The effectiveness of Australia's military justice system

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The effectiveness of Australia's military justice system

16 June 2005

© Commonwealth of Australia 2005
ISBN 0 642 71424 X

View the report as a single document - (PDF 1737KB)


View the report as separate downloadable parts:

Members of the Committee (PDF 90KB)
 
Terms of Reference (PDF 130KB)
 
Acronyms and abbreviations (PDF 90KB)
 
Preface (PDF 124KB)
 
Executive Summary and recommendations (PDF 251KB)
 
Chapter 1 - Introduction and conduct of the inquiry (PDF 177KB)
Referral of the inquiry
Terms of reference
Conduct of the inquiry
   Advertisement
   Submissions
   Public hearings
   Confidential material
   Briefings
   Provision of expert legal assistance
Scope of the inquiry
Structure of the report
   Part 1—Introduction
   Part 2—The disciplinary system
   Part 3—The administrative system
   Part 4—Other important matters that relate to Australia's military justice system
Acknowledgments
 
Chapter 2 - Australia's military justice system: an overview (PDF 215KB)
The Structure of the Australian Defence Force
The discipline system
Offences under the Defence Force Discipline Act
Service tribunals
   Courts Martial
   Defence Force Magistrates
   Summary Authorities
Reviews and appeals
Provision of legal assistance
Key military justice appointments and agencies
   The Office of the Inspector-General of the ADF
   The Defence Legal Service
   The Director of Military Prosecutions
   The Registrar of Military Justice
   The Judge Advocate General
   Chief Judge Advocate
   Judge Advocates
   Service Police
Administrative system
Administrative inquiries
   The Routine Inquiry
   Investigating Officer
   Boards of Inquiry
   Combined Boards of Inquiry
   General Courts of Inquiry
   Safeguards and rights
   The role of civilian authorities
Adverse administrative action
Internal review mechanisms
   Redress of Grievance
   Inspector General ADF
External review mechanisms
   Defence Force Ombudsman
   Other processes of review
Relevant Organisations
The Defence Community Organisation
Complaints Resolution Agency
Policy Documents
Defence Force Discipline Act
Defence Regulations
Administrative Inquiries Manual (ADF Publication 06.1.4)
Defence Instructions
 
Chapter 3 - Disciplinary investigations (PDF 275KB)

Reporting and investigation of alleged offences
Shortcomings in the investigation of service offences
Previous inquiries
   The 1998 Commonwealth Ombudsman's 'Own Motion
      Investigation into How the ADF Responds to Allegations
      of Serious Incidents and Offences'
   The 1999 Joint Standing Committee on Foreign Affairs, Defence and
      Trade Report 'Military Justice Procedures in the Australian Defence Force'
   The 2001 Joint Standing Committee on Foreign Affairs Defence and Trade
      report 'Rough Justice? An Investigation into Allegations of Brutality in
      the Army's Parachute Battalion'
   The 2001 'Report of an Inquiry into Military Justice in the Australian
      Defence Force' conducted by Mr J.C.S. Burchett QC
Difficulties highlighted in this inquiry
   Anecdotal evidence
      The East Timor SAS Investigation
      Other anecdotal evidence
   Systemic evidence
      Individual submissions
      The Ernst & Young 'Review of Military Police Battalion
      Investigation Capability'
      The Director of Military Prosecutions
   The policy/procedural framework—manuals and procedures
Solutions offered in evidence
   Suggestions from submissions to this inquiry
   Recommendations from the IGADF-Commissioned report into the SAS Soldier's matter
   Suggestions from Mr Michael Griffin's Issues Paper
   Suggestions from the Ernst & Young Report
   The Canadian Military Police Complaints Commission
   ADF initiated change
      Secret Investigations
      Improving the Serious Crime Investigation capability
      Response to the Ernst & Young Report
   Findings and recommendations

 
Chapter 4 - Decisions to initiate prosecutions and the provision of legal services (PDF 229KB)
Decisions to prosecute
Flawed decisions to prosecute
Findings of previous inquiries
An independent Australian Director of Military Prosecutions?
   The framework
   Assessment of current operation per TOR (3) 
      Case management and workload
      Personnel—permanent legal and administrative staff
      Personnel— the Director of Military Prosecutions
   Findings and Recommendations
Defence Counsel Services
The Canadian Director of Defence Counsel Services
 
Chapter 5 - Disciplinary tribunals (PDF 371KB)
Courts Martial and Defence Force Magistrate Trials
      Submissions
      The High Court's decision in "Re Colonel Aird; Ex parte Alpert"
      Overseas developments
      Canada
      United Kingdom
      United States of America
   Committee view
Tribunals and Appeals – Summary Authorities
Findings and recommendations
 
Chapter 6 - The administrative system—an overview (PDF 215KB)
Avenues for complaint
   Self initiated resolution or alternative dispute resolution
   Making a formal complaint
The importance of reporting wrongdoing
The effectiveness of the current reporting system
   3RAR—reporting of wrongdoing
   School of Infantry, Singleton—reporting of wrongdoing
Conclusion
 
Chapter 7 - The reporting of wrongdoing in the ADF (PDF 261KB)
Reasons for failing to report wrongdoing or failing to make a complaint
   Conflicts of interest in using chain of command
   Culture of silence
   Downplaying or dismissing complaint
   Threats of reprisals or fear of 'getting into trouble'
   Lack of awareness of alternative reporting avenues
   Frustration with administrative complaint handling processes
   Seeking a transfer or discharge as an alternative to reporting wrongdoing
   Committee view
Whistleblowing scheme
   Protection from reprisal
   Confidentiality
   Committee view
Improvements to the ADF's reporting system
Conclusion
Using complaints as signposts to broader problems
 
Chapter 8 - The administrative system—investigations (PDF 380KB)
The inquiry process
Quick assessment
Types of administrative inquiries
   Routine Inquiry
   Officer Investigation
The importance of a well-conducted investigation
The effectiveness and fairness of administrative inquiries
   Procedural fairness—right to know allegations or adverse comment
   Communication and provision of information—complainants
   Confidentiality
   Conflicts of interest and the independence of the inquiry
   Competence of the investigating officer
   Assistance to investigating officers
   Delays
   Reprisals for providing evidence
Conclusion
 
Chapter 9 - Administrative inquiries into sudden death (PDF 203KB)
Communication and provision of information—next of kin
Conflict of interest—the individual and the institution
Competence of inquiries into sudden or accidental deaths and the
   need for experts
The role of the coroner
   Committee view
Procedures following investigation
   Committee view
Inquiries as early detection mechanisms
Conclusion
 
Chapter 10 - Adverse action, appeal processes and external review of administrative procedures (PDF 220KB)
Appeal and review processes
   Notice to show cause
   Redress of Grievance (ROG)
The effectiveness and fairness of the notice to show cause and
   the ROG processes
   Procedural fairness—access to all relevant material and the
      consideration of all the evidence
   Conflicts of interest and the independence of the investigators
      and decision-makers
   Assistance when preparing a complaint
   Competence of investigators
   Delays
Recent initiatives and the role of the Complaints Resolution
   Agency (CRA)
 
Chapter 11 - The IGADF and the Defence Force Ombudsman (PDF 351KB)
Inspector-General of the Australian Defence Force (IGADF)
   The independence of the IGADF
   The accessibility of the IGADF
   Protection of those making submissions to the IGADF
   Delays in processing a grievance
   Early days for the IGADF
   Reporting obligations
   Measures taken to improve the competence of investigating officers
Other external review mechanisms
Defence Force Ombudsman (DFO)
   Independence of the DFO
   Constraints on the DFO
Courts and Commissions
Summary
Looking forward
Proposed new Australian Defence Force Administrative
   Review Board (ADFARB)
 
Chapter 12 - Boards of inquiry (PDF 286KB)
Recent management audit of BOIs
Decision to conduct a BOI
   Committee view
The effectiveness and fairness of BOIs
   Procedural fairness
   Right to legal representation
   Preconceived notions about a BOI
   Communication and the provision of information
   Conflicts of interest and the independence of the inquiry
   The competence and conduct of BOIs
   Access to expert advice
   Delays
   Reprisals or interference with witnesses
Conclusion
   Committee view
 
Chapter 13 - Disciplinary and adverse administrative action (PDF 194KB)
The disciplinary and administrative components of the military
   justice system
Deciding on disciplinary or administrative action
Views on the current relationship between the disciplinary and
   administrative components of the military justice system
   Committee view
Double jeopardy
   Committee view
 
Chapter 14 - Australian Defence Force Cadets (ADFC) (PDF 215KB)
The Australian Defence Force Cadets—structure and organisation
Cadet Sergeant Eleanore Tibble—a case study
   Investigation and handling of initial allegation of fraternisation
   Investigation following the death of CSGT Tibble
   Procedures for dealing with a minor
   Acknowledgement of shortcomings and remedies
   Monitoring of implementation—preventing a recurrence
Resources available to the ADFC
   Future status and administrative arrangements for the ADFC
 
Chapter 15 - Occupational health, safety and support services (PDF 162KB)
Features of military service that impact adversely upon mental health
   The reluctance to report health risks or concerns
   Failure to treat complaints seriously
   Investigation processes as a complicating factor in mental health
   Protracted military justice procedures
Duty of care
Physical safety
Mental health
Managing mental health reporting and service provision
   Reporting mental ill-health
   Providing mental health services
Services to families and support to next of kin
Conclusion
 
Appendix 1 - Public submissions (PDF 115KB)
 
Appendix 2 - Additional information, tabled documents, and answers to questions on notice (PDF 151KB)
Issues paper by Michael Griffin, commissioned by the Senate Foreign Affairs, Defence and Trade References Committee (PDF 9396KB)
Appendix 3 - Public hearings and witnesses (PDF 117KB)

For further information, contact:

Committee Secretary
Senate Standing Committees on Foreign Affairs, Defence and Trade
PO Box 6100
Parliament House
Canberra ACT 2600
Australia

Phone: +61 2 6277 3535
Fax: +61 2 6277 5818
Email: fadt.sen@aph.gov.au

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