The Efficacy of the Australian Military Justice System

Over the past decade, numerous formal inquiries, triggered by a growing number of complaints, have identified flaws in the Australian Defence Force (ADF) military justice system and processes, and have recommended changes. The Senate Foreign Affairs, Defence and Trade References Committee, in a report in June 2005, concluded that there was a pressing need for a wholesale review of the military justice system. Key features of its 40 recommendations included:

• the establishment of an Australian military court, independent of ADF chains of command, to replace the current Courts Martial and Defence Force Magistrates
• a new Chief of the Defence Force-authorised Commission of Inquiry for complex or sensitive incidents that would have an independent civilian president
• a joint ADF investigation unit, and
• a streamlined complaints system.

The Howard Government’s response to the committee’s report acknowledged that Australia’s disciplinary system was not striking the right balance between the needs of a functional defence force and service members’ rights. It agreed that 30 of the 40 recommendations should be accepted in whole or in part.

Given the sweeping nature of the recommended reforms, plans for legislative amendment were divided into two stages. The first stage was the Defence Legislation Amendment Act 2006, which established a permanent Australian Military Court under the Defence Force Discipline Act 1982, and replaced the system of Courts Martial or Defence Force Magistrates. The amendments came into effect on 1 October 2007. The Act also amended the regulation-making power in the Defence Act 1903 to facilitate the creation of a ‘Chief of Defence Force Commission of Inquiry’ responsible for the conduct of independent and impartial inquiries into notifiable incidents, including suicide, accidental death or serious injury.

The second stage of the legislative amendment was the Defence Legislation Amendment Bill 2007, which contained provisions intended to modernise and redesign summary discipline procedures. As the Bill was not passed at the time parliament was prorogued, it lapsed, leaving important reforms to the system of military law unfinished.

This issue is likely to occupy the attention of the 42^nd Parliament until the work to build a transparent, relevant, cohesive and robust military justice system is completed. Amendments to simplify the rules of evidence in summary proceedings, which were contained in the Bill, were contentious. A Senate Standing Committee for Foreign Affairs, Defence and Trade report on the Bill recommended some changes to the provisions to ensure that the rules of natural justice were observed.