nce their conduct in the trial.' Chapter III of the
Constitution provides protections for judicial independence through security of
tenure and the maintenance of a long tradition of impartiality. Extending the
meaning of 'service offence' to the present case means that such protections
are bypassed.
...
The
very fact that there have been three major investigations into 'military
justice' or the 'military judicial system' in Australia in quick succession speaks volumes about
the seriousness of the problems that tend to be endemic in such a system. The
culture of the military is not one in which independent and impartial
resolution of charges comes naturally. These considerations reinforce the need
for great caution in expanding the reach of the system of service tribunals,
particularly in time of peace.[339]
5.42
Justice Kirby
also discussed the importance of instilling civilian judicial principles and
protections into the military disciplinary system:
The
services have sometimes endeavoured to cut themselves off from ordinary law. In
special and limited circumstances, where it is proportional and appropriate for
national defence, it must be so, at least for a short time, as during actual
conflict. But under the Australian Constitution, the armed services are not
divorced from civil law. Indeed, they exist to uphold it. It is the duty of
this Court to maintain the strong civilian principle of the Constitution. It is
one of the most important of Australia's legacies from British constitutional law.[340]
5.43
Dicta from the Alpert
decision suggests that members of the High Court may be willing to
reconsider the Constitutional validity of Service tribunals. In light of
several comments made during the course of proceedings, the committee suggests
that it might be timely for the Government to consider questions of
independence and impartiality in disciplinary tribunal structures.
5.44
Amending current structures to reflect the provisions
of Chapter III would be a means of circumventing a potential challenge to the
Constitutional validity of disciplinary tribunals. The discipline system should
be reformed to impart greater independence and impartiality into tribunal
structures. This would provide Defence personnel with a discipline system that
more fully protects their rights, reflects the principles and guarantees
underpinning the Commonwealth Constitution, and could prevent a potential
finding of Constitutional invalidity.
Overseas developments
5.45
Recent overseas developments also indicate that the
current Australian disciplinary system is outdated and may not adequately
protect Service personnel's rights. The JAG and other experts in the field drew
the committee’s attention to developments in Canada
and the United Kingdom.
Both these jurisdictions possessed similar structures to Australia’s
and introduced wide ranging programmes of reform. The rationale behind these
modernisation processes suggests a need for similar 'root and branch' change in
Australia.
5.46
A number of academic works discussing various overseas
military justice developments also lend considerable weight to arguments
advanced in support of broad-based Australian reform. These works often
undertake inter-jurisdictional comparative analysis, are instructive insofar as
they provide insight into the benefits and detriments of different models, and
echo many of the issues and concerns raised in this inquiry.
5.47
Notably, commentators have tracked the increasing
fusion of civilian judicial norms and principles in the military justice
sphere, creating systems with far greater independence and impartiality. Mr
Eugene Fidell
notes:
One country after another has in recent times focussed on issues
of independence and impartiality in the administration of military justice.[341]
5.48
These reforms have apparently extended and protected
the basic human rights of Service personnel whilst simultaneously serving the
operational requirements of the relevant Defence force.
Canada
5.49
Canadian reform occurred following legal challenges to
the structure of the disciplinary system. R
v. Gnreux[342] was the main
decision challenging the validity of Service tribunals. In Gnreux, the Supreme Court of Canada concluded that the court
martial system violated constitutional guarantees to an independent and
impartial trial. Courts martial were found invalid because of the commanding
officer's role and the potential for someone located within the chain of
command to interfere in matters directly and immediately relevant to the
adjudicative function.[343] Perhaps
most significantly, the Court held that actual lack of independence need not be
established. The test should be whether an informed and reasonable person would
perceive the tribunal to be independent—in other words, 'the legal framework
governing the status of the tribunal as opposed to the actual good faith of the
adjudicator'.[344]
5.50
Gnreux provided
the impetus for a raft of changes to the Canadian disciplinary system. In 1999,
Bill C-25 was enacted. It granted
personnel the right to elect trial by court martial for all but the most minor
disciplinary offences; altered the appointment of judges (now by the Governor
in Council and therefore outside the chain of command); and established a
courts martial administrator to convene courts martial at the request of the
Canadian DMP.
5.51
In 2003, the Rt Hon Antonio Lamer completed a review of
the Canadian military justice system to assess the impact of the reform
programme.[345] Lamer asserted that an
independent military judiciary is the hallmark of a fair military justice
system, and concluded that Bill C-25
had enhanced the independence of military judges by including provisions
outlining the appointment, terms and functions of military judges. He
considered, however, that these reforms had not gone far enough to ensure
independence and impartiality, stating:
To further ensure judicial independence, I am recommending the
creation of a permanent trial level military court, with judges appointed until
retirement.[346]
5.52
Lamer argued that the establishment of a permanent
court would not only protect the constitutional right to a fair, independent
and impartial trial, but would also allow an independent judge to deal with
pre-trial and interlocutory issues.[347]
When weighing up the benefits of establishing a permanent court, Lamer stated:
Constitutionality is a minimum standard...those responsible for
organizing and administrating a military justice system must strive to offer a
better system than merely that which cannot be constitutionally denied.[348]
5.53
The proactive approach advocated by Lamer was endorsed
by the Australian JAG. The committee notes the apparent benefits of the
Canadian reform programme and urges the Australian Government to adopt a
similarly proactive approach to improving the disciplinary system.
United Kingdom
5.54
Reform has also been undertaken in the UK.
Again, legal challenges to the validity of courts martial provided the impetus
for change. The watershed decision was Findlay v United Kingdom.[349]
In Findlay, the European Court of
Human Rights determined that courts martial were not sufficiently separated
from the chain of command to be considered 'impartial tribunals' for the
purposes of Article 6 of the European Convention on Human Rights. Article 6 of
the European Convention reflects the provisions of Article 14(1) of the ICCPR,
discussed above at paragraph 5.9.
5.55
Lack of impartiality stemmed from the role and position
of the convening authority (a non legally-qualified officer) in the disciplinary
process. Prior to the post-Findlay
structural changes, the convening authority was responsible for:
-
making the decision to prosecute;
-
deciding the charges to be answered;
-
appointing the prosecutor;
-
exercising executive control of the proceedings;
-
selecting members of the court martial (who may
come under his or her authority in the chain of command);
-
confirming any sentence awarded by a court
martial; and
-
determining whether to allow an appeal.
5.56
The Court was concerned that the convening authority's
multiple roles raised the potential for unlawful command influence. In her
discussion of the implication of the Findlay decision, Lyon
stated:
There was certainly an appearance of a lack of complete
independence of the court from the convening officer...A reasonable man would
most certainly conclude that there was a real possibility that a member of the
court might be unconsciously influenced by his military and subordinate
relationship to the convening officer, that this unconscious influence would
prevent him from considering the evidence before him solely on its merits, and
that there was a real danger of that unconscious influence causing injustice to
the accused, even if there was no evidence of any actual lack of impartiality
or of any attempt by the convening officer to influence the court.[350]
5.57
In 1996, the British Government introduced the Armed Forces Act to remedy the
shortcomings highlighted in Findlay. The role of convening authority
was abolished, and its functions distributed among three different bodies. The
prosecuting authority, courts martial administration officer and reviewing
authority are now all distinct from one another, and have clearly delineated
powers and personnel.[351]
5.58
The 2003 European Court of Human Rights decision Grieves v. The United Kingdom[352] led to further reform to the
British military justice system. In Grieves the court found that Naval
courts martial lacked independence and impartiality due to the role of the
Judge Advocate. In the course of reaching its decision, the Court commented:
The Court recalls that in order to establish whether a tribunal
can be considered 'independent', regard must be had, inter alia, to the manner
of appointment of its members and their term of office, the existence of
guarantees against outside pressures and to the question whether the body
presents an appearance of independence.
In this latter respect, the Court also recalls that what is at
stake is the confidence which such tribunals in a democratic society must
inspire in the public and above all, as far as criminal proceedings are
concerned, in the accused.[353]
5.59
The Court noted that in the UK,
Army and Air Force Judge Advocates are civilians working full time for the
civilian Judge Advocate General. Army and Air Force Judge Advocates are
therefore located outside the chain of command, and free from command
influence. By contrast, however, Naval Judge Advocates are serving naval
officers appointed by the Chief Naval Judge Advocate (CNJA), who is also a
naval officer. This arrangement is analogous to the current Australian
situation. The Court found that the nature of a Judge Advocate's appointment
and his or her position within the chain of command was not a strong guarantee
of independence, and concluded:
The lack of a civilian in the pivotal role of Judge Advocate
deprives a naval court-martial of one of the most significant guarantees of
independence enjoyed by other services' courts-martial.[354]
5.60
Following the Grieves
decision, the British Government amended the procedures for appointing
Naval Judge Advocates. They are now appointed by the same body responsible for
appointing Army and Air Force judge advocates, further enhancing the
independence and impartiality of courts martial.
5.61
The committee notes that the British Government is
currently developing a legislative programme to further reform the military
justice system. The new programme seeks to harmonise the framework and extend
the reforms previously discussed across all three Services. Perhaps most
significantly, the Ministry of Defence's Memorandum:
Tri-Service Armed Forces Bill
indicates that the legislative programme will lead to the creation of a
standing court-martial, rather than ad hoc courts.[355] The Memorandum explicitly states
that the proposals under consideration 'maintain an approach that is evolutionary
rather than revolutionary.'[356]
United States of
America
5.62
The independence and impartiality of military tribunals
has been a contentious issue in the USA.
Similar to the issues encountered in Canada
and the UK,
debate centres on the benefits of establishing an independent military
judiciary and the position of the military judge.
5.63
Frederick
Lederer and Barbara
Zeliff provided an articulate explanation of
the differences between military and civilian judges:
The military judiciary is unique. Civilian judges in the US
are either elected or appointed. Once named to the bench, they are not subject
to the direction of any other person, and, absent removal proceedings, they
remain on the bench until death, resignation or completion of the judicial
term. Judicial independence is one of the defining elements of the civilian
judiciary. The military judge, on the other hand, is appointed by the judge
advocate general (JAG) of the appropriate armed service, serves without a fixed
term at the pleasure of the JAG, and is evaluated at least annually by senior
officers. Subsequent promotion and reassignment depend on the judge's annual
officer evaluation and the personal knowledge and desires of the senior
officers responsible for assignments.[357]
5.64
Lederer and Zeliff asserted that the military
judiciary's independence problem is an 'inherent consequence' of its historical
and statutory 'command control' basis. They identify the risk of, albeit
subtle, 'command retaliation':
The risk of 'command' retaliation—actions taken by more senior
judges or by the JAG or his or her subordinates—can be very subtle. Any number
of administrative decisions adverse to a judge can be taken in such a way as to
defy either detection or clear causation. Real or perceived limitations on the
independence of military judges stem directly from the structure of the
military legal system, complicated by the culture within which the judiciary
exists.[358]
5.65
Lederer and Zeliff recommended the creation of an
independent military court. They recognised the benefit of military experience,
acknowledging that an independent military bench should be staffed with
personnel that have an adequate appreciation of the subtleties of military
service. They emphasised, however, the importance of independence after
appointment to the bench:
The key to the proposal is the careful mix of selection
provisions with post-selection independence.[359]
5.66
The American Judges Association has also commented on
the position of military judges:
The perception is that without tenure, a military judge is
subject to transfer from the service judiciary should he/she render unpopular
evidentiary rulings, findings or sentences. There is no protection from
retaliatory action by dissatisfied superiors in the chain of command.
Similarly, the perception exists that judges who make rulings unpopular with
[the] military hierarchy are endangering their possibilities of promotion
because that same hierarchy is the system which makes selections for promotion.[360]
5.67
Eugene Fidell
also makes some incisive observations about the nature of military tribunals
and judges. He contrasts the position of military judges with civilian judges,
noting the independence of the appointment process and tenure enjoyed by the
latter:
The civilian federal standards of review the Court of Appeals
has embraced emerged in the context of appellate review of decisions by
senatorially confirmed district judges with the protection of life tenure
subject only to removal by impeachment. Military trial judges, however, are not
senatorially confirmed as judges.
They preside over courts that appear without warning and vanish without a
trace, in contrast to the district courts, some of which have been in
continuous operation for two hundred years or more. Unlike their civilian
counterparts, military judges are selected by the judge advocates general and
are subject to evaluation like other commissioned officers. They enjoy no
protected term of office and are therefore subject to removal without cause,
subject only to the Court of Appeals (in my view) illusory and inadequate
promise in United States v Graf that
they will be protected from retaliatory removal. Military judicial discipline
remains a secret.[361]
5.68
These various critiques of the American military
justice system are useful to discussions surrounding the reform of Australia's
military justice system. Australian Judge Advocates similarly lack tenure, are
appointed from within the chain of command, and preside over tribunals that
'appear without warning and vanish without a trace'.
Committee view
5.69
The committee notes the reforms undertaken in other
jurisdictions to address many of the difficulties currently experienced in Australia.
Whilst not advocating an unquestioning whole-sale transplantation of a
particular overseas model, the committee nonetheless feels that these
developments should be examined in detail to extract useful lessons for the reform
of our own military justice system.
5.70
Most notably, where other jurisdictions have
encountered difficulties with the impartiality and independence of courts
martial, they have removed the adjudicatory function from the chain of command,
or are in the process of doing so. The growing international trend towards
appointing tenured independent military judicial officials and creating
standing military courts allows those Service personnel access to independent
and impartial tribunals, and should not go unnoticed in Australia.
Tribunals and Appeals – Summary Authorities
5.71
The vast majority of offences prosecuted under the DFDA
are tried at the Summary Authority level. The committee acknowledges the need
for speedy and efficiently administered summary justice, and recognises its
role in supporting commanding officers and maintaining Service discipline.
However, inadequate summary processes have the capacity to affect a higher
proportion of Service personnel than defective courts martial and DFM trials,
and by failing to appear to provide just outcomes, can serve to undermine the
very system they mean to strengthen. It is therefore important to address
issues arising in the summary discipline context.
5.72
The JAG indicated in his submission to this inquiry:
Summary Trials conducted by commanding officers and subordinate
summary authorities present their own difficulties. In my view it is not
possible to imbue these tribunals with guarantees of independence appropriate
to the higher level tribunals.[362]
5.73
The JAG did not elaborate on these comments in his
evidence to the committee, but did recommend that consideration should be given
to providing an accused with the right to elect a trial before a DFM or court
martial.[363]
5.74
The committee is aware that summary tribunals,
structured similarly to Australia's,
have been declared invalid in the UK,
and have undergone significant change to enhance their impartiality and
independence. Because of the improved protection of individual rights, and
their enhanced capacity to provide impartial, rigorous and fair outcomes, the
British reforms are therefore of particular interest to the committee.
5.75
Prior to 1996, the summary discipline structure in the UK
was very similar to the current Australian model. In 1996, a right to elect
trial by Court Martial was introduced following the passage of the Armed Forces
Act. As was outlined previously, British courts martial are independent from
the military, and it was thought that introducing a right to elect a trial by court
martial would protect Service Personnel's right to access a fair and
independent tribunal. If an accused elected trial by Summary Authority,
however, the process was the same as the current Australian process, and review
was only possible through the chain of command.
5.76
In 2000, following the UK's ascension to the European
Convention on Human Rights (ECHR), the system was again altered to further protect
the right to a fair trial with the establishment of the Summary Appeals Court (SAC).
The SAC supplements the right to elect a trial before court martial, ensuring
that those who are dealt with summarily have a second avenue to an ECHR
compliant independent court.
5.77
The SAC consists of an independent Judge Advocate and
two officers generally of the same Service as the appellant. When an individual
is found guilty by their CO, they have 14 days to lodge an appeal against their
conviction with the SAC. The appeal on
finding, or on finding and sentence takes the form of a re-hearing along the
lines of an appeal to the British Crown Court from a decision of the
magistrate's court. The rules of evidence mirror those in the civilian system,
with appropriate modifications. Where the appeal is on sentence alone, and
there is no material dispute as to facts, the court will only hear a statement
of facts followed by pleas in mitigation. The appellant is entitled to legal
representation at the hearing of his or her appeal, and is entitled to apply
for legal aid for this purpose, under the Service's legal aid system. Hearings
before the SAC are held in public. Appeals are possible on points of law only
to the High Court.
5.78
The capacity to elect trial by court martial and appeal
summary convictions to the SAC gives the British summary discipline model a
considerably greater degree of independence than the current Australian model.
The committee considers that the introduction of similar mechanisms would better
protect ADF personnel's rights and contribute to the provision of impartial,
rigorous and fair disciplinary outcomes.
Findings and recommendations
5.79
It is becoming increasingly apparent that Australia's
disciplinary system is not striking the right balance between the requirements
of a functional Defence Force and the rights of Service personnel, to the
detriment of both. Twenty years since the introduction of the DFDA, the time
has come to address seriously the overall viability of the system. Australian
judicial decisions and the evidence before this committee suggest the
discipline system is becoming unworkable and potentially open to challenge on
constitutional grounds. Overseas jurisprudence and developments suggest that
alternative approaches may be more effective.
5.80
The Committee recognises that peripheral improvements
to the disciplinary system have been made. A piecemeal approach to reform,
however, is proving increasingly ineffective and untenable. The time has come
to address the more fundamental underlying structural weaknesses within the
military justice system. A fork in the road is rapidly approaching concerning
the administration of the disciplinary system.
5.81
Based on the evidence to this inquiry, leaving the
disciplinary structures within the military justice system unchanged is clearly
not viable. The status quo leaves too many members of the ADF exposed to harm.
Overseas jurisdictions have increasingly moved towards structures that impart
greater independence and impartiality. The approaches taken overseas were
endorsed by the Judge Advocate General, Mr
David Richards,
Mr Michael
Griffin and a considerable body of academic
commentary.
5.82
Modern trends in governance emphasise greater openness,
accountability, independence and impartiality where matters affecting citizens
rights are concerned. The Defence Forces should not be exempt from this trend.
Members of the ADF are subject to conditions of service unlike any other. It is
therefore incumbent upon the Government and society as a whole to ensure that
their rights and freedoms are protected to the fullest extent possible.
5.83
The committee reiterates the view expressed at the
outset of its consideration of the discipline system that, in the first instance
all 'non-military' offences should be removed from the military justice system.
This would entail the referral of all offences currently under the DFDA that
have a civilian equivalent or involve civilian criminal elements, in addition
to all offences caught by s61 of the DFDA (all offences that are criminal in
the Jervis Bay Territory) to the relevant civilian authorities for prosecution
in the civilian courts.
5.84
The committee notes, however, that cases may be
referred back into the military justice system. There may still be a need to
prosecute these offences, in addition to offences that have no civilian equivalents,
for the purposes of maintaining Service discipline. The committee holds the
opinion that there is a need for fundamental structural reform to impart
greater independence and impartiality into current tribunal structures.
5.85
An independent Permanent Court, staffed by
independently appointed judges possessing extensive civilian experience, would
extend and protect Service personnel's inherent rights and freedoms, leading to
more impartial, rigorous and fair outcomes. Appointing Judges that may have had
military experience, in addition to their extensive civilian experience, would
render them capable of appreciating the exigencies of military service and the
nature and purpose of Service discipline, simultaneously serving both the
Service and Service member, to the benefit of both.
5.86
The Government should not wait for disciplinary
tribunals to come under constitutional challenge before acting to address the
weaknesses inherent within the current system. Rather, it should adopt a
proactive stance and protect Service personnel now. Nor should the Government adopt ‘constitutionality’ as its
minimum standard. The goal should not be to establish a system that will merely
gain the approval of the High Court. The goal should be to structure a tribunal
system that can protect the rights of Service personnel to the fullest extent
possible, whilst simultaneously accommodating the functional requirements of
the ADF.
5.87
Numerous witnesses and submitters to this inquiry have
emphasised the need for the ADF to have the ability to maintain Service
discipline as a means to enhance the operational effectiveness of the military.
As quoted earlier, in both his main and supplementary submissions, General
Cosgrove reinforced the operational need for an effective military justice system
in response to the unique requirements of military service, stating:
The control of the exercise of discipline, through the military
justice system, is an essential element of the chain of command. This has not
been challenged during the Inquiry and remains a significant distinguishing
feature of military justice.[364]
5.88
Mr Neil
James of the Australian Defence Association,
also supported the notion that military discipline was essential to the
operational effectiveness of the Defence Forces. He stated:
The association considers the following broad philosophical and
practical points are relevant to any review of the military justice system.
First, a democracy cannot maintain an effective Defence Force without that
force being subject to a code of disciplinary legislation that specifically
covers the purposes, situations, conditions and exigencies of war. No extension
of civil codes of law can, or necessarily should, meet those requirements. This
inquiry, therefore, is surely about improving the Defence Force Discipline Act
rather than abolishing it. Second, discipline is both a lawful and an
operationally essential component of command.[365]
5.89
The Judge Advocate General, standing statutorily
independent of the ADF, and appointed by the Governor General, endorsed the principle
of ADF control over the discipline system. Whilst discussing his suggestions
for reform with the committee, the JAG stated:
The first and
fundamental point is that we are not talking about an exercise of the ordinary
criminal law—although in some areas, as I am sure the committee appreciates,
they overlap. It is a military discipline system. The object is to maintain
military discipline within the ADF by a system which is, and is seen to be,
fair and just and which serves the purpose of military discipline, which is,
ultimately, success in battle. The historical need for a discipline system
internal to the military force has been recognised by the High Court of
Australia in a number of cases—and I think I have referred to them in my
submission. So that need, as I would see it, is beyond debate in terms of
principle
...
The second point I
would make is that it is essential, in my view, to have knowledge of and
understanding of the military culture and context. This is something 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 third point is that the system must have credibility: credibility with and
the acceptance of the Defence Force. It has been suggested that civilian judges
have been seen as a success and accepted by the army and the Royal Air Force in
the United Kingdom, but that view certainly is not universally
held within the armed forces in the UK, as my recent discussions have shown.
The fourth point is
that Canada, for example, which is very comparable to Australia in this regard, is firmly of the position
that military judges be serving military officers, but, again, that they have
structured, legislative, guaranteed independence. Finally, the disciplinary
tribunal, the court martial or Defence Force magistrate, as I have already
observed, must be able to sit in theatre and on operations. It has to be
deployable.[366]
5.90
Suggestions for an independent court contemplate and
accommodate the need for ADF control over discipline, yet still allow for the
protection of individual rights. The evidence to this inquiry shows that an
independent judiciary could simultaneously support the maintenance of Service
discipline, maintain operational effectiveness, and protect the rights of
Service personnel.[367]
5.91
The committee reiterates Recommendation One: all
suspected criminal activity in Australia
should be referred to the appropriate State/Territory civilian police for
investigation and prosecution before the civilian courts.
5.92
Where, however, offences are referred back to the
military, Service members should still retain the right to access independent
and impartial tribunals for the determination of their guilt or innocence.
Their decision to serve and defend Australia
should not mean that they sacrifice the basic right to a fair trial possessed
by every Australian citizen. Where the military purports to exercise
jurisdiction over Service offences, the committee considers that this should
only be done through a court created under Chapter III of the Commonwealth
Constitution.
5.93
The committee considers that a Permanent Military
Court, created possibly as a division of the Federal Magistrates Court, would
offer a number of benefits:
-
Service members charged with referred civilian
equivalent, Jervis Bay Territory and non-civilian offences would exercise the
same rights to a fair and impartial hearing as every other Australian citizen;
-
judges would be independently appointed by the
Governor-General in council and have tenure until retirement age, removing
current perceptions of a lack of independence;
-
the likelihood of constitutional invalidity is
reduced;
-
judges would have extensive experience within
the civilian justice system;
-
the Court would be open, enhancing the
visibility of military justice to the general public and Service personnel
alike;
-
consistent decision-making would be promoted
through the creation of a body of precedent;
-
interlocutory and pre-trial matters would be
dealt with by an independent and impartial judge;
-
the considerable costs and inconveniences
associated with the current ad hoc convening of Service tribunals would be
removed;
-
judges appointed to the bench would have
military experience, enabling them to appreciate the institutional context
within which military discipline applies, but would be completely independent
from the ADF;
-
Australia would uphold its obligation under
Article 14(1) of the ICCPR; and
-
the Australian system would be consistent with world's
best practice.
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.
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.
5.96
The committee considers that judges appointed to the
Permanent Military Court should have recent and extensive civilian legal experience.
This would be best achieved by ensuring that appointees to possess at least
five years recent experience in civilian courts at the time of appointment.
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.
5.98
The committee
considers that the bench of the Permanent Military Court should also include
judges that have a knowledge and understanding of the military culture and
context, in addition to civilian experience. The committee agrees with the
proposition advanced by the JAG that Military Court judicial officers need to
understand the military operational and administrative environment and the
unique needs for maintaining discipline in a military force. The committee also
considers that the presence of judges with military experience would strengthen
the credibility and legitimacy of the Permanent Military Court within the
Defence Forces. It may not be essential that all appointees have military
experience, but the committee considers that the bench should include judges
that have served in the armed forces and have an appreciation of the DFDA's
institutional context.
5.99
The committee suggests that appointing experienced
Reserve Legal Officers to the bench would ensure that judges possess an
adequate degree of civilian and military experience. It is important to
emphasise, however, that regardless of whether an individual has civilian legal
experience alone, or possesses some degree of military experience, on
appointment to the bench by the Governor-General, judges must be completely
independent of the Defence Forces.
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.
5.101
The committee considers that reform is also needed to
impart greater independence and impartiality into summary proceedings. Summary
proceedings affect the highest proportion of military personnel. The current
system for the prosecution of summary offences, however, suffers from a greater
lack of independence than Courts Martial and DFM processes.
5.102
The committee considers that Service personnel should
have the right to access impartial and independent tribunals at all levels
within the military justice system—the
right should not be confined to 'serious' offences. All charges can potentially
lead to a criminal record which could have a significant impact on the lives of
Service personnel long after they leave the military. Where there is potential
for a conviction to be recorded, all Australians should have the right to
access impartial and independent tribunals for the determination of their guilt
and innocence.
5.103
Creating a right to elect trial by Court Martial before
the Permanent Military Court would ensure that a determination of guilt or
innocence can be made by an independent and impartial tribunal.
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.
5.105
Where a Service member elects to have their matter
heard by the Commanding Officer, the committee considers that they should
possess the right to appeal the Commanding Officer's decision to the Permanent
Military Court, supplementing the right to elect trial by court martial, and
further ensuring access to an independent court for the determination of guilt
or innocence for all types of crime.
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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Part 3 - The Administrative System
The ADF uses the term
'military justice' in a broad sense. According to General Cosgrove:
It covers disciplinary action under the Defence Force Discipline
Act, including the investigation of offences. It also includes the conduct of
administrative inquiries, adverse administrative action and the right to
complain about such action. The military justice system, writ large,
incorporates the laws, policies and processes under which military justice is
administered.[368]
Senior Defence
officers acknowledge that both the disciplinary and administrative components
of the military justice system are 'essential to maintaining a disciplined and
operationally effective military force'.[369]
The systems, however, are quite distinct and separate. The administrative
system has a different legislative source and serves a different purpose from
the disciplinary system.[370]
Part 3 of this report examines the administrative component
of the military justice system. It follows logically from and builds on Part 2
which dealt with the disciplinary system. It considers the following major
components of the administrative system:
- the avenues and processes available to make a
report of wrongdoing or to submit a complaint;
- the conduct of fact-finding administrative
inquiries into issues such as safety, accidents, unacceptable or unprofessional
behaviour and failures in command and control including
- routine and investigating officer inquiries, and
- the appeal and review processes open to people
dissatisfied with the outcome of an administrative action including
- the notice to show cause and redress of
grievance, and
- the IGADF and the Defence Force Ombudsman.
This Part concludes with a section on the offences and
penalties under the military justice system.
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