Chapter 4 Justice and Security
Military Justice System Reforms
In January 2009, the Hon Laurence Street, AC, KCMG, QC and Air Marshal
Les Fisher, AO (Retd) published the Report of the Independent Review on the
Health of the Reformed Military Justice System.
The Australian Military Court (AMC) was established on 1 October 2007 to
try serious service offences involving ADF personnel. On 26 August 2009 the
High Court of Australia declared the provisions of the Defence Force
Discipline Act 1982 (DFDA) establishing the AMC were constitutionally
The High Court’s decision (Lane vs Morrison  HCA 29)
removed the AMC from the military discipline structure. As an interim
arrangement the previous MJS has been re-established.
The Military Court of Australia Bill 2010 is intended to implement an
equivalent to the AMC and was introduced into Parliament in June 2010, then
referred to the Senate Legal and Constitutional Legislation Committee. This
process lapsed when the 42nd Parliament was pro-rogued, but the Bill is
intended for reintroduction in the 2011 Spring sittings.
Public and Parliamentary scrutiny of the quality of some administrative
inquiries conducted by the ADF has identified a need for improvement. This has
been acknowledged by Defence and the CDF has issued a Directive mandating
interim measures and has commissioned a review by the Inspector General of the ADF
into the administrative inquiry system.
The Committee was interested to hear if the lack of establishment of the
Australian Military Court had caused any detriment to military justice.
Defence informed the Committee that:
The current interim system is operating and functioning as it
was expected that it would, because in large measure it is returning to a system
that had worked in the past. The other side of that is that the initiative that
had been announced and adopted over time of moving to a chapter 3 court has not
occurred, but there is a functioning military justice system, which is a fully
The Committee enquired as to whether there was any indication that
people are not receiving fair justice under the current system of court
I would not certainly suggest that for one moment. Indeed,
notwithstanding the High Court in the Lane v. Morrison decision found the
military court system to be constitutionally invalid, there was no criticism
either of the quality of justice under that system. I suppose I could say
whichever system we have had the indications are that the matters have been
dealt with. However, I should comment that the joint standing committee did
consider that it was not an ideal system, and that was why they recommended to
government a chapter 3 outcome. My recollection is that was a unanimous view of
The Committee is satisfied that, despite the issues surrounding the
introduction of the Australian Military Court and its subsequent rejection by
the High Court, the Military Justice System is functioning.
Security of Vital National Assets in the North West of Australia
The North West of Australia contains substantial natural resources and
facilities to exploit them, including several ports servicing the export
Products include LNG, LPG, condensate, gold, iron ore, diamonds,
alumina, mineral sands, nickel, tantalum, and salt. These assets provide a
substantial portion of Australia’s domestic requirements, export balance of
trade and GDP.
The Committee noted that the 2009 Defence White Paper makes the judgment
that the Indian Ocean region will become of increasing strategic importance to
Australia over the next 20 years or so. Defence commented:
To go to the issue of the assets that we have in terms of the
north-west part of the country, we have the Pilbara regiment which is based at
Karratha. That is a force engaged in the business of patrolling and undertaking
remote surveillance activities. There is also the so-called bare bases of RAAF,
Learmonth and Curtin, and in terms of operational activities the most regular
presence that Defence manifests is through the support that we provide to
Border Protection Command.
The Committee asked how long it would take for the bare bases of
Learmonth and Curtin to become operational in the event of an emergency
Defence staff explained that “ . . . [t]hey can be brought up to
operational capability at relatively short notice, depending on the rate of
effort that the Defence Force wants to put into that.”
On 22 June 2011 the Minister for Defence Stephen Smith announced that
the Government would undertake a Force Posture Review to assess whether the
Australian Defence Force (ADF) is correctly geographically positioned to meet
Australia’s modern and future strategic and security challenges.
n The Force Posture
Review will be undertaken by the Department of Defence and overseen by an
expert panel made up of two Australian national security specialists: Dr Allan
Hawke and Mr Ric Smith.
n The results of the
Review and the views of the Expert Panel will help provide a strategic context
for the next scheduled Defence White Paper in the first quarter of 2014.
n The Review will
address the range of present and emerging global, regional and national
strategic and security factors which require careful consideration for the
-> the rise
of the Asia-Pacific as a region of global strategic significance;
-> the rise
of the Indian Ocean rim as a region of global strategic significance;
growth of military power projection capabilities of countries in the Asia
growing need for the provision of humanitarian assistance and disaster relief
following extreme events in the Asia Pacific region; and
security and security issues associated with expanding offshore resource exploitation
in our North West and Northern approaches.
n The expert panel will
provide a progress report to the Minister before the end of 2011, with its
Report provided to Government during the first quarter of 2012.
The Committee is pleased to see that its concerns in relation to the
Security of Vital Assets in the North-West of Australia will be addressed by
the Government’s Force Posture Review.
Border Protection Command
Border Protection Command provides security for Australia's offshore
Combining the resources and expertise of the Australian Customs and
Border Protection Service and the Department of Defence, and working with
officers from the Australian Fisheries Management Authority, the Australian
Quarantine and Inspection Service, and other Commonwealth, State and Territory
agencies, Border Protection Command delivers a coordinated national approach to
Australia's offshore maritime security.
The Command is responsible for coordinating and controlling operations to
protect Australia's national interests against the following maritime security
n Illegal exploitation
of natural resources;
n Illegal activity in
n Irregular maritime
n Maritime Terrorism;
n Compromise to
n Marine Pollution.
Headquarters Northern Command (HQNORCOM) is the Australian Defence Force
operational headquarters in Darwin that coordinates and controls military
operations in Australia's north.
Its major operational responsibility is Operation Resolute, the
Australian Defence Force's contribution to the Australian Government's efforts
to deal with the maritime security threats.
Operation Resolute is commanded by Commander Border Protection Command;
however day-to-day operations have been delegated to Commander Northern Command
with further assistance provided by a number of Commonwealth, State and
The Committee asked Defence to detail what the ‘real cost’ of Operation
Resolute was. Defence replied:
It is Government policy to supplement Defence for the net
additional costs of major operations it is involved in.
Defence does not estimate the full cost of operations as this
would not enhance budget processes as Government seeks only to supplement
Defence funding for the net additional costs of conducting operations.
The net additional cost of an operation includes such things
as any movement costs, additional personnel costs such as rations and
allowances, extra fuel used by assets deployed, and remediation costs on
completion of the operation, including repair and overhaul of equipment and
replacement of consumables.
The full cost associated with Operation Resolute is not
specifically captured within Defence’s financial systems.
The Committee asked Defence to provide a list of the assets in terms of equipment
and manpower that have been force assigned from various agencies to Commander,
Protection Command. The Committee asked:
(a) Commander NORCOM is the Deputy
Commander of JTF 639. Is he Deputy Commander of Border Protection Command as
well, or is that a Customs officer?
(b) How much of Headquarters NORCOM’s
current tasking comes through JTF 639, and how much is through the normal
tasking that comes down to them? In other words, how much of their time is
taken up by Operation Resolute? If you could come back with the detail for the
last five years with the percentage of his time that has been taken up with
(c) What is the Commander NORCOM, and
Headquarters NORCOM as an entity, now not doing because of the substantial
requirement for Operation Resolute?
(a) Commander Border Protection
Command (BPC), also Commander Joint Task Force 639 (CJTF 639), has two
deputies: one ADF officer and one Customs officer. Commander Northern Command
(COMNORCOM) is Deputy Commander JTF 639 (DCJTF 639). A Customs Officer in BPC
is Deputy Commander BPC.
(b) (Commander NORCOM duties
include DCJTF 639 (OPERATION RESOLUTE); Senior ADF Officer Northern Territory;
Senior ADF Officer Larrakeyah Barracks and Defence Establishment Berrimah; and
ADF Principle contact for Defence Aid to the Civil Community in the Northern
Command Area of Operations. COMNORCOM is also prepared to command ADF and Whole
of Government operations in the northern approaches as directed by Chief of
Joint Operations. Approximately 65 per cent of NORCOM workload is dedicated to
OPERATION RESOLUTE. A breakdown of the commitment between the two roles is
detailed below including significant events/ activities for the year:
TC Monica / Mounting HQ OP
FFV surge activity
FFV surge activity
Low FFV/SIEV activity
SIEV surge activity
SIEV surge activity
SIEV surge activity
Five year average
1 Figures for 2011 are
(c) Commander NORCOM manages his
resources to meet his organisational priorities. The organisation has had an
operational role in the border protection domain (through Operations RESOLUTE,
RELEX and CRANBERRY) since the inception of the Headquarters in 1988.
Throughout this period successive incumbents of the Commander NORCOM position
have balanced the roles abbreviated in the answer to part (b). 
ADF Base Security
In August 2009 five men were arrested after a joint operation between
Australian Federal Police, Victoria Police, NSW Police, the NSW Crime
Commission and Australian Security Intelligence Organisation (ASIO).
These men (allegedly connected with the Somali-based terrorist group
al-Shabaab) intended to gain access to Holsworthy Army Base, then use
semi-automatic weapons to kill as many Army personnel as possible, probably as
a suicide Mission. Their motivations are understood to be anger at the
presence of ADF troops in Iraq and Afghanistan, and a desire to further the
cause of Islam.
Three were found guilty by the Victorian Supreme Court in December 2010
of conspiring to do acts in preparation for or planning a terrorist act, and
the other two were acquitted.
The Base had limited physical protection with security provided only by
lightly-armed civilian security guards. The large number of Army personnel on
the Base had no ready access to weapons or legal grounds to fire in
This incident had potential for grave embarrassment and risk to ADF
personnel. Of note is that very soon after the arrests were made, and despite
heightened concerns over security, Daily Telegraph journalists gained access to
Holsworthy Army base and were only arrested after a period of wandering freely
around the base.
ADF base security has been under review for an extended period,
particularly since 9/11 and the Bali Bombings. Defence is currently
implementing its Base Security Improvement Program. Some heightened measures
have been put in place, but some bases are still only lightly protected. For
example, Lavarack Barracks in Townsville is only partly fenced, and RMC
Duntroon is an open base where numerous ADF senior leaders reside in unsecured
In August 2009 the Government asked Defence to conduct a comprehensive
review of base security. The Review of Defence Protective Security
Arrangements subsequently recommended a number of policy and physical security
initiatives to complement and strengthen existing security at Defence bases.
One of the recommendations of the Review was to bring forward a number
of legislative amendments. The resulting Bill was introduced into Parliament
just prior to the last election, then re-introduced in September 2010.
It was the subject of an inquiry by the Senate Foreign Affairs, Defence
and Trade Legislation Committee which proposed certain amendments, but
recommended passing the Bill. This Bill provides enhanced powers for ADF
employment of force (including lethal force), search and seizure and
surveillance to secure Defence bases.
A total of $339 million was allocated for base security enhancements, starting
with $10 million in 2009-10, and then the further $329 million to financial
year 2013-14. The Committee sought information on how much has been spent so
far and what has it been spent on?
We have committed approximately $24 million to date to
implement a series of security enhancements at a number of bases, most notably
Holsworthy, Russell, Duntroon and also the Garden Island complex. The types of
improvements implemented include some improvements to fencing, also increased
security patrols, installation of closed circuit TV systems, intruder alert
devices, security lighting upgrades, and also upgrade of emergency operations
The Committee were interested in Defence’s policy relating to on/off
base location for Defence support activities. To relieve accommodation on base
and strengthen security several state and local governments invested in
industrial subdivisions adjacent to Defence infrastructure. The Committee asked
whether the Department of Defence will continue to support this regional
investment by encouraging Defence contractors to establish off base, and to
assure these investors that there is no policy by the Department of Defence to
concentrate Defence support activities back on base in certain locations:
The 2009 Defence White Paper – Defending Australia in the
Asia-Pacific Century: Force 2030 outlined the Government’s strategic basing
principles to meet the future needs of Defence. One of these principles is that
Defence should aim to group bases near strategic infrastructure and industry to
promote knowledge sharing, innovation, and to maximise the effectiveness of
industry support to the Australian Defence Force (ADF).
The Government recognises the important role that Defence
industry plays in support of ADF capability. The provision of on-base
facilities for Defence contractors will only be approved where there is strong
operational justification for contractors to be on base. A reduction in direct
project costs is not seen to be a sufficient justification for contractors to
be provided with facilities. Defence contractors who are permitted to use
on-base facilities will be expected, at minimum, to pay costs associated with
the occupancy of those facilities.
The Committee asked Defence if they would prefer contractors to be back
Allowing use of the estate by non-Defence entities requires a
careful balance to ensure Defence is able to continue to deliver capability and
support ADF personnel. Defence generally prefer contractors located off-base.
The Committee was interested in how the dog breeding program at RAAF
Base Amberley is going, and whether it will be rolled out to other bases.
Defence informed the Committee that:
The Military Working Dog Breeding Program is meeting its requirement
to breed sufficient numbers of military working dogs for the RAAF schedule of
training. Sufficient military working dogs are available and assessed at
‘course ready status’ to team with individual handlers to conduct training,
which in turn meets the requirements for dogs across all RAAF Bases.
There is no plan to expand the breeding program or ‘roll out’
to other bases. Such a plan would not be cost effective as it would require
considerable funding to support dedicated breeding facilities and personnel at
each location. The centralisation of the breeding program at RAAF Base Amberley
is essential to ensure best practice is maintained through one centre or
location of military working dog training and subject matter expertise.
The Committee also wanted to clarify if dog patrols used on Australian
bases and, if so, which bases. Defence told the Committee that:
Military working dog teams are employed on most RAAF Bases
where aircraft exist to support the overall security posture of the Base.
Security duties are varied but include mobile and foot patrols. Military
working dog teams are permanently stationed at RAAF Bases Amberley and
Townsville in Queensland, Darwin and Tindal in the Northern Territory, Richmond
and Williamtown in New South Wales, Pearce in Western Australia and Edinburgh
in South Australia. 
The Committee asked if there would be any requirement for any physical
building that goes to the Public Works Committee post financial year 2013-14 as
a result of the Threat and Risk Assessment process. Defence responded:
Subject to Parliamentary approval, significant planned works
identified during the threat and risk assessment process that was completed as
part of the Base Security Improvement Program, will start in mid-2012 and
finish in 2013. At this stage, no public works will be needed after financial
year 2013-14. Some infrastructure improvements, such as upgraded vehicle and
personnel entry and exit points and the construction of vehicle inspection
bays, are scheduled for consideration at the Public Works Committee in early
Nevertheless, base security threat and risk assessments will
be conducted periodically (beyond the Base Security Improvement Program) and
new security requirements may be identified. These assessments may generate the
need for public works additional to those scheduled for Public Works Committee
consideration in 2012.
Also, the Base Security Improvement Program consists of more
than infrastructure improvements. Other program elements include incorporating
a number of mandatory security measures into base security policy and plans,
establishing an enhanced self-defence capability at some larger Defence bases,
increasing the police presence at Defence bases, introducing a non-consensual
inspection and search regime, and improving lighting and closed circuit
television. These changes are not required to go through the Public Works
Committee. Some of these enhancements (such as improved lighting and boundary
security) involve one-off expenditures and are on schedule to be completed
within the next two years. Other improvements, such as the enhanced
self-defence capability and increased police presence, will have ongoing
operating costs beyond 2013-14.
The Committee were curious as to who is providing security at the Scherger
bare base and, particularly, who is looking after Defence assets there. The
Department replied that:
RAAF Base Scherger has four permanent Air Force personnel on
base who are responsible for a range of tasks, including security of all
Defence assets when the airbase is not activated for Defence purposes. The
Department of Immigration and Citizenship provides security at the detention
compound and access control to the base at the main gate, but does not provide
security for Defence assets.
The Committee is concerned that, at the time of its public hearing, some
20 months after the threats to Holsworthy Barracks, the Defence Department is
only very slowly moving towards decreasing the threat level of its bases.