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Chapter 3 - Military tribunals
Office of the Director of Military Prosecutions
3.1
As noted in Defence's first progress report, the statutory position of
Director, Military Prosecutions (DMP) was established under legislation
assented on 12 December 2005. The position is at one star rank and the
Commonwealth Remuneration Tribunal determines the remuneration for the DMP.
Defence informed the committee that in line with recommendations made by the
committee, eleven additional positions have been established and are being
filled and additional resources such as IT and accommodation have been reviewed
and are being progressed. Other measures taken include:
- two new training positions have been established in the Office of
the Director of Military Prosecutions (ODMP) to facilitate the training of
newly assigned officers;
- the Commonwealth Director of Public Prosecutions (DPP) is
providing assistance in the training of newly assigned officers to the ODMP;
- the DMP has commenced a range of briefs to the services and
various command and staff courses to raise the awareness of the ODMP;
- a web page has been developed to further assist raising awareness
and the profile of the DMP;
- all legal officers in the ODMP now hold practicing certificates;
and
- relevant professional ethical standards are under consideration.[1]
3.2
The DMP, Brigadier Lynette McDade, informed the committee that she had
12 prosecutors, including herself, and anticipated two more joining the team in
June. According to the DMP, the current number of prosecutors represented a
significant increase in that resource. She also explained that no one in the ODMP
had yet been seconded to civilian practice. It was her intention, however, to
have people seconded to work with the State and Commonwealth DPPS and legal aid
services for short periods of time to give them exposure and experience 'to
enable them to become effective prosecutors'. In her view, rather than rely on
the reserve which it had done in the past, the ODMP would develop a very good
capacity to prosecute.[2]
Director of Defence Counsel Services
3.3
In its previous report, the committee noted that the position of
Director of Defence Counsel Services (DDCS) had been established and filled.
The committee notes, however, that in his annual report for 2005, the Judge Advocate
General (JAG) referred to the desirability of the DDCS being established as an
independent statutory position. He outlined the reasons for having the DDCS
independent from the chain of command:
While DDCS remains as a staff officer within the chain of command,
it seems to me inevitable that there will be the potential for conflicts so far
as the expenditure of resources on an accused person's defence is concerned. On
the other hand, if DDCS is independent of the chain of command, with a budget
to manage and is answerable to Parliament for the expenditure of those funds
and the provision of adequate legal representation to accused persons, this
would free the discharge of the functions from any perception that resources
were in some way being limited because of command influence.[3]
3.4
In his submission to the committee's inquiry into the Defence
Legislation Amendment Bill 2006, the JAG reiterated his view that the DDCS
should be a statutory appointment which to his mind was preferable to the
approach of delegated authority from CDF taken in the bill.[4]
3.5
In its consideration of the proposed legislation, the committee
suggested that as part of its review of the provisions of the bill, the
government consider the desirability of establishing the DDCS as an independent
statutory position.[5]
The committee reiterates this suggestion.
Permanent Military Court
3.6
During its inquiry into Australia's military justice system, the
committee examined the ADF's disciplinary tribunals. It cast considerable doubt
over the impartiality of current structures and argued that service personnel's
right to access fair and independent tribunals was under threat. It found:
Australia's disciplinary system is not striking the right
balance between the needs of a functional Defence Force and Service members'
rights, to the detriment of both.[6]
3.7
The committee recommended that the government establish an independent
permanent military court. It would be staffed by independently appointed judges
possessing extensive civilian and military experience that would extend and
protect a Service member's inherent rights and freedoms, leading to impartial,
rigorous and fair outcomes.[7]
3.8
The government supported the committee's main recommendation to create a
permanent military court. It was aware of the criticism directed at the current
system that 'stemmed from the location of judge advocates and Defence Force
Magistrates (DFMs) within the military chain of command and the implications
for their (actual and perceived) independence'.[8]
3.9
On 14 September 2006, the Minister Assisting the Minister for Defence,
the Hon Bruce Billson MP, introduced the Defence Legislation Amendment Bill
2006 into the House of Representatives. The main purpose of the bill was to
give effect to the government's undertaking to enhance Australia's military
justice system as outlined in its response to recommendations contained in the 2005
report on Australia's military justice system.
3.10
The bill proposed to replace the current system of trials by Courts
Martial (CMs) and DFMs. with an 'Australian Military Court' (AMC) that was to
consist of the Chief Military Judge (CMJ), two full-time Military Judges (MJs) and
no more than 8 part-time MJs. A service offence would be tried by a MJ alone or
MJ with a military jury depending on the classification of the offence. In some
cases, the accused person could elect to be tried by a MJ alone or a MJ and
military jury.
3.11
The provisions of the bill were referred to the committee for inquiry
and report. In its report on the proposed legislation, the committee acknowledged
that the bill introduced a number of positive features that would confer a
greater degree of independence on the proposed AMC. While it recognised that the
bill was intended to improve service tribunals, the committee was disappointed
that the government did not go further in strengthening the independence of the
court and in guarding against possible influence from the chain of command. The
evidence before the committee identified a number of areas of concern including
:
- the jurisdiction of military court and the possibility of a
successful High Court challenge to its validity (military tribunals are not
constituted in the same manner as courts created under Chapter III of the
Constitution);
- the 5-year fixed terms and the possible adverse effect on the
judicial experience of the court and its ability to attract high quality legal
officers;
- the renewable five-year terms, which are not automatic and which,
according to the JAG, 'considerably reduces the actual and perceived
independence of the judges of the AMC';
- the provisions for terminating an appointment which, under
specified circumstances, provides for the minister to terminate an appointment,
not the Governor-General on address by both Houses of Parliament;
- compulsory retirement for MJs from the ADF upon ceasing office as
a MJ and the likelihood that this provision would diminish the attractiveness
of the position and dissuade suitable appointees from applying for the office;
- the lack of incentive for an accused to opt for the more
administratively convenient trial by MJ alone;
- the composition of a military jury especially in light of the
jurisdiction of the AMC extending to criminal offences committed overseas—it
should be noted that the Senate Standing Committee for the Scrutiny of Bills expressed
concerns about the constitution of the proposed military jury and sought advice
from the Minister;[9]
- the failure to stipulate that the AMC was to be a court of
record;
- the transitional arrangements from the current service tribunals
to the Military Court.[10]
3.12
The committee concluded that overall:
...the government settled for the barest minimum reforms required
to its service tribunals to escape a constitutional challenge...that, in striving
for the minimum, the government has not removed the risk that at some stage the
High Court may find that the AMC is constitutionally invalid. In addition to
this concern, the committee believes that some of the provisions would:
- lead to greater inefficiencies in the court;
- fail to strengthen the independence and impartiality of the
court; and
- undermine its experience and hence the court's standing as a
judicial institution.[11]
3.13
The government decided to delay debate on the bill to allow time for
amendments to be drafted and presented to parliament. On 29 November 2006, the government introduced amendments. They were to give effect to the matters
raised by the committee in its consideration of the bill. The most significant
amendments included:
- extending the term of appointment of the CMJ and MJs from a 5-year
to a fixed ten-year period;
- the automatic promotion of the CMJ and MJs at the mid-point of their
10-year appointment;
- the Governor-General, not the Minister, to appoint the CMJ and MJs;
- the Governor-General, not the Minister, to have the authority to terminate
the appointment of the Chief Military Judge and Military Judges;[12]
- removing the requirement for the automatic retirement of a member
from the ADF following his or her tenure as the CMJ or a MJ;[13]
- a jury of 12 members required for class 1 offences (the more
serious offences);[14]
- a decision of a military jury to be unanimous or alternatively,
by a five-sixths majority but only in the following circumstances:
- where it had deliberated for at least 8 hours and unanimous agreement
had not been reached but a five-sixths majority agreement had; and
-
the court was satisfied that the deliberation time was
reasonable, having regard to the nature and complexity of the case; and
- after examining one or more jurors (on oath or affirmation) it was
unlikely that the jurors would reach unanimous agreement following further
deliberation;[15]
- according the AMC the status of a court of record but with a
provision that would limit the publication of proceedings in the interests of
the security and defence of Australia, the proper administration of justice or
public morals or any other matter the court considers relevant.[16]
3.14
The amendments were a positive step toward providing members of the AMC
with security of tenure and judicial independence.[17]
They also included additional safeguards that would protect the right of an
accused to a fair trial. The bill as amended was passed by parliament and
received assent on 11 December 2006.
3.15
The CDF informed the committee that with the legislation coming into
force, the ADF was putting in place procedural and administrative matters to
allow the AMC to commence on 1 October 2007 or earlier by proclamation.[18]
3.16
It should be noted that the form of the right to elect trial from
summary procedures to the AMC is to be included in legislation to revise
summary procedures. The right of appeal from summary authorities to a MJ of the
AMC will also be included in legislation to revise summary procedures. Defence
expect the legislation to be introduced into Parliament in 2007.
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