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