continue to monitor this matter and requests it
receive six-monthly updates on an ongoing basis.
The committee fully supports the work being undertaken by
the Branch to inform ADF members about the improvements to the military justice
system. The committee acknowledges the difficult task that the Branch has in
restoring trust in the system. It would encourage ADF members to take full
advantage of the services now offered by this Branch. The committee believes
that the credibility of this Branch is critical in that it cannot afford to be
compromised in its independence and thoroughness. The proof of its success will
depend on not just its timeliness, but on the quality of outcomes which might
not become evident for some time.
The Inspector General of the Australian Defence Force (IGADF)
The committee is heartened by the positive
approach taken by the IGADF in conducting audits of the military justice system
that are intended to reflect accurately the health of the system. It particularly
welcomes the commitment shown by the IGADF toward ensuring that unacceptable
behaviour in the ADF will be reported and especially his determination to stamp
out any form of reprisal directed at members reporting wrongdoing or making a
complaint. His focus groups are a practical hands-on measure encouraging ADF
members to report incidents of inappropriate behaviour.
The committee, however, draws attention to the prevailing
cultural environment of the ADF discussed at length in the military justice
report. It notes that even where there are formal and known avenues for a
person to disclose information or make a complaint about inappropriate conduct,
the workplace may effectively render them useless. The committee stresses that
a fundamental change in the ADF mindset must also occur to overcome the stigma
attached to reporting wrongdoing or making a complaint.
Registering a complaint should not be contrived as seeking
to subvert authority. Authority must command respect, not demand it.
The committee is pleased to receive the IGADF's report that
the IGADF is making some headway in establishing his credentials as an
even-handed and independent authority committed to ensuring that Australia's
military justice system is both fair and effective. His office has a heavy
responsibility to ensure that many of the reforms being implemented will in
fact result in an effective and fair military justice system. His success
depends in large measure on winning the trust and confidence of ADF members. It
is also totally dependent on his complete independence from the military chain
of command which was of such concern to the committee in its inquiry that it
recommended the abolition of the function in favour of another structure where
independence could be guaranteed.
The committee repeats its concerns that a major shift is
required in the attitudes of all ADF personnel to achieve lasting change in the
military justice system. It will take time and persistence. The IGADF must not
only be independent, but he also needs the support and commitment of the ADF
and the government to ensure that he has the necessary support to carry out his
functions.
The committee welcomes the additional resources allocated to
the Office of the IGADF. It takes this opportunity to highlight the need to
ensure that the IGADF remains well-resourced and that his capacity is further
enhanced.
The committee underlines its concern about the reporting
mechanism applying to the IGADF. It suggests that the government consider
strengthening the independence of the IGADF by requiring him or her, as a
statutory body, to furnish an annual report to the Minister for Defence for
tabling in parliament.
The committee sees great potential for both the Defence
Force Ombudsman and the IGADF to work together to improve Australia's
military justice system.
Duty of care responsibilities in relation to people who enlist under the
age of 18 years
The committee notes the implementation of the recommendations
contained in the military justice report with regard to cadets in the Service.
Broader concerns
The committee continues to receive correspondence from a
number of former ADF members or relatives of former ADF members drawing
attention to what they believe are problems with Australia's
military justice system. They touch on matters such as failure to observe
procedural fairness, conflicts of interests, failure to act on reports of
wrongdoing and harassment that may have contributed to a suicide. The matters
raised serve as a salutary reminder of the many shortcomings identified in the
report on Australia's
military justice system and underline the need to ensure that the reforms
already in place and those still to be implemented will be effective. They
highlight the need not only for changes to procedures and processes but for
fundamental changes in attitudes.
Conclusion
A dominant and recurring theme in the military justice
report and in correspondence received by the committee was the prevailing
culture in the ADF which may well undermine the success of the current reforms.
The committee stresses that the ADF have a challenging road ahead in turning
this culture around and encourages and commends any efforts to do that.
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