Committee's recommendations
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Government response
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Recommendation
1
3.119 The committee
recommends that all suspected criminal activity in Australia be
referred to the appropriate State/Territory civilian police for investigation
and prosecution before the civilian courts.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation
2
3.121 The
committee recommends that the investigation of all suspected criminal
activity committed outside Australia
be conducted by the Australian Federal Police.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation
3
3.124 The
committee recommends that Service police should only investigate a suspected
offence in the first instance where there is no equivalent offence in the
civilian criminal law.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation
4
3.125 The
committee recommends that, where the civilian police do not pursue a matter,
current arrangements for referral back to the service police should be
retained. The service police should only pursue a matter where proceedings
under the DFDA can reasonably be regarded as substantially serving the
purpose of maintaining or enforcing service discipline.
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Government Response: Agreed in part
The Government agrees in
part, noting that the ADF makes an initial determination on whether offences
of a suspected criminal nature should be retained for investigation and
prosecution. This determination is based on an assessment of whether dealing
with the matter under the DFDA can be reasonably regarded as substantially
serving the purpose of maintaining and enforcing Service discipline. Where
civilian police do not pursue a matter and it can be regarded as
substantially serving the purpose of maintaining and enforcing Service
discipline, then the matter may be dealt with under the DFDA. Defence will
work to improve the management and effectiveness of the relationship between
the military and civilian authorities on referral issues. This will include
reviewing and clarifying the guidelines and examining the need for, and
implementing as necessary, formal arrangements with the states and
territories for referral of offences. Defence also intends to establish a
common database for tracking referrals.
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Recommendation
5
3.130 The
committee recommends that the ADF increase the capacity of the Service police
to perform their investigative function by:
-
Fully
implementing the recommendations contained in the Ernst & Young Report;
-
Encouraging
military personnel secondments and exchanges with civilian police
authorities;
-
Undertaking a
reserve recruitment drive to attract civilian police into the Defence Forces;
-
Increasing
participation in civilian investigative training courses; and
-
Designing
clearer career paths and development goals for military police personnel
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Government Response: Agreed in part
The Government agrees this
recommendation with one exception. The Ernst and Young Report was a review of the Army police
investigation service and did not address the Navy and Air Force police
investigation services. Army accepted 53 of the 55 of Ernst and
Young recommendations. Two were not accepted on the basis that they appeared
to infringe on the individual rights of ADF members. Work to implement the 53
agreed recommendations commenced in August 2004, and is progressing well. 33
recommendations, including the two that are not accepted, are complete,
including establishment of the Provost Marshal - Army in January 2005. 22
recommendations are pending additional work which is being progressed by
Army.
Some of the recommendations
are specific to the Army and not directly relevant to the Navy and Air Force.
The Government agrees that all Service police will act upon accepted
recommendations of the Ernst and Young Report, as appropriate to each Service.
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Recommendation
6
3.134 The
committee recommends that the ADF conduct a tri-service audit of current
military police staffing, equipment, training and resources to determine the
current capacity of the criminal investigations services. This audit should
be conducted in conjunction with a scoping exercise to examine the benefit of
creating a tri-service criminal investigation unit.
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Agreed
The Government will conduct a
tri-service audit of Service police to establish the best means for
developing investigative capability. Defence acknowledges that the current
military police investigation capability has significant shortcomings and is
inadequate for dealing with more serious offences that are not referred to
civilian authorities. As identified by the Senate Committee, Defence has
begun to rectify shortfalls as part of the implementation of agreed
recommendations from the recent Ernst and Young review into Army military police,
including the establishment of the Provost Marshal
-
Army. Navy and Air Force have
completed or are conducting similar reviews to build on the outcomes of the Ernst and
Young review. The recommended audit will bring together this work and
establish the best way to develop the investigative capability of all Service
police.
To supplement this, Defence
will establish a joint ADF investigation unit to deal with more serious
disciplinary and criminal investigations. The ADF began work to form a
Serious Crime Investigation Unit in February 2004. Establishment of the unit
has been in abeyance pending the outcomes of this Review. In-principle agreement
has been reached with the AFP for a senior AFP officer to be seconded to mentor and provide
oversight of this team, and implementation will now proceed. The unit will be
headed by a new ADF Provost Marshal outside single Service chains of command.
Service police may be supplemented by civilian investigators. The unit will
deliver central oversight and control of ADF investigations and develop
common professional standards through improved and consistent training.
Greater numbers of more skilled investigators will be available to
investigate complex and serious issues in operational environments and
contingencies inside and outside Australia.
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Recommendation
7
4.44 The
committee recommends that all decisions to initiate prosecutions for civilian
equivalent and Jervis Bay Territory offences should be referred to
civilian prosecuting authorities.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation
8
4.45 The
committee recommends that the Director of Military Prosecutions should only
initiate a prosecution in the first instance where there is no equivalent or
relevant offence in the civilian criminal law. Where a case is referred to
the Director of Military Prosecutions, an explanatory statement should be
provided explaining the disciplinary purpose served by pursuing the charge.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation
9
4.46 The
committee recommends that the Director of Military Prosecutions should only
initiate prosecutions for other offences where the civilian prosecuting
authorities do not pursue a matter. The Director of Military Prosecutions
should only pursue a matter where proceedings under the DFDA can reasonably
be regarded as substantially serving the purpose of maintaining or enforcing
Service discipline.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation
10
4.47 The
committee recommends that the Government legislate as soon as possible to
create the statutorily independent Office of Director of Military
Prosecutions.
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Government Response:
Agreed
The Government agrees,
noting that action has already commenced to establish the Director of
Military Prosecutions as a statutory position. The statutory appointment will
allow the Director of Military Prosecutions to operate independently and free
from perceptions of command influence. It will also promote confidence among
ADF members in the independence and impartiality of the appointment and in
the functions of the Office.
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Recommendation
11
4.48 The
committee recommends that the ADF conduct a review of the resources assigned
to the Office of the Director of Military Prosecutions to ensure it can
fulfil its advice and advocacy functions and activities.
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Government Response: Agreed
The Government agrees. The
Office of Director of Military Prosecutions was established on an interim
basis in July 2003; it is timely to review the Office to ensure that it has
sufficient resources to meet current and future work loads and is able to
respond to operational requirements.
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Recommendation
12
4.49 The
committee recommends that the ADF review the training requirements for the
Permanent Legal Officers assigned to the Office of the Director of Military
Prosecutions, emphasising adequate exposure to civilian courtroom forensic
experience.
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Government Response: Agreed
The Government notes that
the Committee recognised that the ODMP had been performing an admirable job
and agrees to review the training requirements for permanent legal officers
assigned to the Office of the DMP. The review will be extended to include the
training requirements for reserve legal officers who may be assigned
prosecution duties by the DMP.
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Recommendation
13
4.50 The
committee recommends that the ADF act to raise awareness and the profile of
the Office of the Director of Military Prosecutions within Army, Navy and Air
Force.
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Government Response: Agreed
The Government notes that
the ODMP has been actively engaged in increasing its profile over the last
eighteen months, and agrees action should continue to raise the awareness and
profile of the Office. Increased awareness and profile will help ADF members
understand the role of the DMP, and ensure that Commanders have ready access
to impartial and independent advice on the proper investigation and
prosecution of Service offences, especially those that are serious criminal
offences.
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Recommendation
14
4.51 The
committee recommends that the Director of Military Prosecutions be appointed
at one star rank.
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Government Response: Agreed
The Government agrees to
the statutory appointment of the Director of Military Prosecutions at the one
star rank.
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Recommendation
15
4.52 The
committee recommends the remuneration of the Director of Military
Prosecutions be adjusted to be commensurate with the professional experience
required and prosecutorial function exercised by the office-holder.
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Government Response: Agreed
The Government agrees to
appropriate remuneration for the appointment of the Director of Military
Prosecutions. In accordance with the Government’s response to Recommendation
10, action is being taken to create a statutory appointment of the DMP.
Remuneration of the statutory appointment will be determined by the
Remuneration Tribunal (Cth).
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Recommendation
16
4.75 The
committee recommends that all Permanent Legal Officers be required to hold
current practicing certificates.
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Government Response: Agreed in
principle
The Government notes the
Committee’s underlying concern that the current ADF structures could give
rise to a perception that ADF legal officers may not always exercise their legal
duties independently of command influence.
The independence of the ADF
permanent legal officers was criticised in the ACT Supreme Court in Vance
v The Commonwealth (2004). In part,
the case concerned legal professional privilege. A significant factor in the
case was that ADF and Department of Defence legal officers do not normally
have practising certificates and this was seen as an indication that they
were not independent and impartial and entitled to legal professional
privilege. In May 2005, the Commonwealth appealed the decision, and the ACT
Court of Appeal unanimously upheld the appeal on 23 August 2005.
Although there are
practical difficulties in implementing Practising Certificates, the legal
officers in the office of the DMP will be required to hold them, and other
permanent legal officers will be encouraged to take them out. The matter of
their independence would be established through amendment of the Defence Act,
and commitment to professional ethical standards (ACT Law Society).
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Recommendation
17
4.76 The
committee recommends that the ADF establish a Director of Defence Counsel
Services.
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Government Response: Agreed
The Government agrees to
establish a Director of Defence Counsel Services (DDCS) to improve the
availability and management of defence counsel services to ADF personnel. The
DDCS will be established as a military staff position within the Defence
Legal Division to coordinate and manage the access to and availability of
defence counsel services by identifying and promulgating a defence panel of
legal officers, permanent and reserve.
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Recommendation
18
5.94 The
committee recommends the Government amend the DFDA to create a Permanent
Military Court capable of trying offences under the DFDA currently tried at
the Court Martial or Defence Force Magistrate Level.
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Government Response: Agreed
The Government agrees to create a
permanent military court to be known as the Australian military court, to
replace the current system of individually convened trials by Courts Martial
and Defence Force Magistrates. The Australian military court will be
established under appropriate Defence legislation. The court will satisfy the
principles of impartiality and judicial independence through the statutory
appointment of judge advocates with security of tenure (five-year fixed terms
with a possible renewal of five years) and remuneration set by the
Remuneration Tribunal (Cth). During the period of their appointment, the
judge advocates will not be eligible for promotion, to further strengthen
their independence from the chain of command. The appointments will be made
by the Minister for Defence.
The appointment of new
military judge advocates would see the need to consider further, during implementation,
the position of the Judge Advocate General. The remaining functions of the
Judge Advocate General would be transferred to the Chief Judge Advocate and
the Registrar of Military Justice. The Australian military court would
consist of a Chief Judge Advocate and two permanent judge advocates, with a
part-time reserve panel. The panel of judge advocates would be selected from
any of the available qualified full or part-time legal officers. The court
would be provided with appropriate para-legal support sufficient for it to
function independent of the chain of command. In meeting all of the
requirements of military justice, the court would include options for judge
advocates to sit alone or, in more serious cases, with a military jury. The
use of a jury would be mandatory for more serious military offences,
including those committed in the face of the enemy, mutiny, desertion or
commanding a service offence.
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Recommendation
19
5.95 The
Permanent Military Court to be created in accordance with Chapter III of the Commonwealth Constitution
to ensure its independence and impartiality.
-
Judges should
be appointed by the Governor-General in Council;
-
Judges should
have tenure until retirement age.
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Government Response: Not agreed
In response to
Recommendation 18, the Government agreed to the option to establish an
Australian military court. The Government does not support the creation of a
permanent military court under Chapter III of the Constitution. Current advice is that there
are significant policy and legal issues raised by the proposal to use
existing courts for military justice purposes. Chapter III of the
Constitution imposes real constraints in this regard.
Importantly, a military
court is not an exercise of the ordinary criminal law. It is a military
discipline system, the object of which is to maintain military discipline
within the ADF. It is essential to have knowledge and understanding of the
military culture and context. This is much more than being able to understand
specialist evidence in a civil trial. There is a need to understand the
military operational and administrative environment and the unique needs for
the maintenance of discipline of a military force, both in Australia
and on operations and exercises overseas. The judicial authority must be able
to sit in theatre and on operations. It must be deployable and have
credibility with, and acceptance of, the Defence Force. The principal factor
peculiar to the Defence Force is the military preparedness requirements and
the physical demands of sitting in an operational environment. The Chapter III
requirements are not consistent with these factors, and the Government does
not support the Chapter III features for a military court.
In addition, a Chapter III court
would require its military judicial officers to be immune from the provisions
of the DFDA subjecting them to military discipline. While this is appropriate
regarding the performance of their judicial duties, the Government does not
support making them exempt from military discipline in the performance of
their non-judicial duties such as training.
The limitations resulting
from those constraints means that having a separate military court outside
Chapter III is preferable to bringing the military justice
system into line with Chapter III requirements.
The Government will instead
establish a permanent military court, to be known as the Australian military
court, to replace the current system of individually convened trials by
Courts Martial and Defence Force Magistrates. The Australian military court
would be established under appropriate Defence legislation and would satisfy
the principles of impartiality and judicial independence through the
statutory appointment of military judge advocates by the Minister for
Defence, with security of tenure (fixed five-year terms with possible renewal
of five years) and remuneration set by the Remuneration Tribunal (Cth). To
enhance the independence of military judge advocates outside the chain of
command, they would not be eligible for promotion during the period of their
appointment.
Advice to the Government
indicates that a military court outside Chapter III would be
valid provided jurisdiction is only exercised under the military system where
proceedings can reasonably be regarded as substantially serving the purpose
of maintaining or enforcing service discipline.
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Recommendation
20
5.97 The
committee recommends that Judges appointed to the Permanent Military Court
should be required to have a minimum of five years recent experience in
civilian courts at the time of appointment.
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Government Response: Not agreed
The Australian military
court will have a permanent panel of military judge advocates with legislated
independence. Appointment should be based on the same professional
qualifications and experience that apply to other judicial appointments such
as those applicable to a Federal Magistrate as set out in the Federal
Magistrates Act 1999 (Cth) Schedule 1 clause 1 (2). While recent civilian
experience could be a factor to be taken into account, other qualified
military legal practitioners should not be excluded on the basis that they do
not have recent civilian experience.
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Recommendation
21
5.100 The
committee recommends that the bench of the Permanent Military Court include
judges whose experience combines both civilian legal and military practice.
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Government Response: Agreed in
principle
The Government agrees that
judge advocates appointed to the Australian military court should have
appropriate experience and that appointments should be based on the same
professional qualifications and experience that apply to other judicial
appointments, such as those applicable to a Federal Magistrate as set out in
the Federal Magistrates Act 1999 (Cth) Schedule 1 clause 1 (2).
The Australian military
court will have a permanent panel of military judge advocates with legislated
independence. The Government notes that military judge advocates will
predominantly be drawn from the Reserve, and would have adequate civilian and
military experience. Nevertheless, other qualified military legal
practitioners should not be automatically excluded on the basis that they do
not have civilian practice experience.
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Recommendation
22
5.104 The
committee recommends the introduction of a right to elect trial by court
martial before the Permanent Military Court for summary offences.
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Government Response: Agreed in principle
The Government agrees in
principle with the concept of a right to elect trial. The form of that right
and appropriate thresholds will need to be determined once the structure of
the Australian military court is established, but will be based on existing
determinations that certain classes of serious offence must be tried by a
court incorporating a military jury.
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Recommendation
23
5.106 The
committee recommends the introduction of a right of appeal from summary authorities
to the Permanent Military Court.
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Government Response:
Agreed
The Government agrees with
the concept of an automatic right of appeal, on conviction or punishment,
from summary authorities to a judge advocate of the Australian military
court. The current process of review will be discontinued. The existing right
of appeal from Courts Martial and Defence Force Magistrates (to be the
Australian military court) to the DFDA Tribunal will be retained. Currently,
the DFDAT may only hear appeals on conviction on points of law, and may quash
a conviction or substitute a conviction on an alternative offence. This will
be amended to include appeals on punishment, noting that such an appeal might
result in an increased punishment.
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Recommendation
24
7.98 In line with Australian Standard AS 8004–203, Whistleblower
Protection
Programs for Entities, the committee recommends that: the ADF's program
designed to protect those reporting wrongdoing from reprisals be reviewed
regularly to ensure its effectiveness; and there be appropriate reporting on
the operation of the ADF's program dealing with the reporting of wrongdoing
against documented performance standards (see following recommendation).[1]
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Government Response:
Agreed
The Government will
continue the regular reviews of the Defence Whistleblower Scheme that have
been undertaken since its inception. Defence uses the Australian Standard for
Whistleblower Protection Programs AS 8004-203, and the scheme is currently
undergoing a comprehensive review by the Defence Inspector General. This
review and its implementation will emphasise the present provisions against
reprisals in the current Defence Whistleblower instruction. The Government
supports annual reporting of the operation of the scheme against documented
performance standards.
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Recommendation
25
7.103 The
committee recommends that, in its Annual Report, the Department of Defence
include a separate and discrete section on matters dealing with the reporting
of wrongdoing in the ADF. This section to provide statistics on such reporting including a discussion on the possible under
reporting of unacceptable behaviour. The purpose is to provide the
public, members of the ADF and parliamentarians with sufficient information
to obtain an accurate appreciation of the effectiveness of the reporting
system in the ADF.
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Government Response:
Agreed in part
The Government notes that
Defence already reports statistics on reporting unacceptable behaviour in its
annual report. The Government agrees that Defence will continue to include
this data in the Defence annual report. The Government does not agree to
report on potential under-reporting of unacceptable behaviour, as an exercise
necessarily speculative in nature. Defence does, however, have in place a
range of initiatives to manage and coordinate its complaints processing
function to raise awareness and encourage reporting as appropriate.
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Recommendation
26
8.12 The
committee recommends that the Defence (Inquiries) Manual include at paragraph
2.4 a statement that quick assessments while mandatory are not to replace
administrative inquiries.
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Government Response:
Agreed
The Government will amend
the Administrative Inquiries Manual to specify that quick assessments, while mandatory,
should not replace the appropriate use of other forms of administrative
inquiries. The Manual will provide improved guidance on the use of quick
assessments.
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Recommendation
27
8.78 The
committee recommends that the language in the Administrative Inquiries Manual
be amended so that it is more direct and clear in its advice on the selection
of an investigating officer.
|
Government Response:
Agreed
The Government will amend
the Administrative Inquiries Manual to improve guidance to Commanders who are
responsible for the selection of inquiry officers to carry out administrative
inquiries, such as routine unit inquiries or those appointed as Investigating
Officers under the Defence (Inquiry) Regulations. This will improve independence
and impartiality, as well as enhance the quality of inquiry outcomes.
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Recommendation
28
8.81 The
committee recommends that the following proposals be considered to enhance
transparency and accountability in the appointment of investigating
officers: Before an inquiry commences, the investigating officer be required
to produce a written statement of independence which discloses professional
and personal relationships with those subject to the inquiry and with the
complainant. The statement would also disclose any circumstances which would
make it difficult for the investigating officer to act impartially. This
statement to be provided to the appointing authority, the complainant and
other persons known to be involved in the inquiry. A provision to be
included in the Manual that would allow a person involved in the inquiry
process to lodge with the investigating officer and the appointing officer an
objection to the investigating officer on the grounds of a conflict of interest
and for these objections to be acknowledged and included in the investigating
officer's report. The investigating officer be required to make known to the
appointing authority any potential conflict of interest that emerges during
the course of the inquiry and to withdraw from the investigation. The
investigating officer's report to include his or her statement of
independence and any record of objections raised about his or her appointment
and for this section of the report to be made available to all participants
in the inquiry.
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Government Response:
Agreed in part
The Government agrees to
consider proposals to enhance the transparency and accountability in the
appointment of investigating officers. The Government agrees that
investigating officers be required to produce statements of independence and
to make known any potential conflicts of interest. The Government does not
support the proposal that conflict of interest reports be included in reports
to the Commanding Officer, rather, the Government will direct Defence to
amend the Administrative Inquiries Manual to require that investigating
officers must provide statements of independence, and that following receipt
of the statement of independence, the complainant must alert the appointing
authority to any potential conflict of interest or objection to an
investigating officer. Resolution of any conflict would then occur prior to
the commencement of the investigation.
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Recommendation 29
11.67 The committee makes the
following recommendations—
a) The committee recommends
that:
-
the
Government establish an Australian Defence Force Administrative Review Board
(ADFARB);
-
the ADFARB to
have a statutory mandate to review military grievances and to submit its
findings and recommendations to the CDF;
-
the ADFARB to
have a permanent full-time independent chairperson appointed by the
Governor-General for a fixed term;
-
the
chairperson, a senior lawyer with proven administrative law/policy
experience, to be the chief executive officer of the ADFARB and have
supervision over and direction of its work and staff;
-
all ROG and other complaints be referred
to the ADFARB unless resolved at unit level or after 60 days from lodgement;
-
the ADFARB be
notified within five days of the lodgement of an ROG at unit level with 30 days
progress reports to be provided to the ADFARB;
-
the CDF be
required to give a written response to ADFARB findings/recommendations; if
the CDF does not act on a finding or recommendation of the ADFARB, he or she
must include the reasons for not having done so in the decision respecting
the disposition of the grievance or complaint;
-
the ADFARB be
required to make an annual report to Parliament.
b)
The committee
recommends that this report
-
contain
information that will allow effective scrutiny of the performance of the
ADFARB;
-
provide
information on the nature of the complaints received, the timeliness of their
adjudication, and their broader implications for the military justice
system—the Defence Force Ombudsman's report for the years 2000–01 and 2001–02
provides a suitable model; and
-
comment on
the level and training of staff in the ADFARB and the adequacies of its
budget and resources for effectively performing its functions.
c) The committee recommends
that in drafting legislation to establish the ADFARB, the Government give
close attention to the Canadian National Defence Act and the rules of
procedures governing the Canadian Forces Grievance Board with a view to using
these instruments as a model for the ADFARB. In particular, the committee
recommends that the conflict of interest rules of procedure be adopted. They
would require:
-
a member of
the board to immediately notify the Chairperson, orally or in writing, of any
real or potential conflict of interest, including where the member, apart
from any functions as a member, has or had any personal, financial or
professional association with the grievor; and
-
where the
chairperson determines that the Board member has a real or potential conflict
of interest, the Chairperson is to request the member to withdraw immediately
from the proceedings, unless the parties agree to be heard by the member and
the Chairperson permits the member to continue to participate in the
proceedings because the conflict will not interfere with a fair hearing of
the matter.
d) The committee further
recommends that to prevent delays in the grievance process, the ADF impose a
deadline of 12 months on processing a redress of grievance from the date it
is initially lodged until it is finally resolved by the proposed ADFARB. It
is to provide reasons for any delays in its annual report.
e) The committee also
recommends that the powers conferred on the ADFARB be similar to those
conferred on the CFGB. In particular:
-
the power to
summon and enforce the attendance of witnesses and compel them to give oral
or written evidence on oath or affirmation and to produce any documents and
things under their control that it considers necessary to the full
investigation and consideration of matters before it; and
-
although, in
the interest of individual privacy, hearings are held in-camera, the
chairperson to have the discretion to decide to hold public hearings, when it
is deemed the public interest so requires.
f)
The committee
recommends that the ADFARB take responsibility for and continue the work of
the IGADF including:
-
improving the
training of investigating officers;
-
maintaining a
register of investigating officers, and
-
developing a
database of administrative inquiries that registers and tracks grievances
including the findings and recommendations of investigations.
g)
To address a
number of problems identified in administrative inquiries at the unit
level—notably conflict of interest and fear of reprisal for reporting a
wrongdoing or giving evidence to an inquiry—the committee recommends that the
ADFARB receive reports and complaints directly from ADF members where:
-
the
investigating officer in the chain of command has a perceived or actual
conflict of interest and has not withdrawn from the investigation;
-
the person
making the submission believes that they, or any other person, may be
victimised, discriminated against or disadvantaged in some way if they make a
report through the normal means; or
-
the person
has suffered or has been threatened with adverse action on account of his or
her intention to make a report or complaint or for having made a report or
complaint.
h) The committee further
recommends that an independent review into the performance of the ADFARB and
the effectiveness of its role in the military justice system be undertaken
within four years of its establishment.
|
Government Response: Not Agreed
The Government agrees there
is a need to improve the complaints and redress of grievance management
system, and proposes that the shortfalls in the existing system would best be
met by streamlining the existing ADF complaints management and redress of
grievance system and retaining independent internal and external review and
oversight agencies. The committee’s recommended ADF Administrative Review Board
(ADFARB) would not support the relationship between command and discipline,
would reduce contestability and introduce duplication.
The ADFARB concept proposed
by the Senate Committee is based on the Canadian Forces Grievance Board
(CFGB). The CFGB deals with only about 40 per cent of Canadian Defence Force
grievances, is highly resource intensive and does not replace the Canadian
internal complaints resolution body, or the Canadian Forces Ombudsman.
Defence is concerned that the ADFARB concept would reduce contestability in
the system by absorbing the ADF’s only independent review authority, noting
the proposal that the ADFARB take responsibility for and continue the work of
the IGADF. As proposed, the ADFARB would also duplicate the role of the
Defence Force Ombudsman.
The Government does not
agree to establish an ADFARB on the basis that it would be a costly exercise
that would not provide real benefits in terms of increasing perceived
independence. The Government is also concerned that an ADFARB would remove
the responsibility and accountability of commanders for the well being of ADF
personnel in their command.
The Government proposes
instead to reform and streamline the complaints and redress of grievance
management system, in line with the recommendations of a joint Defence Force
Ombudsman/CDF Redress of Grievance System Review 2004. Implementation of
these recommendations has commenced in line with a CDF Directive 2/2005.
Changes to the system will improve the rigour, impartiality and timeliness of
processing complaints.
The overarching principle
guiding the redress of grievance system remains that complaints should be
resolved at the lowest effective level and in the quickest possible time.
Primary responsibility to resolve complaints remains with the unit
commanders.
Defence’s Complaint
Resolution Agency (CRA) – an existing body which is established outside
the ADF –will become the lead agency in the coordination of complaints and
redresses of grievance.
In its expanded role, the CRA will have
three major functions.
-
The CRA will
initially provide advice to commanding officers on the management of every
application for redress of grievance and monitor the handling of those
redress applications at the unit level. It will have an enhanced advisory and
oversight function of every application.
-
The CRA will have
the authority to advise on appropriately trained and qualified investigating
officers at this initial stage and, if necessary, will require an alternative
investigating officer to that nominated by the commander.
-
Where ADF personnel refer their
complaint to the Service Chief or the Chief of the Defence Force following
the decision of the commanding officer, the Complaint Resolution Agency, as
in the present situation, will conduct an independent review of the matter
and provide recommendations to the decision maker.
All complaints will be
registered with the Complaint Resolution Agency within five days of
initiation and it will be empowered to take over the management of all cases
unresolved by commanders 90 days after lodgment. In all cases, the Agency
will be the central point for monitoring progress and resolution. A single
register for tracking complaints across the ADF will be implemented.
Other improvements to the ROG system
being implemented include improvements in training of commanding officers and
investigating officers, consolidating Defence complaint mechanisms, and
managing centrally the various complaint hotlines operating in Defence.
For those ADF personnel
who, for whatever reason, do not wish to use the chain of command, there will
remain two alternative avenues of complaint—the Inspector General of the ADF
and the Defence Force Ombudsman.
The existing Inspector
General of the ADF was established as recommended by Mr Burchett QC
to deal exclusively with military justice matters. The IGADF was established
to provide the Chief of the Defence Force 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 any cause of any injustice may be
remedied.
Although it is not a
general complaint handling agency like the CRA, it does provide an avenue
for those with complaints about military justice who are, for some reason,
unable to go through their chain of command, to have their complaints
investigated and remedied. The Government has drafted legislation to
establish the Inspector General of the ADF as a statutory appointment in
order to further strengthen its independence.
In addition to this review
mechanism and completely external to the ADF is recourse to the Defence Force
Ombudsman. This position will retain legislative authority to receive and
review complaints and to initiate on its own motion investigations into ADF
administration processes. The Defence Force Ombudsman has statutory power to
investigate a matter, make findings and recommend a course of action to the
appropriate decision maker and to table a report in Parliament if deemed
necessary.
|
Recommendation
30
11.69 The
committee recommends that the Government provide funds as a matter of urgency
for the establishment of a task force to start work immediately on finalising
grievances that have been outstanding for over 12 months.
|
Government Response:
Agreed
The Government has taken
action to clear the backlog of grievances, in line with recommendations from
Defence Force Ombudsman/CDF Redress of Grievance System Review 2004. This is
scheduled to be completed by the end of 2005, with no requirement for
additional funding or a task force.
|
Recommendation
31
12.30 The
committee recommends that the language used in paragraphs 7.56 of the Defence
(Inquiry) Manual be amended so that the action becomes mandatory.
|
Government Response:
Agreed
The Government will amend
the Administrative Inquiries Manual to require the President to ensure that a
copy of the relevant evidence is provided to a person whom the President
considers is an affected person but who is not present at the hearings. It
will be a matter for the President to determine what evidence should be made
available to an affected person having regard to all the circumstances of
each case.
|
Recommendation
32
12.32 Similarly,
the committee recommends that the wording of paragraph 7.49 be rephrased to
reflect the requirement that a member who comes before the Board late in the
proceedings will be allowed a reasonable opportunity to familiarise
themselves with the evidence that has already been given.
|
Government Response:
Agreed
The Government will amend
the Administrative Inquiries Manual as recommended, noting that the matter of
what constitutes a reasonable opportunity for familiarisation is a matter for
the decision of the President of the Board of Inquiry having regard to the
circumstances of each case
|
Recommendation
33
12.44 The
committee recommends that the wording of Defence (Inquiry) Regulation 33 be
amended to ensure that a person who may be affected by an inquiry conducted
by a Board of Inquiry will be authorized to appear before the Board
and will have the right to appoint a legal practitioner to represent
them.
|
Government Response:
Agreed in part
The Government notes that
the substance of this recommendation was agreed to following the 1999 senate
Inquiry into the Military Justice System, and Defence is finalising changes
to Defence (Inquiries) Regulation 33. The Government agrees that in cases
where either the appointing authority, before the inquiry starts, or the
President of a Board of Inquiry makes a written determination that persons
may be adversely affected by the Board’s inquiry or its likely findings, that
persons will be entitled to appear before the Board and will have a right to
appoint a legal practitioner to appear to represent them before the Board, if
they wish. Further, the Government agrees that where such persons are
represented by an ADF legal officer, or some other Defence legal officer,
such representation will be provided at Commonwealth expense, in accordance
with standing arrangements. The Government also agrees that the
representatives of the estate of deceased persons who have died as a result
of an incident and may be adversely affected by the Board’s inquiry or its
likely findings, will be entitled to be legally represented before the Board
of Inquiry into that incident. Consistently, the Government agrees that where
the representative of the estate of such persons choose to be represented before
the Inquiry by an ADF legal officer, or some other Defence legal officer,
such representation will be provided at Commonwealth expense, in accordance
with standing arrangements. It is noted that the identification of ‘persons
adversely affected’ involves the application of the principles of natural
justice; it does not automatically encompass every person who is, or may be,
a witness or has some other interest in the inquiry.
|
Recommendation
34
12.120 The
committee recommends that: all notifiable incidents including suicide,
accidental death or serious injury be referred to the ADFARB for
investigation/inquiry; the Chairperson of the ADFARB be empowered to decide
on the manner and means of inquiring into the cause of such incidents (the
Minister for Defence would retain absolute authority to appoint a Court of
Inquiry should he or she deem such to be necessary); the Chairperson of the
ADFARB be required to give written reasons for the choice of inquiry vehicle;
the Government establish a military division of the AAT to inquire into major
incidents referred by the ADFARB for investigation; and the CDF be empowered
to appoint a Service member or members to assist any ADFARB investigator or
AAT inquiry.
|
Government Response: Not agreed
The Government agrees that
there is a need to demonstrate that ADF inquiries into notifiable incidents
including suicide, accidental death or serious injury are independent and
impartial. To meet this principle, the Government will propose amendments to
legislation to create a Chief of Defence Force Commission of Inquiry. CDF
shall appoint a mandatory Commission of Inquiry into suicide by ADF members
and deaths in service. The commission may consist of one or more persons,
with one being a civilian with judicial experience. Where the commission
consists of more than one person, the civilian with judicial experience will
be the President. This form of inquiry will be in addition to the existing
arrangements for appointment of Investigating Officers and Boards of Inquiry.
External independent
legislative oversight by Comcare will continue in relation to the conduct of
all ADF inquiries into notifiable incidents. This includes arrangements for
consultation with Comcare on the terms of reference, as well as options for
attendance or participation in the inquiry process.
State and Territory
Coroners will continue to review the outcomes of ADF inquiries into deaths of
personnel. The ADF is working towards completing a Memorandum of
Understanding with State and Territory Coroners. The Defence Force Ombudsman
will continue to provide external independent legislative review of the
conduct of ADF inquiries. This may occur as a consequence of a complaint or
by own motion independently of the ADF.
The Government does not
support the concept of an ADFARB, as reflected in the response to
recommendation 29, and so can not agree to refer notifiable incidents,
including suicide, accidental death or serious injury to an ADFARB for
investigation/inquiry.
|
Recommendation
35
13.19 Building
on the report by the Australian Law Reform Commission, Principled
Regulation: Federal Civil and Administrative Penalties in Federal
Jurisdiction, the committee recommends that the ADF commission a similar
review of its disciplinary and administrative systems.
|
Government Response: Agreed in
principle
The report of the
Australian Law Reform Commission Principled Regulation: Federal Civil and 13
Administrative Penalties in Federal Jurisdiction is focused on
commercial and corporate law matters, and not the employment of personnel.
Any review of the military justice system would require a broader basis that
allows examination of all aspects of the military justice system.
The Government agrees that
in addition to ongoing internal monitoring and review, Defence will commission
regular independent reviews on the health of the military justice system.
Such reviews would be headed by a qualified eminent Australian, with the
first timed to assess the effectiveness of the overhauled military justice
system proposed in this submission, at the conclusion of the two-year
implementation period.
|
Recommendation
36
13.27 The
committee recommends that the committee's proposal for a review of the
offences and penalties under the Australian military justice system also
include in that review the matter of double jeopardy.
|
Government Response: Agreed in principle
The Government agrees to
examine the combination of criminal law and administrative action in terms of
best-practice military justice, noting that such a review will also satisfy a
recommendation from the Burchett Report to review the nature of the
punishments that may be imposed in the light of contemporary standards. This
review will be undertaken outside the broad review proposed at recommendation
35, and will be completed within the two-year implementation period.
|
Recommendation
37
13.29
The committee
recommends that the ADF submit an annual report to the Parliament outlining
(but not limited to):
(d) The
implementation and effectiveness of reforms to the military justice system,
either in light of the recommendations of this report or via other
initiatives.
(e) The
workload and effectiveness of various bodies within the military justice
system, such as but not limited to;
-
Director of
Military Prosecutions
-
Inspector
General of the ADF
-
The Service
Military Police Branches
|
Government Response:
Agreed
The Government supports the
need for transparency and parliamentary oversight of the military justice
system and will provide, in the Defence annual report, reporting on the state
of health of the military justice system. Reporting will include progress in
the implementation and effectiveness of reforms to the military justice
system, arising both from this report and previous reviews under
implementation, and the workload and effectiveness of the key bodies within
the military justice system. Defence will also amend the Defence (Inquiry)
Regulations to provide for an annual report on the operation of the D(I)R,
fulfilling a recommendation of the Burchett report. Defence will also report
twice a year to the Senate committee, on progress of the reforms throughout
the two year implementation process.
|
Recommendation
38
14.46 To
ensure that the further development and implementation of measures designed
to improve the care and control and rights of minors in the cadets are
consistent with the highest standards, the committee suggests that the ADF
commission an expert in the human rights of children to monitor and advise
the ADF on its training and education programs dealing with cadets.
|
Government Response:
Agreed
The Government agrees to
commission an expert to examine whether the human rights of children are
being respected. The Government also notes that Defence has already
implemented significant policy initiatives under the Government’s Cadet
Enhancement Program to address shortcomings in the care and control and
rights of minors in the ADF Cadets, including:
-
implementation of a
behaviour policy, providing training and materials on the expected standards
of behaviour, and including guidance and advice on the handling of sexual
misconduct;
-
development of a wellbeing
program, specifically targeted at the mental health wellbeing of ADFC cadets;
-
introduction of an ADFC
cadet and adult cadet staff training enhancement program;
-
a review of child
protection policy and processes in line with State and Territory legislation;
-
a review of screening
processes for new staff; and
-
production of a youth
development guide for adult cadet staff.
|
Recommendation
39
14.62 The
committee recommends that the ADF take steps immediately to draft and make
regulations dealing with the Australian Defence Force Cadets to ensure that
the rights and responsibilities of Defence and cadet staff are clearly
defined.
|
Government Response:
Agreed
The Government agrees,
noting that as part of the significant work initiated under the Government’s
Cadet Enhancement Program, Defence is finalising amendments to the
regulations that will more than meet the Committee’s recommendations on the
human rights of minors.
|
Recommendation
40
14.63 The
committee recommends that further resources be allocated to the Australian
Defence Force Cadets to provide for an increased number of full-time, fully
remunerated administrative positions across all three cadet organisations.
These positions could provide a combination of coordinated administrative and
complaint handling support.
|
Government Response:
Agreed
The Government agrees and
notes that the Service Chiefs have already provided additional resources to
the ADF Cadets to improve administrative support.
|
*The Government does not
agree to the recommendations (1, 2, 3, 7, 8, and 9) that taken together propose
the automatic referral of investigation and prosecution of criminal offences
with a Service connection to civilian authorities.
The purpose of a separate
system of military justice is to allow the ADF to deal with matters that
pertain directly to the discipline, efficiency and morale of the military. To
maintain the ADF in a state of readiness, the military must be in a position to
enforce internal discipline effectively and efficiently. Breaches of military
discipline must be dealt with speedily and, sometimes, dealt with more severely
than would be the case if a civilian engaged in such conduct.
The maintenance of effective
discipline is indivisible from the function of command in ensuring the day-to-day
preparedness of the ADF for war and the conduct of operations. Justices Brennan
and Toohey of the High Court in Re Tracey; ex parte Ryan (1989) (and repeated by Justice McHugh in Re Colonel
Aird; ex parte Alpert (2004)) said ‘Service discipline is not merely punishment for
wrongdoing. It embraces the maintenance of standards and morale in the service
community of which the offender is a member, the preservation of respect for
and the habit of obedience to lawful authority and the enhancing of efficiency in
the performance of service functions.’
As a core function of
command, military justice cannot be administered solely by civilian
authorities. Recourse to the ordinary criminal courts to deal with matters that
substantially affect service discipline would be, as a general rule, inadequate
to serve the particular disciplinary needs of the Defence Force. Further, the
capacity to investigate and prosecute offences under the Defence Force
Discipline Act 1982 is necessary to support ADF operations both within and
outside Australia. The Government does not accept that the DFDA—or more
broadly the system of military justice—is a “duplication” of the criminal
system.
Importantly, jurisdiction
under the DFDA for any offence may only be exercised where proceedings can
reasonably be regarded as substantially serving the purpose of maintaining or
enforcing Service discipline—a purpose different to that served by the criminal
law. Moreover, extensive guidelines for the exercise of DFDA jurisdiction and
the satisfaction of this service connection test are set out in comprehensive
Defence instructions. It is a core element of the DFDA that not all criminal
activity is or should be dealt with by the military police.
The Government is also
concerned that the civil code does not have the disciplinary provisions
required to keep order and encourage discipline and cohesive teamwork, and may
actively undermine the ability of commanding officers to address disciplinary
issues through the more expeditious summary action 15 available under the DFDA.
This particularly applies to those cases that may be considered insignificant
in a civilian context—petty theft for instance—that may have serious
implications for service discipline and morale, and may eriously undermine the
authority of a commanding officer to maintain effective discipline. The
proposed enhancements to the military justice system seek to provide a balance
between military effectiveness and external oversight by ensuring that the
system meets legal standards, conforms as far as possible to community
expectations, and provides reassurance to the Parliament and the community that
ADF members’ rights are being protected without compromising the ADF’s ability
to remain an effective fighting force. It is based on the premise of
maintaining effective discipline and protecting individuals and their rights,
administered to provide impartial, timely, fair and rigorous outcomes with
transparency and accountability. Where Defence prosecution substantially serves
the purpose of maintaining and enforcing Service discipline, offences in Australia will
be dealt with under the DFDA.
Past challenges to the system
of retention or referral of cases in the High Court have been unsuccessful and
the current system and thresholds will be maintained, with determination
decisions undertaken by the Director of Military Prosecutions. Defence will
work to improve the management and effectiveness of the relationship between
the military and civilian authorities on referral issues. This will include reviewing
and clarifying the guidelines and examining the need for, and implementing as
necessary, formal arrangements with the states and territories for referral of
offences. Defence also intends to establish a common database for tracking
referrals.
The Government is also of the
view that outsourcing the criminal investigative function would complicate
proposed efforts to address the problem of the capability of the military
police. Military police will still be required to perform criminal investigative
roles if, for instance, civilian authorities decline to investigate a matter,
and subsequently referred it back to the military police.
The Government has accepted
recommendations 5 and 6, to improve the quality of criminal investigations
conducted by Service police, including through the establishment of an ADF
Joint Investigation Unit.