Preface
Report into the effectiveness of Australia's
military justice system
On 30 October 2003, the Senate referred the matter of the
effectiveness of Australia's military justice system to the Senate
Foreign Affairs, Defence and Trade References Committee for inquiry and report. The Committee received 71 public submissions, 63
confidential submissions, and many supplementary submissions. It held eleven
public hearings and seven in–camera
hearings.
The evidence before the Committee
ranged across many aspects of the military justice system and covered both
disciplinary and administrative processes. This preface contains a summary of
the key aspects of the report.
Australia's
military justice system
Despite several attempts to reform the military justice system,
Australian Defence Force (ADF) personnel continue to operate under a system
that, for too many, is seemingly incapable of effectively addressing its own
weaknesses. This inquiry has received evidence detailing flawed investigations,
prosecutions, tribunal structures and administrative procedures.
A decade of rolling inquiries has not met with the
broad-based change required to protect the rights of Service personnel. The
committee considers that major change is required to ensure independence and impartiality
in the military justice system and believes it is time to consider another
approach to military justice.
The Disciplinary System
After extensive
consideration and significant evidence, the committee considers that the ADF
has proven itself manifestly incapable of adequately performing its
investigatory function.
Evidence from those
subject to investigation and prosecution under the military justice system,
personnel with decades of experience
in the military police, and the ADF-commissioned Ernst & Young
Report highlight fundamental shortcomings. These include inadequately trained
investigators, equipment shortages, outdated manuals, low morale, inability to
attract and retain high quality personnel, inordinate delays and inadequate
resourcing. Service police members describe an organization in crisis,
complaining of poor morale, being overworked and under-resourced, loss of
confidence, lack of direction and a sense of confusion about their role and
purpose.
The committee considers
that all criminal activity should be referred to civilian authorities for
investigation and prosecution. Outsourcing criminal investigations in peacetime
will allow Service police to concentrate on their key military functions in
support of the forces in the field and focus their resources on training and
developing their core business. On overseas operations, criminal activity
should be investigated by the Australian Federal Police. The military police
should only act where civilian authorities decline to do so. Where this
happens, the committee has commented on the need for a radical improvement to
Service police training and resourcing
The committee has also
examined disciplinary tribunals. Evidence to the committee cast considerable
doubt over the impartiality of current structures, and argued that Service
personnel's rights to access fair and independent tribunals are under threat.
The Special Air Service soldier's case perhaps most comprehensively illustrates
the inherent flaws in both investigation and tribunal processes. His
experiences, however, were echoed by many submitters to this inquiry. It is
apparent that Australia's
disciplinary system is not striking the right balance between the needs of a
functional Defence Force and Service members' rights, to the detriment of both.
It also considers that a
well-resourced, statutorily independent Director of Military Prosecutions is a
vital element of an impartial, rigorous and fair military justice system. Until
the promised legislation is passed, decisions to initiate prosecutions may not
be seen to be impartial, the Director of Military Prosecutions is not
independent and, fundamentally, the discipline system cannot be said to provide
impartial, rigorous and fair outcomes.
The committee considers that establishing an independent
Permanent Military Court, staffed by independently appointed judges possessing
extensive civilian and military experience, would extend and protect a
Service member's inherent rights and freedoms, leading to impartial, rigorous
and fair outcomes.
The committee considers that reform is also needed to impart
greater independence and impartiality into summary proceedings. Summary
proceedings affect the highest proportion of military personnel. The current
system for prosecuting summary offences, however, suffers from a greater lack
of independence than courts martial and Defence Force Magistrate processes. The
committee therefore recommends an expansion of the right to elect trial by
court martial before the permanent military court, and the introduction of the
right to appeal summary decisions before the independent permanent military
court.
The inadequacies of the disciplinary process have important
consequences for the mental health and well-being of service members, their
families and friends. Evidence to the committee illustrates that the stresses placed
on individuals under investigation in many cases appear to have had longer term
effects, including loss of confidence, loss of employment, suicidal thoughts,
attempted and actual suicide. These effects are unacceptable.
The Administrative system
The committee also
identified serious problems with the administrative component of the military
justice system.
Witnesses appearing before
this committee who have been the victims of abuse or are relatives of people
who have suffered ill-treatment recount their unwillingness to report
wrongdoing. In some instances, worried and sometimes frightened parents felt
that they had no other option but to contact the ADF directly about their
concerns of mistreatment. They did not take this step lightly and, in some
instances, even this significant step was still not enough to put a stop to
mistreatment or for the ADF to provide the necessary support for the ADF member
struggling to cope in the military environment. Some of these ADF members
suffered severe psychological breakdowns and in the most extreme cases took
their lives.
The very fact that two young soldiers at Singleton were not
prepared to pursue their right to make a complaint about cruel and abusive treatment,
and that the wrongdoing came to light only through the determined efforts of
their parents, speaks volumes about the inadequacies of the administrative
system. They were not alone in their experiences. This failure to expose such
abuse means the system stumbles at its most elementary stage—the reporting of
wrongdoing.
The committee also found the next stage in the
administrative system—investigations—seriously flawed. There were alarming
lapses in procedural fairness: failure to inform members about allegations made
about them, failure to provide all relevant information supporting an
allegation, and breaches of confidentiality. Indeed, the committee heard
numerous accounts of members suffering unnecessary hardships due to violations
of their fundamental rights.
Poorly trained and on occasion incompetent investigating
officers further undermined the effectiveness of administrative investigations.
The committee found that missing or misplaced documentation, poor record
keeping, the withholding of information, lack of support in processing a
complaint and investigating officers who lack the necessary skills, experience
or training to conduct a competent inquiry, contributed to unnecessary delays
and distress. Many of those subject to allegations have endured long periods of
uncertainty and anxiety.
Conflict of interest and the lack of independence of the
investigator and the decision-maker was one of the most corrosive influences
eroding the principles of natural justice and one of the most commonly cited
concerns. Many witnesses called for an independent adjudicator so that a
neutral and unbiased investigation could take place free from contamination by
self-interest or third party influence.
The appeal and review
processes underpin accountability and are an essential guarantee against
injustice. Yet, evidence clearly showed that the problems evident in
administrative inquiries flow into the review processes—lapses in procedural
fairness, poorly conducted investigations, conflicts of interest and inordinate
delays. In other words, the current review and appeal processes did not remedy
the shortcomings in administrative inquiries but rather perpetuated them.
A number of witnesses to this inquiry attributed the onset
or aggravation of health problems, particularly psychological, to the
difficulties they encountered with the military justice system. Others spoke of a work place where safe and
responsible work practices were not always promoted and which, in some
instances, placed the physical or psychological well-being of ADF personnel at
risk.
The committee has made a
number of recommendations but the key one is designed to establish a
statutorily independent grievance and complaint review body.
This initiative is
intended to remove from the system the main negative factors that presently
undermine its integrity and credibility. It hopes to encourage ADF members to
report wrongdoing or to make a complaint. It will enable those who feel unable
to pursue a matter through the chain of command to seek redress through an
independent and impartial body. Furthermore, this independent review body will
take on the important oversight role to ensure that investigators are better
trained, that inquiries observe the principles of procedural fairness, and that
delays are kept to a minimum. It will be in a better position to take account
of the needs and well-being of those caught up in the military justice system.
Overall, the
recommendations are designed to put in place a justice system that will provide
impartial, rigorous and fair outcomes and one that is transparent and
accountable for all ADF personnel.
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