Chapter 1

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:

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:

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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