Chapter 5
Consolidating reforms
5.1
In light of the breadth of reforms that have been implemented over the
past two years, the CDF emphasised the importance of allowing the new
arrangements sufficient time to 'bed down' in order than any glitches could be
identified and remedied. Overall, he was confident that the reforms in train would
result in substantial improvements to the military justice system. In his view,
they would better enable the ADF to achieve the correct balance between
maintaining discipline and safeguarding individual rights.[1]
The IGADF agreed with this assessment. After a recent visit to a number of
overseas defence forces, he concluded that, allowing for the reform program to
mature, the new ADF military justice system 'could quite likely represent best
practice among comparable defence forces'.[2]
5.2
The committee recognises that 'substantial and commendable progress' has
been achieved in improving Australia's military justice system.[3]
But as the implementation period draws to an end, the committee's main concern
is that the reform program retains momentum. In this chapter, the committee
looks at the measures taken to ensure that the gains made to date take hold.
Commitment to military justice system
5.3
Commitment by the government and ADF senior leadership is needed to
ensure that the AMC and the summary trial procedures continue to work well. A
similar commitment is needed to ensure that the Fairness and Resolution Branch
and the Office of the IGADF maintain their key role in keeping the ADF's administrative
system functioning fairly and effectively.
5.4
The CDF's commitment to the reform process has been one the most notable
features throughout the implementation phase. In presenting Defence's first
progress report, the CDF stated:
Together with the Service Chiefs, we are committed to a fair and
just military workplace and are personally driving the required changes. We are
reviewing progress on a monthly basis as a standing item at the beginning of
the COSC (Chiefs of Service Committee).[4]
5.5
On numerous occasions since then, he has re-committed to the reform
process. In his October 2007 report, he indicated that he and the Service
Chiefs would continue to monitor and review progress as a standing item at
their Chiefs of Service Committee until the completion of the implementation of
the reforms.[5]
The Defence Force Ombudsman also commented on the commitment at the senior
levels within the Defence Force to ensure that matters are addressed:
I have had meetings personally with the Chief of the Defence
Force, and it is clear to me that there is a strong personal commitment and
strong personal leadership in ensuring that the problems exposed by the
military justice inquiry and by some of our own investigations have been
accepted and recommendations are implemented, and I have been impressed by the
positive response that I receive. Finally, my experience generally as Ombudsman
is that leadership is particularly important in getting an organisation to
address serious problems of a systemic or cultural nature that are exposed by
investigations.[6]
The committee notes and commends the CDF for his leadership
in driving the reform program.
Adequate resources
5.6
Even so, the committee notes the importance of ensuring that sufficient
resources are available to enable all elements of the military justice system
to function properly. For example, the IGADF anticipated that as the reforms
take effect and the system undergoes further refinement, the availability of appropriate
resources is likely to be a continuing difficulty in some areas.[7]
He observed:
If we are to have an effective, fair and transparent military justice
system to the standard that we all expect and that we all have been working to,
there is a cost attached...As you know, the ADFIS...one of the new initiatives of
the reform program, is up and running but is undermanned, so ways will have to
be found and resources will have to be produced to make sure that it fills its
complement and that its recruiting and retention are up to speed.[8]
5.7
The committee has already noted the concerns raised about the demand for
increased resources with the operation of the AMC, current serious problems in staffing
the ADFIS, and some slowness in appointing officers to the ODMP. In reference
to the COIs, Captain Paul Willee stated that, although the Law Council had no current
concerns about the process, there was the general problem of resources which 'are
very stretched'.[9]
Furthermore, the committee recognises that staffing levels in the Fairness and
Resolution Branch must be maintained at an appropriate level to prevent a
return to the pre-2005 administrative system which was plagued by lengthy
delays in processing complaints and ROGs.
Committee view
5.8
The committee notes that the government's commitment to securing a fair
and effective military justice system must be supported by adequate funding and
appropriate staffing. It believes that a robust reporting regime is required to
keep both the government and the parliament appraised of any shortfalls in
necessary funding or staffing for the elements that compose Australia's
military justice system.
Maintaining the momentum
5.9
Mindful of the long history of repeated failures to secure lasting
effects from reforms to the military justice system, the committee considers that
there is a risk of the recent initiatives likewise failing. In this regard, it
notes that many of the problems identified in the military justice system were
'manifestations of a deeply entrenched culture'. Thus, one of the committee's main
concerns is to prevent the re-emergence of old attitudes and lax practices that
run counter to securing an effective and fair military justice system. Improvements
in process will not of themselves eliminate the underlying culture or deep-seated
attitudes that allowed some of the abuses identified in 2005 to once again take
root. As noted by the CDF:
The wrong sorts of behaviour can be very destructive to an
organisation, but the right sorts of behaviour can be very productive and
constructive. Whilst statements on values are fine in their own right, the real
challenge that any organisation faces is to embed its values and its culture
and to ensure that its values shape the behaviour of its people.[10]
5.10
The committee notes the CDF's commitment to a fair and effective
military justice system. It believes, however, that the system should have
inbuilt safeguards that do not rely on the commitment of any one person or
group to ensure an effective and fair military justice system.
Visibility and scrutiny
5.11
In June 2008, the CDF acknowledged that maintaining the currency and
health of the military justice system would be a vital task not necessarily ending
'once all the agreed recommendations have been finally implemented'. He was
aware that it would be a requirement to monitor continuously the health and effectiveness
of the system and to make changes as needed.[11]
Nonetheless, he was confident that the measures taken in recent years to
increase visibility and central oversight of the military justice system would ensure
that the advances made will not be diminished.[12]
The IGADF shared this view that the military justice system was now
'considerably more transparent' and 'more broadly accountable than it has been
in the past'.[13]
He also argued that there needs to be ongoing scrutiny.[14]
5.12
Clearly, the CDF and the IGADF place a high reliance on visibility and regular
scrutiny of the military justice system to ensure that the gains made in
improving the system will not be lost. The committee now examines the oversight
and monitoring regime in order to determine whether it is sufficiently robust
to prevent any relapses. It considers the ADF discipline system first before
examining the administrative system.
Discipline system
5.13
In large measure, the responsibility for providing the necessary visibility
and oversight rests with the CMJ, the JAG, and the DMP. Their independent and
critical voice is vital to the health of the system. They are well placed to
identify and to issue early warning signals of problems in the discipline system.
In particular, the requirement for the CMJ, the JAG and the DMP to provide an
annual report to the minister for presentation to the parliament is an
important means of upholding the integrity of the ADF's discipline system.
5.14
The committee is confident that the discipline system, with its independent
military court; an independent chief military judge; a statutorily independent
DMP; and a JAG, who is an independent senior civilian judge with oversight
responsibility, provides a sturdy accountability framework. The requirement for
the CMJ, the DMP and the JAG to provide an annual report to the minister for
presentation to the parliament is an important safeguard. There are also a
number of other means to improve the transparency and accountability of the
discipline system.
Military justice reporter
5.15
The committee explored the matter of the AMC having a reporting
mechanism such as 'a military justice reporter'. The Registrar of the AMC
informed the committee that there was no military justice reporter, but that
the establishment of a Defence intranet site was contemplated. This site would
provide notifications of listings of the matters coming up for trial, trial
outcomes and a decisions database that would give the reasons for rulings.[15]
5.16
According to the Registrar such a database would be closed to the wider
public, including the parliament, because of 'privacy concerns'. He explained:
...the Australian Military Court, by virtue of not being a chapter
3 court, is not picked up as a federal court within the terms of that
particular phrase within the Privacy Act. So we do not get the protections of
the Privacy Act in terms of any disclosure of information that a federal court would
normally undertake. That is an issue for us and it is why, in the absence of
any clear legislative authorisation under either the Privacy Act or the DFDA,
it creates difficulties in terms of public disclosure of information. Under the
Defence Force Discipline Act, it is intended that our proceedings are open to
the public and there is another provision that allows a military judge to give
an order for the non-publication of certain parts of proceedings. By
implication one could say that, if you add the two together, you may get an
implied authorisation to publish material from the proceedings of the court.
But we would prefer not to rely upon inferences or the implications that flow
from those provisions and be given quite clear authorisation.[16]
5.17
He also indicated that the service chiefs would 'have to be consulted as
to the wider publication of that as well'. He could not comment on this matter at
the moment but, in his view, the wider reporting on the business of the AMC is 'a
policy issue that will need to be addressed'.[17]
The DMP, however, had a different view about privacy concerns noting that the
proceedings are public and people can attend whether or not the hearing is on
defence land:
In the civil world, of course you can go to any court any
morning and look at the list and see whose names are on it. I think we tend to
get a little bit precious in relation to that. My view is that people will
never know if we do not start to communicate what is happening. Particularly
when it comes to prosecutions, if the concept of general deterrence is not
communicated, if the issues are not out there and if they are not given to the
general community as well as the defence community—bearing in mind that we are
dispersed throughout Australia, overseas and the like—then we are not going to
achieve the aim of general deterrence. So I do not share the view that we have
to have the niceness of a definition of what privacy or a court is. I would
very much like to see us publicly putting the lists in the Army, Air Force and
Navy newspapers as to who is going to trial and I would like us very much to
report what happened to them. I do not think that is a breach of privacy. I
have opponents in relation to that, as you appreciate. In some respects I have
deferred to their concerns. On my website, for instance, having regard to their
concerns, I do not name the people who are convicted, but I give sufficient detail
of the offending and the result.[18]
Committee view
5.18
The committee is strongly of the view that information about the
operation and business of the AMC should be as accessible as possible: that
information about process, procedures and practices be readily and easily
available to the public. If the Registrar's concerns about privacy have
substance, then the committee believes that the government should take whatever
action is required to require the AMC to publish material such as court lists,
transcripts and judgments. The committee understands that some material should
not be published such as material deemed by a military judge to be private.
This confidentiality should be respected. Otherwise, if the AMC is to instil
public confidence in the administration of military justice, it must be
accessible to the public.
5.19
To ensure that information about the AMC is readily available, the committee
recommends that the government make sure that adequate funds are allocated to
assist the AMC establish appropriate mechanisms for disseminating information.
The committee is also of the view that establishing these mechanisms and making
information available should not be left to the discretion of the CMJ but
should be required under legislation.
Recommendation 8
5.20
The committee recommends that the government amend the DFDA to require
the AMC to publish material such as court lists, transcripts of proceedings and
judgments in a readily and easily accessible form.
5.21
On this issue of transparency and accountability of the AMC, the committee
notes that the CMJ declined an invitation to appear before the committee to
give evidence on the operation of the court and related matters. On behalf of
the CMJ, Colonel Cameron, Registrar of the AMC, informed the committee that the
CMJ believed that it would be inappropriate for him, or other military judges,
to appear before the committee.[19]
The CMJ was concerned about maintaining proper independence from the executive
and the legislature. Colonel Cameron also wrote the committee and, in support
of the CMJ's position, cited the Guide to Judicial Conduct (2nd
edition) published for the Council of Chief Justices of Australia by the
Australasian Institute of Judicial Administration Incorporated. He explained
further:
Aside from the issue of maintaining an appropriate distance
between the judiciary and the Executive, the Guide also refers (at paragraph
5.6.1) to '...(the) risk that the judge may express views, or be led in the
course of discussion to express views, that will give rise to issues of bias or
pre-judgement in cases that later come before the judge even in areas
apparently unconnected with the original debate'.[20]
5.22
As noted in Chapter 2, however, the now amended Defence Force
Discipline Act 1982 (DFDA) makes clear that the newly established AMC 'is
not a court for the purposes of Chapter III of the Constitution'. It is 'a
service tribunal'.[21]
The committee is strongly of the view that the CMJ should, when invited by the committee
to give evidence on the operation of the court and matters raised in the AMC's
annual report, accept that invitation.
5.23
The view reflects the Senate's understanding of the requirement for
statutory authorities to be accountable to parliament for their expenditure of
public funds. On a number of occasions the Senate has affirmed the principle
that:
Whilst it may be argued that statutory authorities are not
accountable through the responsible minister of state to Parliament for the
day-to-day operations, they may be called to account by Parliament itself at
any time and that there are no areas of expenditure of public funds where these
corporations have a discretion to withhold details or explanations from
Parliament or its committees unless the Parliament has expressly provided
otherwise...[22]
5.24
Odgers' Australian Senate Practice concludes that officers of
statutory authorities 'so far as the Senate is concerned, are in the same
position as other witnesses, and have no particular immunity in respect of
giving evidence before the Senate and its committees'.[23]
5.25
More importantly, the committee also gave careful consideration to the
relevant paragraphs contained in the Guide to Judicial Conduct (2nd
edition) cited by Colonel Cameron. Paragraph 2.2.1 is concerned with the
principle of the separation of powers, which according to the Guide 'requires
that the judiciary, whether viewed as an entity or in its individual
membership, must be, and be seen to be, independent of the legislative and
executive branches of government'. It states:
The relationship between the judiciary and the other branches
should be one of mutual respect, each recognising the proper role of the others
(see par 5.6). An appropriate distance should be maintained between the
Judiciary and the Executive, bearing in mind the frequency with which the
Executive is a litigant before the courts.
Communication with the other branches of government on behalf of
the judiciary is the responsibility of the head of the jurisdiction or of the
Chief Justice.
It is not uncommon for the executive government, or even
Parliament itself, in matters affecting the administration of justice
generally, to want to use the expertise of judges other than in the exercise of
their judicial duties. The fact that the High Court has recently held the
conferral of certain non-judicial functions on judges to be invalid...does not
necessarily mean that any such request for extra-judicial advice or service
must be refused, but acceptance requires very careful consideration and
appropriate safeguards.[24]
5.26
The committee cannot see anything in this advice that would cause the
CMJ to decline an invitation to appear before the committee to give evidence
about the administration of Australia's military justice system. The committee
notes, however, that the guide suggests that acceptance 'requires careful
consideration and appropriate safeguards' and now turns to this matter.
5.27
Paragraph 5.6.1 of the guide takes the view that appropriate judicial
contribution to public consideration and debate on the administration of
justice and the functioning of the judiciary in the media, at public meetings
and at meetings of a wide range of interest groups is 'desirable'.[25]
It suggests that such involvement 'may contribute to the public’s understanding
of the administration of justice and to public confidence in the judiciary. At
the least, it may help to dispose of misunderstandings, and to correct false
impressions'.[26]
5.28
Nonetheless, it advises that 'considerable care should be exercised to
avoid using the authority and status of the judicial office for purposes for
which they were not conferred'. The guide highlights some points for judges to
bear in mind when considering whether it is appropriate to contribute:
- A judge must avoid involvement in political controversy, unless
the controversy itself directly affects the operation of the courts, the
independence of the judiciary or aspects of the administration of justice;
- The place at which, or the occasion on which, a judge speaks may
cause the public to associate the judge with a particular organisation, group
or cause;
- There is a risk that the judge may express views, or be led in
the course of discussion to express views, that will give rise to issues of
bias or prejudgment in cases that later come before the judge even in areas
apparently unconnected with the original debate;
- A distinction might be drawn between opinions and comments on
matters of law or legal principle, and the expression of opinions or attitudes
about issues or persons or causes that might come before the judge;
- Expressions of views on private occasions must also be considered
carefully as they may lead to the perception of bias;
- Other judges may hold conflicting views, and may wish to respond
accordingly, possibly giving rise to a public conflict between judges which may
bring the judiciary into disrepute or could diminish the authority of a court;
- A judge, subject to the restraints that come with judicial
office, has the same rights as other citizens to participate in public debate;
- A judge who joins in community debate cannot expect the respect
that the judge would receive in court, and cannot expect to join and to leave
the debate on the judge’s terms.
If the matter is one that calls for a response on behalf of the
judiciary of the State, Territory or court collectively, that should come from
the relevant Chief Justice or head of the jurisdiction, or with that person’s
approval. Subject to that, and bearing in mind the points made above, care is
called for before contributing to community debate using the judicial title, or
when it will be known that the contribution is from a judge.[27]
5.29
Again nothing in this guidance suggests that the CMJ, even if he were a
judge of a court properly constituted under Chapter III, should not appear
before a parliamentary committee. To the contrary, the guide clearly
contemplates, and indeed endorses, the contribution of a chief judge to
consideration or public debate that 'would add to the public’s understanding of
the administration of justice and to public confidence in the judiciary'.
Recommendation 9
5.30
The committee recommends that the CMJ appear before the committee to
give evidence on the operation of the AMC and matters raised in the CMJ's
annual report when invited by the committee to do so. The CMJ has a vital role,
through his or her appearance before the committee, to contribute to the public
understanding of the administration of military justice and to build public
confidence in the system.
5.31
Aside from the failure of the CMJ to appear before the committee when
invited, the committee's main concern, with regard to scrutiny and
accountability of the discipline system, is with the future role of the JAG.
Judge Advocate General
5.32
In reviewing the former JAG's 2005 annual report, the committee
considered that the JAG's report was an invaluable tool for providing
independent and expert systemic insight into the operation of the military
justice system. It believed that the JAG's statutory independence provided an
effective mechanism necessary to identify concerns with the Defence Force discipline
system. The committee cited his report as an example of how independence and
impartiality in the reporting regime can improve the overall function and
accountability of the military justice system. The committee welcomed and supported
the JAG's proactive stance in using his annual report to identify problems in
the military justice system; suggest improvements to the system; and provide
public information regarding the operation of particular aspects of the
military justice system. The former JAG's 2006 annual report and the current
JAG's 2007 annual report similarly demonstrate the value of having a strong
independent civilian judicial oversight of the operation of the DFDA and
related legislation.
5.33
The creation of the AMC has meant, however, that many of the former
functions of the JAG are now performed by the CMJ.
Future of the JAG
5.34
Consistent with the views of his predecessor, the current JAG, Major
General Richard Tracey, strongly supported the retention of the office as an
important means for achieving 'a just and transparent military justice system'.
He traced the history of the office of the Judge Advocate General noting its
evolution over time to 'reflect changes in the military discipline system'. He
was of the view that the JAG could have a continuing important role especially through
the JAG's annual reports to parliament which 'provide an independent judicial
insight into military discipline within the ADF'.[28]
5.35
Both the CMJ and the DMP are permanent military officers, while the JAG
is a senior civilian judicial officer. In contrast to the reports of the CMJ
and the DMP on particular aspects of the discipline system, the JAG’s report
provides oversight and assessment of the operation of the military discipline
system as a whole and any related legislation within the reporting year. The
JAG is also well placed to make comparisons between the ADF military discipline
system and any relevant developments in military discipline overseas.[29]
5.36
The JAG noted that his role need not be limited to a reporting function.
He suggested that the experienced senior civilian judicial standing and
independence of the JAG could be used to enhance the fairness, quality,
efficiency and effectiveness of the Australian military discipline system into
the future. For example, the JAG could:
- play a role in ensuring the quality of appointees to the
positions of CMJ, military judges, the DMP and the Registrar of the AMC; and
- be available to the CDF as a sounding board, a source of advice
about military discipline issues and, in particular, to be able to advise the CDF
about developments in the civilian system that may have implications for the
military justice system or could highlight problems.[30]
5.37
In his view, an advisory role need not compromise the independent
oversight role of the JAG. He explained:
It depends what sort of advice. Certainly, the CDF gets his
day-to-day legal advice from the department, and I would not envisage that the
Judge Advocate General would intrude on that at all. But it may be that issues
of policy arise where he is presented with competing views as to how he might
deal with a particular situation and he might feel he needs a sounding board. I
do not think this is the sort of thing that could be legislated for. I simply
think that, if the office is there, then the option is available to the Chief
of the Defence Force if he needs it at any point.[31]
5.38
He was of the view that legislation could be 'cast with sufficient
generality to provide the legal foundation for the office to so act without in
any way encumbering the CDF’s discretion as to whether he seeks advice or
whether he does not'.[32]
5.39
The CDF recognised that the JAG has been a very important part of Australia's
military justice system but noted that it was time to consider the role and
function of the JAG under the new system. He advised the committee that he
would like the review team of Sir Laurence Street and Air Marshal Fisher to
look at how the JAG could be used in the future—'if indeed we need a JAG in the
future'.[33]
Committee view
5.40
For a number of years, the committee has commended the JAG's annual report
as an important means of providing the necessary judicial oversight of the
DFDA. With the creation of the AMC and the appointment of a CMJ, the committee urges
the government to ensure that the level of independent civilian oversight of Australia's
military justice system continues. It is of the opinion that the JAG has a
vital and valuable role to play in providing this oversight and that this
critical oversight work continue. Nevertheless, the committee supports the CDF's
proposal to refer the matter of the JAG to the newly created review team.
Funding arrangements for the Office
of the JAG
5.41
The JAG noted that if the office were to be retained then it would need
to be separate from the Military Court to avoid a perception of influence. He
indicated that his office would 'probably need to be established within another
part of the Defence Force—one possibility is the office of the Vice Chief of
the Defence Force'. The JAG also suggested that his office should be staffed by
at least one senior officer who would be in a position to do the day-to-day
work necessary 'to collate all the relevant material and keep me briefed about
developments within the Defence Force so that I can make judgements and prepare
the annual report'.[34]
Committee view
5.42
The committee notes the JAG's concern regarding staff and sources of funding
for his office. The committee believes that in consultation with the JAG, the
government should address his concerns. In considering the role and function of
the JAG, the review team should also consider these matters.
Administrative system
5.43
Unfortunately, the same level of independent scrutiny of the discipline
system does not apply to the administrative system. In this regard, the Defence
Force Ombudsman reports annually on Defence matters submitted to him. The committee
believes, however, that while it supports the continuation of the Ombudsman's
reporting obligations, the Office of the Defence Force Ombudsman is not
sufficiently immediate to the administrative system to provide the appropriate
level of monitoring, analysis and review. The IGADF is ideally placed to fill
this role.
Inspector General Australian Defence Force
5.44
The IGADF became a statutory officer under the Defence Act in December
2005. Having regard to recommendations made by the CDF, the Minister by written
instrument appoints the IGADF for a period that must not exceed five years. The
appointment is renewable.[35]
The IGADF monitors the implementation progress of the reforms to Australia's
military justice system.[36]
He provides independent internal oversight of, and audits, the military justice
system. The functions of the IGADF are:
- to inquire into or investigate matters concerning the military
justice system;
- to conduct performance reviews of the military justice system;
- to advise on matters concerning the military justice system; and
- to promote military justice values across the Defence Force.[37]
5.45
According to the IGADF, the inquiry and audit activities of his office
provide 'better oversight about what is happening in the system than ever
before'. He noted that previously there was 'little central visibility,
oversight or analysis of the system as a whole on any routine basis'.[38]
He informed the committee:
While many of the recent reforms to the military justice system,
such as the establishment of the permanent Military Court and the new joint
investigative service, are relatively visible high-profile initiatives, other
important, if less obvious, systemic changes are also being made. These are
changes which should materially help to improve the quality of the military
justice system by enabling a more constant and consistent surveillance of its components
so that flaws in potential areas for reform can be identified and rectified
more easily. For example, we now have in place far more effective recording
systems for disciplinary and adverse administrative action and for tracking
administrative inquiries and the implementation of recommendations arising from
them.[39]
5.46
In its first progress report dated August 2006, the committee commended
the work of the IGADF. It noted that his office bears a heavy responsibility
for ensuring that many of the reforms then being implemented would 'in fact
result in an effective and fair military justice system'.[40]
The committee was firmly of the view that his success would in large measure
depend on winning the trust and confidence of ADF members and of being seen as
independent from the military chain of command.[41]
5.47
This responsibility is more apparent with the completion of the reform
implementation phase. The IGADF told the committee that he has a 'broad
oversight role of the ADF military justice system and, since the closure of the
Military Justice Implementation Team, a monitoring role now attaches to the
IGADF in relation to the implementation of those reforms'. He explained his office's
role in monitoring the daily operation of the military justice system including
through an audit program, which, in his view, is 'proving very successful':
We have audited something like 167 of the 500 or so units in the
ADF. They have not all passed, by the way—a small number have not. But...the
availability of the reporting systems, plus the scrutiny afforded by my office
on a routine basis together with the periodic checking and validation of these
processes by external teams means that it is not an entirely internal matter. [42]
5.48
The IGADF also informed the committee that the case management system
for recording police investigations had been upgraded and a new system for monitoring
complaint handling was under development. He explained:
The information collected, together with other proactive
actions, such as the rolling unit Military Justice Audit Program conducted by
my office, will allow the health and effectiveness of the ADF military justice
system to be continuously monitored to an extent that was not previously
possible. In this respect, I might also mention in passing the interesting
development of an entirely new system for the analysis of military justice data
being undertaken now, with the help of some quite clever consultants, by the
Performance Management Section of my office. It is still in its pilot stage
but, if it works as planned, it will break some new ground in the always
difficult area of assessment of health and effectiveness of military justice
systems.
I am very hopeful that the visibility of military justice issues
afforded by the new reporting systems, the ongoing scrutiny of the system
through the enquiry and audit processes or activities of the office of the IGADF,
together with the periodic checking and validation of these processes by
external teams, such as that now being undertaken by Sir Laurence Street and
Air Marshal Fisher, will enable necessary reforms to the military justice
system to be identified more quickly and made more systematically in a way that
can, where necessary, better respond to changes in the law and community
expectations as they happen.[43]
5.49
The committee, and indeed the parliament, will depend on the IGADF's frank
and honest reporting to keep it informed about the timeliness of investigations
or the processing of complaints, standards of investigations, staffing
requirements and shortfalls in the ADFIS, the Fairness and Resolution Branch
and the OIGADF and any other relevant section. It will look to the IGADF to
identify emerging patterns of unacceptable behaviour or failings within the
military justice system. It is for this reason that the committee once again
urges the government to strengthen the independence of the IGADF, for example,
by placing the office under the same reporting regime as the CMJ and the DMP.
Reporting regime
5.50
The committee notes that the IGADF is a statutory appointment but,
unlike the CMJ, JAG and DMP, is not required to report separately to parliament.
Under section 110R of the Defence Act 1903, the IGADF 'must prepare and
give to the Chief of the Defence Force such reports on the operations of the Inspector-General
ADF as the Chief of the Defence Force directs'.
5.51
Furthermore, the Defence Act 2003 makes clear that the IGADF is
to provide the CDF with:
- a mechanism for internal audit and review of the military justice
system independent of the ordinary chain of command; and
- an avenue by which failures and flaws in the military justice
system can be exposed and examined so that the cause of any injustice (whether
systemic or otherwise) may be remedied.[44]
5.52
The only interpretation that the committee can place on this provision
coupled with the IGADF's reporting obligations is that the independence of the
IGADF is curtailed. While the IGADF is to provide the CDF with a mechanism for
internal audit and review independent of the ordinary chain of command, his
reporting obligations are nonetheless confined within the chain of command.
Clearly, the intention of the legislation is to make the IGADF a key advisor to
the CDF without any obligations to make public or inform the parliament about his
findings or any recommendations on the military justice system.
5.53
In its 2005 report, the committee argued that a reporting regime that is
transparent and promotes accountability would greatly improve the perceived
independence of the Office of the IGADF. It noted, however, that there does not
appear to be any adequate avenue for the IGADF to air his or her concerns about
the military justice system to any authority other than the CDF. It appeared to
the committee that this constraint was a sound reason for providing the IGADF
with effective reporting procedures.[45]
5.54
At that time, the committee also argued that adequate measures should be
in place that would hold the CDF publicly accountable should he or she fail to
act in part or in full on a recommendation by the IGADF.[46]
It suggested that there should be a requirement for the CDF to provide written
explanations to the IGADF for rejecting recommendations that would enable the
IGADF to comment on any concerns related to such matters and which would be
recorded, for example, in the Annual Report.[47]
5.55
When asked about having the legislative independence to report through
an annual report to parliament through the minister, similar to CMJ, JAG, and
DMP, the IGADF responded:
...the IG ADF was a creature envisioned and created, I think
legislatively, to help the CDF. So, unlike the DMP and the AMC, my reporting
function is to the CDF. I provide him with a comprehensive annual report each
year, extracts of which are published in the Defence annual report. But the
difference is, I suppose, that I do not report directly.[48]
5.56
Again this statement highlights the inconsistency in the legislative
approach taken for the IGADF and that for the CMJ and the DMP. Unlike the CMJ
and the DMP, the IGADF is too closely associated with the chain of command to
be seen to provide independent oversight of the military justice system.
5.57
If the IGADF is to earn the trust of members of the ADF and more broadly
of the Australian community, he or she must be independent and impartial, and
be seen to be so. The independence and impartiality of the IGADF is also
paramount if the office is to function as a credible and effective oversight
body, able to investigate and report findings free from the limitations imposed
by the chain of command. Furthermore, there must be legislative mechanisms that
would allow the IGADF to carry out this oversight function effectively. The committee
cannot be satisfied, and is not satisfied, that the IGADF's disclosure regime
and level of independence is appropriate. The committee believes that the IGADF
needs legislative provisions that protect the integrity of the office similar
to those for the CMJ and DMP.
Committee view
5.58
The IGADF monitors Australia's military justice system and has oversight
of the completion of outstanding implementation actions.[49]
The committee believes that the administrative system needs to be independently
and critically monitored and any failings identified early and drawn to the
minister's and the parliament's attention. The committee recognises that the
IGADF should fill this role but believes that the independence and impartiality
of this office needs to be strengthened. The committee recognises that at this
stage there is strong justification for further legislative change to enhance
the independence of the IGADF which, in the committee's view, needs to be
addressed as a matter of priority. The committee suggests the IGADF be required
to present an annual report to the minister for tabling in parliament according
to the same reporting obligations that apply to the CMJ and DMP. It would allow
the IGADF the opportunity to make objective and frank assessments of the health
of Australia's military justice system.
Recommendation 10
5.59
The committee recommends that the Defence Act 1903 be amended to
include in section 110 the requirement for the IGADF, as soon as practicable
after each 31 December, to prepare and give to the Minister, for presentation
to the Parliament a report relating to the functions of his office as set out
in section 110C(1).
5.60
This recommendation is a necessary first step in restoring credibility
to the office of the IGADF when it comes to his independence and function as an
effective oversight authority. Other measures should also be considered using
the provisions that apply to the CMJ and DMP as a model.
Recommendation 11
5.61
The committee recommends that the government consider additional
measures to strengthen the independence of the IGADF using the provisions
governing the CMJ and the DMP as a template.
5.62
COIs now form an important part of the ADF administrative system. They
inquire into serious and complex matters, often where the death of an ADF
member is involved. In some cases they inquire into highly technical matters
that may have severe political implications. Public expectations of such
inquiries are generally high and next of kin look to such an inquiry to answer
questions that sometimes cannot be answered. As noted in the previous chapter,
the committee would like to see the regulations governing the operation of the
commissions changed to provide greater transparency such as the presumption
that commissions would be conducted in public. Furthermore, where proceedings
are to be private, the committee suggests that the regulations require the
president to make a statement outlining the reasons for this decision. These
measures would improve the transparency of the investigation and help instil
public confidence in the integrity of the process.
Recommendation 12
5.63
The committee recommends that the regulations governing the
establishment of COIs be amended requiring COIs to be conducted in public
except in circumstances where the president deems there to be a compelling
reason for privacy. In cases where the president makes such a decision, the
regulations should require the president to issue a public statement containing
the reasons for this decision.
Implementation of reforms
5.64
As noted earlier, Former Chief Justice of New South Wales, Sir Laurence
Street, and a former Chief of the Air Force, Air Marshal Les Fisher (Retd) have
been appointed to assess the effectiveness of the current reform program. They
are to report to the CDF by 10 February 2009. The CDF has asked this review
team 'to report on whether the many reforms to the military justice system are
appropriate and effective and to identify whether any further enhancements are
required'.[50]
5.65
The committee welcomes the establishment of this review team. There are
a number of matters that the committee would like to draw to the attention of
this team. Some concerns go back to the committee's initial 2005 report and, although
discussed since then at public hearings, the committee remains uncertain as to
whether reforms have adequately addressed these matters.
Chain of command influence
5.66
One of the strongest messages coming out of the committee's 2005 report was
the actual or perceived chain of command influence in investigations. The committee
has discussed the COIs and the ADFIS. It has not discussed in detail the
routine investigations undertaken under the administrative system.
5.67
In 2005, the committee recommended a number of changes to the Defence
(Inquiry) Manual which have in large measure been made. These included measures
to enhance the transparency, accountability and impartiality of administrative
inquiries by requiring an investigating officer to produce a written statement
of independence before commencing an investigation. The committee suggests that
the review team consider the effectiveness of these amendments to the Administrative
Inquiries Manual and whether they are sufficiently binding on investigating
officers to ensure impartiality and prevent undue command influence.[51]
5.68
The committee suggests that the review team also look at the changes
that have been made to the Administrative Inquiries Manual to assess
whether they could be strengthened for example by promulgating them as
regulations. While inadequate or unclear guidance in the ADF's investigation
manuals was of concern in 2005, the committee was also concerned about the lack
of compliance with such guidelines. The committee suggests that the review team
consider whether there are provisions in the administrative inquiries rules and
regulations to ensure an appropriate level of compliance.
Tracking system
5.69
Defence's annual report contains statistics for the year on:
unacceptable behaviour complaints in the ADF (653); claims for detriment caused
by defective administration (CDDA) (40); redress of grievance (265);
submissions to the IGADF (45); and whistleblower reports (168). The Defence
Force Ombudsman also received 252 approaches from members of the ADF.
5.70
An important aspect of effective monitoring involves the implementation
of recommendations coming out of investigations. The committee's 2005 inquiry
found a failing in the system whereby in some cases recommendations 'appear
never to have been considered by anyone with appropriate authority'.[52]
The committee is strongly of the view that the ADF's monitoring system must
also include an assessment of any follow-up action required by an
investigation. The committee suggests that the review team investigate the
effectiveness of the tracking system that the ADF uses to monitor the progress
of complaints.
Claims for detriment caused by
defective administration scheme (CDDA)
5.71
Defence's annual report stated that although the CDDA scheme had not
been developed specifically to deal with ADF personnel disputes, it is a means
by which ADF members can seek compensation, whether or not their redress of
grievance has been upheld. It stated further:
The restrictive criteria that apply under the scheme mean that
compensation cannot be awarded in many instances, although the person may have
grounds for complaint.[53]
5.72
The annual report states further that:
While the CDDA scheme may be available to pay compensation where
the redress of grievance has been upheld in full or in part, it is not an
appropriate avenue through which to reopen matters where the member remains
dissatisfied with the outcome of the grievance process.[54]
5.73
The committee has received correspondence from some ADF members dissatisfied
with the administration of this scheme. It believes that this aspect of the
ADF's administrative system warrants consideration by the review team.
Defence Force Discipline Act 1982 (DFDA)
5.74
The Report of an Audit of the Australian Defence Force Investigative
Capability found there was a common view among ADF members that the Defence
Force Disciplinary Act (DFDA) had 'simply had its day'. They describe the
document as 'outdated and anachronistic' and suggested that it 'does not match
modern disciplinary, legal and policing requirements'.[55]
The audit noted that the DFDA had not undergone a fundamental review for over a
quarter of a century.
5.75
The call for a review of the DFDA, however, is not new. The audit
finding that the DFDA needed to be updated is consistent with those of previous
reports dating back to the 1989 Report of the Defence Force Discipline
Legislation Board Review. It noted the importance of ensuring that the DFDA was
in line with comparable and more modern legislation in relation to 'the need to
extend the proscription of evolving classes of illicit drugs which are now
widely available and used in society and from which the ADF is unlikely to be
immune'.[56]
5.76
The 2001 Report of an Inquiry into Military Justice in the Australian
Defence Force (the Burchett Report) also noted the need to update the DFDA.
This review recommended, inter alia, that consideration be given to
reviewing the nature of the punishments that may be imposed under the DFDA in
the light of contemporary standards.[57]
The committee's 2005 report on Australia's military justice system was
particularly concerned about the grey areas that had developed between the
disciplinary and administration systems. It concluded that:
...it appears that a review of the
penalties imposed under the military justice system is long overdue. The time
for review is also fortuitous in that a significant body of work has recently
been done by the Australian Law Reform Commission on criminal, civil and
administrative procedures and penalties.[58]
5.77
It recommended that, building on the report by the Australian Law Reform
Commission, Principled Regulation: Federal Civil and Administrative
Penalties in Federal Jurisdiction, the ADF commission a similar review of
its disciplinary and administrative systems. It recommended further that this review
of the offences and penalties under the Australian military justice system also
include in that review the matter of double jeopardy. In its response to this
proposal, the government recorded its intention to 'continue a more detailed
review'.
5.78
Since its 2005 report, the committee recognises that a number of major
pieces of legislation and other reforms to Australia's military justice system
have been implemented. In response to a question on notice regarding the DFDA,
the Department of Defence stated in 2007:
The discipline system is continuously reviewed and reformed by
Defence. Changes recently implemented and those under consideration will, when
completed, represent a comprehensive revision of the DFDA. Since the
commencement of the DFDA, it has been substantially amended, including:
- the establishment of the
Discipline Officer scheme for dealing with minor disciplinary infringements
(DFDA, Part IXA Special Procedures Relating to Certain Minor Disciplinary
Infringements);
- amendments to DFDA Part VI Investigation
of Service Offences, including amendments to the requirement to caution persons
and access to legal practitioners, tape recording of confessions and admissions
and the requirements for medical examination or the taking of a specimen for
the purpose of obtaining evidence; and
- the creation of new offences;
- the extension of the limitation
period on certain charges from 3 to 5 years; and
- the application of the Criminal
Code to the DFDA.[59]
5.79
The committee is not satisfied, however, that a review taking account of
both the discipline and administrative system as a whole has taken place. In
other words, while it believes that the reforms have been significant, they
have focused on particular aspects of the DFDA or the administrative system. In
light of the findings of the inquiries referred to above, the committee suggests
that the review team look at the DFDA and the administrative system.[60]
This review could consider, for example, the class of offences set out in the DFDA
and their punishments and the provisions governing people found unfit to stand
trail or not guilty of an offence on the grounds of mental impairment.
Other matters
5.80
The CDF and the IGADF have noted the importance of allowing sufficient
time for the reforms to 'bed down'. The committee agrees that as the
implementation phase moves forwarded teething problems may emerge. Indeed, the
CMJ and the JAG have drawn attention in their annual reports and during the committee's
recent public hearing to certain matters such as refinements to recent legislation
which they believe are required. For example, in his annual report, the JAG
raised concerns about the restriction placed on the automatic right to elect
trial by the AMC by the creation of a class of 'non-elective' offences.[61]
and 'the practicality and utility of the internal review process which the Defence
Legislation Amendment Act 2008 retained in conjunction with the appeals to
the AMC.[62]
5.81
The Law Council has also identified some concerns, notably the right of
the DMP to appeal interlocutory points and its continuing concerns about the
simplified rules of evidence for summary proceedings. The committee suggests
that the review team look at these matters.
Consultation
5.82
In its consideration of the Defence Legislation Amendment Bill 2006, the
committee held serious misgivings about a number of provisions in the proposed
legislation. It identified 11 areas that it believed required close attention. In
its report, the committee made plain that the government needed to reconsider
the proposed legislation. It stated:
Before preparing the final draft of the bill, the committee
believes that a thorough consultation process needs to be undertaken on the
proposed changes to the military tribunals. Open and frank debate is vital to
the success of such reforms.[63]
5.83
The amended bill was introduced into parliament without a comprehensive
process of consultation. Moreover, the same approach was evident in preparing the
Defence Legislation Amendment Bill 2007. In this case the committee found:
...although Defence consulted with people such as the Judge
Advocate General, the Inspector General-ADF and the Director General of
Military Prosecutions, and government agencies including the Solicitor General,
it did not consult with external bodies such as the Law Council of Australia.[64]
5.84
In her annual report, the DMP commented on the drafting arrangements for
the Defence Legislation Amendment Bill 2006 and the Defence Legislation
Amendment Bill 2007. She wrote:
I was concerned, however, that such consultation often occurred
late in the drafting process. Equally, greater opportunities and more time to
comment on the initial drafting instructions may have saved significant time
and effort.[65]
5.85
In 2006 and again in 2007, the committee made clear its intention when
it recommended that the government undertake a comprehensive consultation
process on any future proposed legislation that would make significant changes
to Australia's military justice system. It cited in particular the importance
of consulting with the Law Council of Australia. This recommendation has been
disregarded. For example, with regard to DLAB 2008, the DMP was of the view
that there were some fundamental difficulties with the proposed legislation,
particularly with the different classes of offences. She explained:
I was getting the impression that there was a real
misunderstanding about how fundamental it was that we could have disparate
elections; that we could have co-accused going all over the place; that I could
have this and I could have that. So we actually met with the parliamentary
draftspeople to explain just what we perceived as our difficulty. I think that
that was a remarkably helpful afternoon. They understood, I think, for the
first time just how fundamental and necessary it was that the DLAB be amended—as
it was very late in the piece—to incorporate these changes.[66]
5.86
Captain Paul Willee, from the Military Justice Group, Law Council of
Australia, was highly critical of the approach taken by the Department of
Defence to consultation on important military justice matters:
My concern is that in some senses it would have been better if
we had gone with the old adage, ‘More haste, less speed.’ When these deadlines
are so tight, they almost invite error. Perhaps it is time to move towards more
acceptable deadlines so that the situation that happened with the legislation
being passed on the last occasion...does not happen again. We could not address
it beforehand because we did not know about it until the day it came forward.[67]
5.87
He explained further:
...we are unable to be an effective contradictor, unless we have
some timely indication of what is going to be brought before the committee. As
far as I know, we are the only civilian—external, fully non-dependent or
obliged to the military for anything—carrying out this role...
We do not seek to impose upon the military a full consultation
process. We understand perfectly the speed and compass which they have covered
and we admire them for it. But it is not beyond the wit of a competent administrator
to organise a situation where, if you have got timelines you put one that says,
‘Please send a draft copy to the Law Council of Australia’ so they at least
have 24 hours notice of what it is that is going to be covered—48 would be
better because we could then address it with some sensibility.[68]
In defence of the ADF's consultation process, the CDF noted:
Our people have been working flat strap for two years on the
reform of the military justice system. Just about everything we have done has
been done to very tight deadlines. We want to consult with as many people as
possible but, at the end of the day, you cannot consult until you have got
something to consult with.[69]
5.88
He acknowledged that 'because of that workload, 'the consultative
process may be a little later than would be ideal'.[70]
Mr Cunliffe, Head Defence Legal, stated:
I can assure you that, in relation to legislation that was
affecting the DMP or relating to the DMP, we would consult. On several policy
proposals that step has already been taken internally before we get to the
drafting. The drafting, at least for internal consultation, is arguably a bit
too late. It is at the policy development stage that the first step requires
that because bad policy is what leads to bad drafting by and large. The
drafters do a good job.[71]
Committee view
5.89
This report is the fifth in a series of reviews of Australia's military
justice system. It reinforces its recommendation from previous reports that the
government undertake a comprehensive consultation process on any future
proposed legislation that is intended to make significant changes to Australia's
military justice system. Indeed, the committee is most concerned about
Defence's failure to consult with external and independent experts when
considering reforms. This attitude indicates that Defence is not only reluctant
to be open and receptive to constructive criticism and new ideas but does not
appreciate that wider consultation produces better legislation and ultimately a
more effective military justice system. The committee cites in particular the
importance of consulting with the Law Council of Australia. It notes that this
approach should also apply to any significant changes to subordinate
legislation.
5.90
In light of the repeated failures of Defence to consult widely before
preparing legislation and the subsequent need for amendments, the committee
believes that a consultation process needs to be formalised. It suggests that Sir
Laurence Street's review team assess the effectiveness of the processes
employed by Defence when preparing legislation for presentation to parliament
and make suggestions on how it could be improved. It also suggests that the
government consider creating a legislative requirement for Defence to consult
widely with experts in military law such as the Law Council or for the Minister
to issue a directive requiring an adequate consultation process during the
drafting phase of legislation. To underline the importance of wide consultation
the committee repeats it recommendation contained in two previous reports but
apparently ignored.[72]
Recommendation 13
5.91
The committee recommends that the government undertake a comprehensive
consultation process on any future proposed legislation, including subordinate
legislation, that is intended to make significant changes to Australia's
military justice system. The committee cites in particular the importance of
consulting with the Law Council of Australia.
Navigation: Previous Page | Contents | Next Page