Chapter 1
Annual reports of statutory and non–statutory
authorities and government companies
Defence portfolio
Judge Advocate General
1.1
The Judge Advocate General Report for the period
1 January to 31 December
2005 was tabled in the Senate on 20 June 2006.
1.2
The office of Judge Advocate General (JAG) of the
Australian Defence Force (ADF) is a statutory body created under the Defence Force Discipline Act 1982 (DFDA).
The JAG must be, or have been, a Federal Court or a Supreme Court judge. The
position has a number of functions, including making procedural rules for
service tribunals, providing the final legal review of proceedings within the
Australian Defence Force (ADF), and, reporting upon the operation of laws
relating to the discipline of the ADF. ‘The JAG also has a significant role in
the promotion of the jurisprudential welfare and education of the ADF’.[4]
1.3
Section 196A of the DFDA requires the JAG to prepare for,
and provide to, the Minister for Defence a report relating to the operation of
the DFDA, the regulations and rules of procedure made under it, and the
operation of any other law of the Commonwealth or ACT, in so far as that law
relates to the discipline of the Defence force.
Overview of the JAG Report
1.4
The 2005 report began with an overview of the JAG's
position in the military justice system and the functions of members of his
office. He drew attention to a gap that had occurred between the expiry of his
appointment on 13 August 2005,
his period as acting JAG from 21 September and subsequent re–appointment on 6 October 2005. The break that
occurred between August 14 to 20
September 2005 meant that for five weeks there was no JAG. He
summarised the reasons he thought that this situation was unacceptable.
Not only does this mean that there has been a break in the
independent judicial oversight of the discipline system, but in practical
terms, because of the current arrangements which require the JAG to nominate
the President and members for a court martial, and the judge of DFM, there was
a serious disruption to the listing of matters for trial.[5]
Independence
of the JAG
Funding arrangements
1.5
The JAG believes that his office and its functions: 'are
indicative of the legislature's desire for an appropriate civilian judicial
oversight of the operation of the DFDA and related legislation'.[6] He is very aware of the importance of
his office being, and being seen to be, independent. In this context, he was
pleased to report in his 2004 report that his concerns about the need to have
his office physically separated from the broader Defence legal office had been
addressed satisfactorily.[7] In the
current report, however, he referred to the existing funding arrangements for
his office which continues to be part of the Defence Legal budget and the
expenditure certified by the Head, Defence Legal (HDL). He believed that this
arrangement was inappropriate and would be resolved in early 2006. He
explained:
During the year the then CDF, General Cosgrove, acceded to my
request that financial responsibility for OJAG be removed from Defence Legal
and devolved to the Office of VCDF. However, that had no occurred by the end of
the reporting period.[8]
Reporting regime
1.6
The reporting regime also strengthens the JAG's
independence and enables his office to perform its oversight role more
effectively. He explained:
In raising matters in the annual reports, successive JAGs have
endeavoured to flag for parliament and the Service Chiefs important issues that
needed to be addressed...it will be readily apparent that practically all of the
suggestions and recommendations made over the years have subsequently been
introduced. Regrettably, however, it has often taken subsequent intervention,
such as the recent inquiry into the Effectiveness of Australia's Military
Justice System for that to occur. By the time of this intervention, several
years will inevitably have passed and what was originally a matter of keeping
the legislation up to date with developments in the law within Australia
and overseas becomes, instead, an issue of serious concern.[9]
1.7
The JAG noted that there is no formal mechanism for
matters raised in the annual report to be formally considered and responded to.
In his view, this arrangement is a 'serious deficiency which defeats the self–regulating
purpose of the JAG's report'.[10] He again
referred to his previous 2004 report in which he expressed concerned that his
report and the purpose of his report in providing parliament with an
independent report relating to the operation of the DFDA was not fully
appreciated.[11]
Committee view
1.8
The committee draws attention to the JAG's observations
that under his reporting regime there is no mechanism for the government or the
ADF to respond to recommendations in his report.
The inquiry into Australia's
military justice system
1.9
The report then commented on the Senate Foreign
Affairs, Defence and Trade Reference Committee's
inquiry into the effectiveness of Australia's
military justice system and the government's response to the committee's
recommendations. The JAG drew particular attention to some of the positive
reforms coming out of that inquiry including:
-
the creation of the Australian Miliary Court (AMC)
as a permanent military court;
-
the creation of the statutorily independent
office of Director of Military Prosecutions (DMP);
-
the establishment of a Director of Defence
Counsel Services (DDCS); and
-
the introduction of a right of appeal from summary
authorities to the AMC.
1.10
It should be noted that the government has indicated
that the AMC would consist of a Chief Judge Advocate and two permanent judge
advocates, with a part-time reserve panel. Further, that the remaining
functions of the JAG would be transferred to the Chief Judge Advocate and the
Registrar of Military Justice.[12]
1.11
On 5 July 2006,
the Minister assisting the Minister for Defence, the Hon. Bruce
Billson MP, announced that the Minister for
Defence had selected Lieutenant Colonel Lyn
McDade to be appointed as the first Director
of Military Prosecutions. She will be promoted to the rank of Brigadier and
hold the DMP appointment for a term of five years. At the same time, Mr
Billson announced that Lieutenant Colonel
Geoff Cameron CSC had been selected by the Minister for Defence to be the first
Registrar of Military Justice. He will be promoted as colonel for a five year
term. A number of other important positions have been established including
Chief Judge Advocate as a statutory appointment and the Director of Defence
Counsel Services.[13]
1.12
The JAG recorded his approval that the skill and
responsibility of the DMP had been recognised by providing for a minimum rank
of Brigadier. He stated, however, his preference for the DDCS to be created as
a statutory position independent from the chain of command. He argued:
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 provisions 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.[14]
1.13
The committee notes that the JAG expressed
disappointment that the Senate Foreign Affairs, Defence and Trade References Committee
did not seek his opinion on the various recommendations that were ultimately
contained in the military justice report. He stated:
In my view, independent comment would have been particularly
useful in providing some balance when the Committee
was obviously relying very heavily upon a position paper, the content of which
was not raised either with me or with the CJA.[15]
Committee view
1.14
The committee notes the JAG's views on the Senate
Foreign Affairs, Defence and Trade References Committee not seeking further
advice from him when in the final stages of formulating its recommendations
following its inquiry into Australia's
military justice system. It should be noted, however, that the legislation
committee is closely monitoring the implementation of reforms to the system and
intends to invite the JAG to present his views on reforms to the military
justice system particularly when the legislation to establish the AMC is
presented to parliament.
Security of tenure
1.15
In previous reports, the JAG has discussed key
initiatives to imbue military judiciaries with 'genuine independence consistent
with that found in the civil courts'.[16]
The JAG argued that safeguards for the independence of military judiciaries should
include security of tenure, security of salary and independence from command
influence.
1.16
In turning to the government's response to the Military
Justice Report, the JAG suggested that security of tenure and independence from
the executive government remain problematic.[17]
He had concerns that the government's response proposes renewable fixed terms
for judge advocates who will make up the AMC. He argued:
It is important that the provisions guaranteeing independence
for CJA and the JAs of the AMC, including provisions for appointment, tenure
and removal. It follows that the independence appropriate for judges of the AMC
is different from that which may be appropriate for tribunals. Rather, it
should equate, as far as possible, with that given to judges.[18]
1.17
Consistent with this reasoning, he recommended that
judges of the AMC should be appointed until compulsory retirement age.[19]
1.18
His report also noted that the government's response
did not cover the termination of the appointment of members of the AMC. Again,
drawing parallels with civilian judges, he suggested that any approach 'should
be consistent with the concept that removal of a judge should only be by the
Governor-General on address by both Houses of Parliament'.[20]
1.19
On this matter of security of tenure, the JAG also
alerted the government to the risk that the CJA and the JAs may be removed by
what he termed 'collateral attack' on the basis of their appointment as a
serving officer. Although he identified this possibility as a problem, he
supported the view that the JA should be a serving officer.[21]
1.20
Finally, the JAG suggested that the term 'judge
advocate' reflected an historical function that is 'completely at odds with the
judicial function now performed' and is inappropriate.[22]
Judicial officers and
administrative inquiries
1.21
The JAG had concerns about serving judicial officers
being members of Boards of Inquiry and other types of administrative inquiry
processes. He noted that administrative inquiries are not an exercise of
judicial power—they are constrained by their terms of reference; are not
required to apply the rules of evidence; and do not make binding
determinations. He stated:
To use serving judicial officers to conduct administrative
inquiries is, to my mind, to potentially debase or undermine the very
characteristics of their judicial office which make their appointment so
attractive to the Executive.[23]
Delays in bringing matters to trial
1.22
In his 2004 annual report, the JAG commented on the
significant delays occurring in bringing some matters to trial at the court
martial and Defence Force Magistrate level. In the 2005 report, he indicated
that the problem continued with some matters up to three, four and five years
old coming for trial.[24] He stated
that this situation was unacceptable 'either in terms of discipline or the
stress and anxiety which it must occasion the accused person'. In his view the
matter of delay needs to be addressed.
The role of the JAG in providing
civilian judicial oversight of the operation of the DFDA
1.23
The JAG concluded his report by discussing the
importance of his function in providing independent oversight and the proposed
establishment of the AMC. He noted that his current responsibility for
providing 'the final and binding legal report in connection with the internal
review of convictions will disappear with the mature arrangements for appeals
from summary matters to the AMC, and for a broadened right of appeal from the
AMC to the Defence Force Discipline Appeals Tribunal'. He understood that the
Chief Judge Advocate could report to parliament on the functioning of the AMC.
He cautioned, however, that 'the issue remains whether the much broader
independent judicial oversight of the discipline system as a whole should
continue'. He underlined his view that:
...if used properly, the JAG's annual report is an important part
of the self–regulating machinery designed to keep the DFDA, and the discipline
system as a whole, current. In this respect, it is quite wrong to envisage
those functions currently performed by the JAG will be equivalently transferred
to CJA and RMJ.[25]
1.24
He was of the view that if the JAG's oversight and
reporting roles are to continue, it is 'important that the JAG be able to rely
upon the counsel and experience of the DJAG's drawn from each of the Services'.
1.25
He summed up his report by again stressing the
importance of the JAG's annual report in 'maintaining the jurisprudential
currency of the military justice system'. He noted:
If the report is to be discontinued, it is important that some
other mechanism is put in its stead.[26]
Committee view
1.26
The JAG has raised a number of significant matters with
regard to the independent oversight of the operation of the DFDA and related
legislation particularly in light of the proposed AMC. The matters identified
by the JAG included:
- the JAG's annual report and the absence of a
mechanism requiring consideration of recommendations contained in the report;
- factors that undermine the security of tenure of
judicial officers—renewable fixed terms and the conditions for termination of
appointment;
- the need to ensure that the oversight and
reporting role now filled by the JAG continues after the establishment of the
AMC; and
-
the term 'judge advocate' which, in his view, is
'at odds with the judicial function now performed'.
1.27
The committee believes that these matters warrant the
closest attention and should be a key consideration when decisions are finally
taken on the creation of the Court.
1.28
The legislation to establish the Court has not yet been
introduced into the Parliament. Nonetheless, the committee notes the JAG's
concerns and will pursue them as part of its role in scrutinising the
implementation of reforms to Australia's
military justice system.
1.29
The JAG also referred to delays in bringing matters to
trial. Again the committee has taken notice of the JAG's comments and will
monitor progress in this area.
Miscellaneous matters
1.30
In this comprehensive report, the JAG also provided an
overview of legislation affecting Discipline law including, Defence Legislation Amendment Act 2005, Defence
Legislation Amendment Act (No 1) 2005
and Defence Legislation Amendment Act (No
2) 2005.[27] He was pleased to
report that the Discipline Tracking and Case Flow Management System was working
as intended under the responsibility of the Inspector General Australian Defence
Force.[28] He also commented on the
programs in place to train ADF personnel in Discipline Law and the training
modules for ADF legal officers.
The committee's assessment of the
report
1.31
The committee considers that the report is an
invaluable tool for providing independent and expert systemic insight into the
operation of the military justice system.
1.32
It considers that the JAG's statutory independence provides
an effective mechanism for making the types of observations and recommendations
contained in this report. The statutory position of the JAG's office—outside
the military chain of command—provides the greatest possible guarantee of
impartiality and independence. This report is an example of how independence
and impartiality can improve the overall function and accountability of the
military justice system. The committee welcomes and endorses the JAG's
proactive stance in suggesting improvements to the military justice system, and
also welcomes the JAG's initiative of providing public information regarding
the operation of particular aspects of the military justice system.
1.33
In its report on the reforms to Australia's
military justice system tabled on 10 August
2006, the committee discussed the reporting regime governing the
IGADF. It highlighted its concern about the current regime and suggested that
the government consider strengthening the independence of the IGADF by
requiring him or her, as a statutory body, to furnish an annual report to the
Minister for Defence for tabling in parliament.
1.34
The JAG's report provides an ideal model and underscores
the many benefits that would result from a separate annual report by the IGADF
to the Minister. It would allow the same objective and frank assessment of the
health of Australia's
military justice system as shown in the JAG's report on the discipline system.
It would allow the necessary oversight free from the influences of the ADF,
provide vital feedback to the ADF on the strengths and weakness of the military
justice system and inform the parliament about the effectiveness of the system.
1.35
In summary, the report is well-written and gives a clearly-understandable
account of the operations and performance of the office of the Judge Advocate
General. The committee finds that this report fulfils the requirements outlined
in the Guidelines for statutory bodies.
1.36
The committee notes that under the DFDA, the JAG is
required, as soon as practicable after each 31 December, to prepare and furnish
to the Minister his report. The JAG transmitted his report to the Minister on 23 March 2006. The Minister is
required to table the report before each House of the Parliament. He or she is
to do so within 15 sitting days of that House after the day on which the
Minister received the report. The report was tabled on 20 June 2006, a few days late.
Foreign Affairs and Trade portfolio
Australia–China Council (ACC)
1.37
The Australia–China
Council Annual Report 2004–2005 was tabled in the Senate on 29 November 2005. The Council
was established by an Executive Council Order in 1978. As a non–statutory body
it is not formally required to table a report. However, the Council has adopted
the practice of submitting a report to the Minister and the Parliament.[29]
1.38
The mission of the Council is to foster in Australia
and China a
greater awareness and understanding of each others’ countries; and, to develop
and expand the areas of contact and exchange between Australia
and China and
their people.[30]
1.39
The ACC secretariat is part of the East Asia Branch of
the Department of Foreign Affairs and Trade. The secretariat implements Council
decisions and administers Council programs, funding and activities. It liaises
closely with other parts of DFAT; the Australian Embassy in Beijing;
the Consulates–General in Shanghai,
Guangzhou and Hong Kong;
and the Australian Commerce and Industry in Taipei.[31]
1.40
The committees notes that in his report last year, the
Chair, Dr John Yu,
expanded on proposed changes to the administration of the Council:
The Council conducted a review of its administrative processes
in 2002 and decided to move from organising its work through committees to a
program structure with various Council members responsible for each program.
...
To improve the quality of its annual reports, the Council has
adopted a new performance information framework with an outcome and outputs
structure. In order to publicise better the Council's activities, we have
expanded the Councils web site to provide more information about our programs.[32]
1.41
The changes are reflected in this year's report. In the
section on 'report on performance', it outlines the major outcome,
effectiveness indicators and three outputs.[33]
1.42
Across the three outputs, the reports describes
programs such as the Australian studies program, youth exchanges programs,
residency programs and a diverse range of interesting music and physical
education programs.[34]
1.43
The Committee notes
that in the administrative overview and appendices, the report provides
information on administrative arrangements, financial statements, the
organisation's strategic plan for 2004–2006 and details amendments to the Order
Constituting the Australia–China Council.[35]
1.44
The Council has produced an interesting report that
informs the reader on the operations and outcomes of the ACC. It is clearly
written and presented in a simple and effective format. The committee finds
that the report complies with the reporting requirements for non–statutory
bodies.
Australia–Indonesia Institute
1.45
The Australia–Indonesia
Institute Annual Report 2004–2005 was tabled in the Senate on 9 May 2006. The Institute was
established in April 1989 under an Order-in-Council. The Institute reports to
the Minister for Foreign Affairs and submits an annual report to the Minister
on its activities.[36]
1.46
The mission of the Institute is 'to develop relations
between Australia
and Indonesia
by promoting greater mutual understanding and by contributing to the
enlargement over the longer term of the areas of contact and exchange between
the people of Australia
and Indonesia'.[37]
1.47
Under 'programs', the report states that the Institute supports
and initiates activities consistent with its goals and on the basis of a
strategic program set by the Board. It states also, that the policy of the
Institute is to target groups and individuals in Australia
and Indonesia
who have an interest in a future relationship with substance with the other
country, including through the enhancement of institutional links.
1.48
The Institute receive its program funding from the
Australian government in the form of an annual grant-in-trust administered by
the Department of Foreign Affairs and Trade.
1.49
The reports states that during the year in review the
Institute was successful in attracting further funding from outside agencies to
support follow–on stages of programs. In particular the Australian Agency for
International Development (AusAID), provided funding for a number of projects, to
facilitate further education and training of educators in Islamic institutions
in regional and tsunami affected areas.
1.50
The committee notes that the total value of activities
which received Institute funding was far greater than the amount of Institute
funding. However, most of the activities involved substantial joint funding and
in–kind support from other organisations and individuals in both countries.[38]
1.51
The reports states that, in the course of the year,
Board members consulted with a broad range of other Australian organisations
and individuals about political, economic and cultural developments between
Australia and Indonesia.[39]
1.52
The Institute has produced an interesting report that
informs the reader on the operations and outcomes of the Australia–Indonesia
Institute. It is clearly written and presented in a simple and effective
format. The committee finds that the report complies with the reporting
requirements for non-statutory bodies.
Australia–Japan
Foundation
1.53
The Australia–Japan
Foundation Annual Report 2004–2005 was tabled in the Senate on 6 December 2005. The report was
tabled in accordance with section 25 of the Australia–Japan
Foundation Act 1976.
1.54
The Foundation was established as a statutory body by
the same Act in May 1976. It aims ‘to encourage a closer relationship between
the peoples of Australia
and Japan, and
to further the knowledge and understanding of each other’. To achieve this, the
Foundation strives to ‘inform the Japanese people about Australia, by
increasing their knowledge and networks and influencing their perceptions of
contemporary society and lifestyle, politics and government, arts, culture and
sport, the natural environment and its management’.[40]
1.55
The Committee notes, in the Chairman's report, that the
Board has undertaken an administrative review. The review was instigated to
maximise the Foundation's program funding and to ensure the organisational
structure supported its goals and responsibilities:
...As part of this process the Board decided to relocate the
senior director position to Canberra
and to localise the Tokyo director
position in 2005–2006. In addition, much work has been done during this
financial year to streamline accounting and administrative practices, which
will further enhance internal management and financial reporting to Government.
I am pleased with the progress made to date.[41]
1.56
The committee notes that the Foundation measures its
achievements against one outcome through three outputs. The report describes in
detail the outcome, the outputs, the quality and quantity indicators. It also
describes each program undertaken in the output and its total cost. The
chapters on 'management and accountability' and 'other mandatory information'
and appendices, are informative and provide all the information necessary to
comply with the compliance index.[42]
1.57
The committee finds that the Foundation has produced an
interesting report that informs the reader on the operations and outcomes of
the Australia–Japan Foundation. It is clearly written and presented in a simple
and effective format. The committee finds that the report complies with the
reporting requirements for statutory bodies.
David Johnston
Chair
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