Joint Standing Committee on Foreign Affairs, Defence
On 25 November 1997 the Senate referred, for investigation, the issue of Australia's military justice system to the Joint Standing Committee on Foreign Affairs, Defence and Trade. The inquiry ceased following the prorogation of the Parliament on 31 August 1998 but was re-referred to the newly appointed Committee on 10March 1999. The Terms of Reference for the inquiry authorised the Committee to examine the adequacy and appropriateness of the existing legislative framework and procedures for the conduct of military inquiries and ADF disciplinary processes. The Joint Committee charged its Defence Sub-Committee with the conduct of the inquiry.
The Committee identified three distinct components of the military justice system employed within the ADF: military inquiries, military discipline and administrative action. Each of these components is expansive and the Committee has not attempted an exhaustive examination of every detail of the military justice system. Rather the Committee has sought to examine the existing legislation, policies and framework of the system of military justice employed by the ADF and to evaluate their effectiveness and relevance in practice.
The Committee was aware that a number of recent military inquiries conducted by the ADF have attracted considerable public interest and media comment. Predominantly these cases involved the loss of life of Service personnel. The considerable public attention focused on such cases has included criticisms of the efficacy of the current military inquiry system and questions of natural justice and human rights. Additionally, there has been considerable public support behind calls for external inquiries, or at the very least external reviews of inquiries, in cases involving the death of an ADF member. Less public attention has been focused on the systems of discipline and administrative action employed by the ADF although aspects of the Defence Force Discipline Act have been challenged, on several occasions, in the High Court of Australia in recent years.
Independence and impartiality in the military justice system was a strong theme throughout the conduct of the inquiry. In cases involving the death of an ADF member, the Committee was aware of a strong feeling, particularly from family members of the deceased, that the military justice system lacks independence. While the Committee received no evidence to support an allegation of a lack of independence in the military justice system there is no question that this perception exists in some quarters.
The Committee was cognisant that while the military justice system must, so far as possible, conform with community norms, the ADF has unique requirements for the administration of justice commensurate with its role in the defence of the nation. Moreover, these unique requirements exist as constraints and standards additional to the justice system that pertains to all citizens of Australia. Notwithstanding that members of the ADF voluntarily accept the imposition of an additional layer of justice when they choose to serve their country, the military justice system must be demonstrably independent, impartial and fair.
The Committee acknowledged the considerable changes, made by the ADF, to the military justice system during the course of the inquiry. Indeed the Committee inquiry was conducted in a somewhat dynamic environment with the ADF moving to address the recommendations of the Abadee report and the Ombudsman's 1998 review of practices and procedures. Given these circumstances, it is a persuasive argument that time should be allowed for the benefits of these changes to be realised before further change is contemplated. However the Committee was of the view that ADF initiated changes to the military justice system will not fully address both the perceived and actual independence and impartiality of the system.
The principal question confronting the Committee was how to redress this shortfall in the military justice system without impeding the workings of the ADF. Indeed foremost in the Committee's considerations was the need for any system of military justice to function effectively across the whole spectrum of conflict in which the ADF can be expected to operate.
The Committee accepted that the post-Abadee arrangements will significantly improve the impartiality and independence of the military discipline system. While the alternative of an independent prosecution authority was examined in detail, the Committee concluded that the option for the creation of such a body should be re-examined after the impact of the post-Abadee arrangements could be effectively assessed. With regard to military inquiries, the Committee was of the view that the issues of independence and impartiality would not be fully addressed by the changes proposed by the ADF. To redress this the Committee has proposed that a latent power within Defence (Inquiry) Regulations be used in some circumstances. The Committee has also proposed some changes to the administrative action process employed within the ADF to redress shortfalls in the areas of independence and impartiality.
While the Committee is of the view that these proposals will serve to improve the independence, impartiality and overall operation of the system, it is acknowledged that this report will be disappointing for some who saw the inquiry as an avenue of review for individual cases. It should be emphasised that this function was not within the Terms of Reference for the inquiry, nor was it within the powers of the Committee. Where the Committee touched on individual cases it did so solely to examine the procedures employed and the effectiveness of the military justice system.
On behalf of the Committee I would like to thank all organisations and individuals that contributed to the inquiry.
I wish to acknowledge the cooperation of the members of the Defence Sub-Committee in arriving at a unanimous report and to thank them for their great support and contribution through this, most complex, inquiry. I am especially grateful for the contribution and interest of the Hon Roger Price MP whose support was instrumental to the conduct of the inquiry.
Finally, I wish to thank the secretariat staff, the Secretary Mrs Joanne Towner, and the military advisers Wing Commander Paul Hislop and Lieutenant Colonel Michael Ward for their advice, assistance and enthusiasm.
Senator D.J. MacGibbon