|
Navigation: Previous Page | Contents | Next Page
Appendix 3 - Written questions on notice to the Department of Defence
Jurisdiction of the Australian Military Court (AMC)
1. In your submission, you indicated that you had
advice 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 purposes of maintaining or
enforcing service discipline'.[1]
- From whom did you obtain this advice? Could it be made available
to the committee?
2. The Judge
Advocate General stated in his submission:
The AMC will have complete (and exclusive) Australian
jurisdiction over members of the ADF outside Australia.[2]
3. The Judge Advocate General stated further:
Given the present and likely future tempo of operations and
exercises, it is entirely foreseeable, if not likely, that there will be
charges of the most serious offences (such as rape or murder) against members
of the ADF at some stage. The AMC would be the only Australian court which
would have jurisdiction. The notion that such charges would be dealt with by a
body described as a 'tribunal' and equivalent to the AAT is extraordinary.[3]
- Is it correct that the AMC would be the only Australian court that
would have jurisdiction over crimes committed overseas such as rape and murder
committed by ADF personnel against another ADF personnel?
- Could you please explain the extent of the AMC's jurisdiction? Does
it cover civilian defence personnel and, if so, in what way and under what circumstances?
- In your view is the risk of a successful challenge to the AMC
increased by the decision to allow the jurisdiction of the AMC to extend to
criminal offences committed overseas?
Terms and conditions of appointment
Fixed and renewable terms
4. The JAG submitted that military judges will have
even less independence, so far as their terms of appointment are concerned,
than they have under the existing arrangements. He explained:
They are currently appointed for three year terms by the JAG,
but it is on the basis that the terms will be automatically renewed subject to
good behaviour in the judicial sense of that term...To now move to five-year
renewable terms, which are not automatic (and indeed, must be sought to be
justified as exceptional), considerably reduces the actual and perceived
independence of the judges of the AMC and greatly impedes the AMC’s ability to
develop experience and excellence.
5. The Law Council of Australia concurred with this
view, arguing that, 'the possible extension of 5-year terms may lead to the
perception that Military Judges are beholden to the military chain of command
or political appointees'.
- Would you like to respond to the concerns of the JAG and the Law
Council?
6. The JAG suggested that 'given that the compulsory
retiring age is 55 for permanent officers and 60 for the Reserve, I would not
have thought that there was any real practical difficulty in effectively
limiting appointments to about a ten-year term while still affording the
protection of an appointment until retiring age'.[4]
- Would you like to comment?
- Did Defence consider the compulsory retirement age of ADF
personnel when deciding on the term of appointment?
7. The JAG stated further that the proposed five year
terms are insufficient to permit the development of proper experience in the
discharge of judicial duties. He said he would be amazed 'if the ADF were able
to support the flow-through of officers for these highly specialised duties at
that rate'. The Law Council reinforced this view stating, 'In practical terms,
five year terms for MJ’s will have the result that the AMC is constituted by
relatively inexperienced judges, given that the officers concerned are to
retire at the expiration of their appointment'.
- Would you like to comment on the likely effect that the 5-year
fixed term is likely to have on the level of experience in the AMC?
Termination of appointment
8. One of the grounds for terminating the
appointment of the Chief Military Judge or Military judges is 'if the Judge no
longer meets his or her individual service deployment requirements'.
- Could you explain what this means and why this arrangement does
not weaken the independence of the Judge?
9. Another
reason for terminating the appointment of the Chief Military Judge or a
military judge is if he or she ceases to be a member of the ADF or the ADF
Reserves. The JAG, in his annual report, alerted the government to the risk
that the CJA and the JAs may be removed by what he termed 'collateral attack'
on the basis of their appointment as a serving officer.
-
Did the ADF consider such matters when drafting the bill?
- Are there safeguards to prevent this type of 'collateral attack'?
10. In his submission to the committee, the JAG
reinforced his long-held view that the termination of a military judge's appointment
should involve the Governor-General on address by both Houses of Parliament. He
was concerned about undue influence by the executive.
- Could you explain why the advice of the JAG was not accepted?
Compulsory retirement
11. The proposed bill also means that a military judge
will cease to be a member of the ADF when he or she ceases to hold office as a
Military Judge unless the person is to be immediately appointed Chief Military
Judge[5]
The JAG was of the view that:
In practical terms, the provisions for military judges to
automatically separate from the Service at the end of those five year
appointments, with no provision for financial incentive, causes me to wonder
whether the ADF will be able to find suitably qualified officers prepared to
undertake these demanding and important duties.
- Would you like to comment on the JAG's observations about
financial incentives and whether the ADF will be able to find suitably
qualified officers prepared to undertake these demanding and important duties?
12. The Law Council also
found fault with the compulsory retirement provision arguing that compulsory
retirement from the Defence Force at the end of an MJ’s term of appointment, 'will
dissuade most suitable appointees to the office of MJ from applying for appointment'.
- What is the reason behind the compulsory retirement provision and
in Defence's view could it be a disincentive for people to apply for the
position?
13. Could you explain the consultation process that
led to the decisions on the provisions dealing with a military judge's terms
and conditions of appointment?
The rank of Military Judges
14. The Law Council
also observed that a MJ is to be of no lower rank than Commander equivalent,
which permits appointments of MJs that are two ranks lower than the CMJ, the
DMP and the Registrar of the Court. It was of the view that the lower rank of a
MJ 'may undermine the perception of the importance and authority of judges in
the military justice system'. It explained further:
the possibility of the appointment of MJs two ranks
subordinate to the DMP and the Registrar will create difficulties with respect
to the actual or perceived independence or authority of a MJ and the court.
Given that rank (and its display) is such a public and significant aspect of
the 'hierarchy of importance' in the Defence Forces, the presently proposed
rankings would indicate publicly that the position of the MJ is of lower status
and importance than that of the DMP. There is a likely risk that accused
servicemen and women will perceive the higher-ranked DMP to be being more
important in the system of military justice than the Judge. This could also
create the appearance of the submissions of the DMP having greater influence
over a MJ, especially if the Defending Officer were also of lower rank than the
DMP.[6]
- Would you like to respond to the Law Council's concerns?
- Could you detail the reasoning behind the decision have an MJ
hold the rank no lower than Commander equivalent?
15. The Law Council recommended that:
no formal rank other than that of "military judge"
to an appointee but to provide that each, including the CMJ, was entitled to
the same privileges and status as a one star appointee. This would import the
primus inter pares principle found in the civilian judiciary. The administrative
authority of the CMJ could be conferred by statute.[7]
- What are Defence's view on this suggestion?
Qualifications of military judges
16. The Law Council of Australia took issue with the
requirement for a MJ to be a serving member:
As there does not appear to be any real reason for requiring
that appointments to the military court be drawn only from the ranks of the
military, allowing appointments of civilian judges, and senior counsel, would
not only improve the number and quality of available judges, it would also
improve the perceived independence of judicial appointments. Under the current
proposal, the comparatively pool of suitably qualified candidates for the
office of MJs will be quickly depleted, which is likely to prevent the adequate
staffing of the military court with MJs.[8]
- The committee can understand the importance of requiring military
judges to have an understanding and knowledge of military law and ADF culture
but would like an explanation for requiring a Military Judge to be a serving
officer?
Class of offences
17. The JAG submitted that although the explanatory
memorandum suggested that minor territory offences would fall into class 3, the
bill 'does not achieve this, given that the proposed Schedule 7 effectively
places all territory offences into either class 1 or class 2.' He
expressed concern that the operation of proposed section 132A(3) is such that:
There is no option for the Director of Military Prosecutions
(DMP) to refer class 3 offences for trial by military judge and jury; and
While the default position under the section is one of trial
by military judge alone, there is no limitation on the maximum sentence that
may be imposed.[9]
- Could you please inform the committee whether the JAG is correct
in his statement?
18. The JAG explained in full:
One might have expected that if the default position was one
of trial by military judge alone, this would be accompanied by a corresponding
limitation on the maximum sentence available on conviction. This would be
analogous to the situation in the civil courts where an indictable matter is
referred for summary trial. Such an arrangement would offer some incentive for
the accused to opt for the more administratively convenient trial by military
judge alone (in that the sentencing powers would be less than on trial by
military judge and jury). If the DMP were given a corresponding right to
require that the matter proceed before military judge and jury (analogous to
proceeding in the civil courts on indictment), then serious class 3 offences
could be referred for trial by military judge and jury such that the maximum
punishment would appropriately be available on conviction.[10]
- Would you like to respond to the JAG's observation?
Trial by judge and military jury
19. The proposed military jury differs significantly
from the current jury system in Australia's criminal law. In Australia the
standard number of jurors in a criminal trial is twelve, the generally accepted
method of ensuring representativeness of the jury is random selection and the
prosecution or defence may prevent jurors presented by the sheriff from being
sworn in as jurors.[11]
The military jury under the proposed legislation is to consist of 6 members as
against 12. Also, a decision is to be made by the agreement of at least a
two-thirds majority—a significantly less onerous requirement than in the
civilian criminal law.
- What measures have been taken to ensure that the protections
offered under the civilian jury system operate to protect the rights of ADF
personnel being tried by a Judge and military jury—a jury of six, majority
decisions of 4 of the 6 jurors?
- If it is correct that an ADF member may be tried by the AMC for a
criminal offence committed overseas, why then does that person not have the
same protections and entitlements offered by a civilian jury?
Miscellaneous matters
Court of record
20. The JAG understood that the original intention was
that the AMC would be a court of record but noted that the bill contains no
provision for it to be a court of record. In his view:
...there is no sensible reason why the AMC should not expressly be
made a court of record and making it so would put beyond doubt its status as a
court and its judicial authority.[12]
- Could you explain the reason for the bill not stipulating that
the AMC is to be a court of record?
Transitional arrangements
21. Assuming that new appointments by the Minister are
contemplated, the JAG was concerned about the transitional arrangements. He
explained that this process:
...has the real prospect of weakening the integrity of those trials
pending the establishment of the AMC. If the JA/DFM concerned wishes to be
considered for appointment to the AMC, there must be a risk of the perception
that the officer concerned will decide issues influenced by the desire for
re-appointment.
The Law Council of Australia also anticipated difficulties with
the appointment process of the military justice system:
It is conceivable that there may be waves of reappointments
every five years, which will stretch the capacity of an organisation the size
of Defence Legal.
It suggested that in order to stagger appointments, existing
appointments expire at compulsory retirement age.
- The committee notes Defence's explanation for the arrangements
for transition to the AMC but would like to know whether the concerns raised by
the JAG and the Law Council were considered and how they were addressed?
Staffing
22. The Law Council of Australia voiced its concern
about the AMC's access to resources:
It is of serious concern that, under the Bill, the court will
not be established with access to suitable resources and an explicitly
acknowledged status, similar to the Federal Magistrates Court. Section 121
requires that staff available to assist the military court be defence members
and persons under the Public Service Act made available by the Secretary. This
does not appear to accord with the original intention that the military court
would have similar status to the FMC.[13]
- Could you respond to the Law Council's concerns?
Chief of the Defence Force Commission of Inquiry
23. In his recent annual report, the JAG expressed
concerns about serving judicial officers being members of Boards of Inquiry and
other types of administrative inquiry processes. He noted that administrative
inquiries are not an exercise of judicial power—they are constrained by their
terms of reference; are not required to apply the rules of evidence; and do not
make binding determinations. He stated:
To use serving judicial officers to conduct administrative
inquiries is, to my mind, to potentially debase or undermine the very
characteristics of their judicial office which make their appointment so
attractive to the Executive.[14]
In his supplementary submission, the JAG again mentioned the
difficulties of using serving judicial offers to conduct administrative inquiries.[15]
- Could you respond to the JAG's concerns about serving judicial
officers being members of a CDF Commission of Inquiry?
24. The Law Council was concerned about the mandatory
requirement for the CDF to conduct a Commission of Inquiry in every case of death
of a member of the ADF particularly as it affected suicide and road deaths
unrelated to defence service. It was of the view that such cases are more
properly suited, at least at first instance, to State Coroners. It argued that
this arrangement would 'require an acknowledgement of the primacy of civil over
military jurisdiction'. Furthermore it argued that the lack of any provision
for the interrelationship between the coronial jurisdiction and Commissions of
inquiry 'may produce curious conflicts in suicide cases where Defence cannot
arrogate to itself the right to conduct a COI before the coroner has determined
that the cause of death was in fact suicide'.
- Would you like to respond to the Law Council's concerns?
- The committee has also sought on a number of occasions
clarification on the role of the coroner in investigating the sudden death of
an ADF member and the relationship and interaction between ADF inquiries and
the relevant coroner. Could you explain the current arrangement with State
coroners and proposed changes to this arrangement?
25. The Law Council also mentioned flaws in the
proposed procedures for terminating COIs and a failure to deal satisfactorily
with vacancies in the membership of COIs, proposed practice and procedure of
COIs and appearances as matters requiring further consideration. In light of
its concerns, it suggested that the process for the CDF commission of Inquiry
and BOI 'remain under the close scrutiny of Parliament from the outset, by
having the essential provisions relating to these inquiries spelt out in the
bill rather than being left for implementation by regulation".
- Is the intention to have the procedures governing the conduct of
a CDF Commission of Inquiry specified in the Act or in regulations? If they are
to be by regulation, could you explain why?
- Could you also comment on the perceived flaws identified by the
Law Council—the proposed procedures for terminating COIs and a failure to deal
satisfactorily with vacancies in the membership of COIs, proposed practice and
procedure of COIs and appearances?
Navigation: Previous Page | Contents | Next Page
Website feedback: web.senate@aph.gov.au
Last reviewed 27 October 2006 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
