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Chapter 1
Introduction
Background
1.1
On 30 October 2003, the Senate referred the matter of the effectiveness
of Australia's military justice system to the Senate Foreign Affairs, Defence
and Trade References Committee for inquiry and report. The committee tabled its
report, which contained 40 recommendations, on 16 June 2005. It was highly critical of Australia's military justice system.
1.2
In October 2005, the government tabled its response to the committee's
recommendations (see appendix 3). It accepted in whole, in part or in principle
30 of the committee's 40 recommendations and indicated that, where required,
alternative solutions would be adopted 'to achieve the intent' of the committee's
recommendations. The government asked the Department of Defence (Defence) to
implement these initiatives within two years, and to report to the Senate committee
twice a year throughout the implementation period.
1.3
Defence established a Military Justice Implementation Team (MJIT), under
the direction of Rear Admiral Mark Bonser, to take responsibility for
implementing the reforms contained in the government's response. It also had
the task of implementing 'ongoing enhancements from a number of previous
internal and external reviews of the military justice system'.[1]
Progress reports
1.4
Since the beginning of the implementation phase, Defence has submitted to
the committee five progress reports on reforms to the military justice system.
The reports were dated:
- April 2006
- October 2006
- April 2007
- October 2007 and
- June 2008
1.5
The main part of each report consisted of a spread sheet that provided
an overview of the progress made in Defence's reform program to that date. The
October 2007 and June 2008 reports are at appendices 4 and 5.
1.6
Following receipt of each of Defence's first three progress reports, the
committee inquired into, and reported on, the reform program.[2]
It should be noted that, unlike its predecessors, the committee's third review
was not comprehensive. The committee decided that it would not hold a public
hearing or produce a detailed report because it wanted to allow Defence
sufficient time to respond to, and implement, recommendations coming out of more
recent subsequent reviews including:
- Report of an Audit of the Australian Defence Force
investigative capability, July 2006 (99 recommendations);
- Final Report of the Learning Culture Inquiry: Inquiry into the
learning culture in ADF schools and training establishments, July 2006 (47
recommendations); and
- Report of the Board of Inquiry into the Death of 8229393 Private
Jacob Kovco at the SECDET Accommodation in the Australian Embassy Compound Baghdad
on 21 April 2006, 27 October 2006 (28 recommendations).
1.7
The Defence Force Ombudsman's report, Management of complaints about
unacceptable behaviour, published in June 2007, made a further 15
recommendations. Defence agreed to the bulk of the recommendations contained in
these four reports.[3]
1.8
As noted earlier, the committee's main report contained 40
recommendations. The above reports add another 189. In addition, there have
been findings of other inquiries or court judgments such as the coroner's
report following the inquest into the death of Trooper Lawrence, Justice Connolly's
findings in Lee v Smith & Ors, the Nias Island Sea King Board of Inquiry and
Justice Crispin's findings in Vance v Air Marshall McCormack. All suggested that
some of the problems identified in the committee's 2005 report were still to be
remedied.[4]
1.9
Moreover, between 2006 and the beginning of 2008, the government
introduced major reforms to Australia's military justice system through the
passage of the Defence Legislation Amendment Bill 2006 and the Defence
Legislation Amendment Bill 2007 and 2008. Although this legislation formed part
of the government's undertakings to reform Australia's military justice system,
it also led to further inquiries and reports by the committee about the nature
and effectiveness of these reforms.[5]
They provided the committee with the opportunity to highlight problems in the
military justice system and in some cases to propose measures to address them.
Final progress report
1.10
Defence's June 2008 progress report completed the government's
undertaking to provide the committee with six-monthly reports on progress
throughout the two-year implementation period. This development marks a significant
stage in the progress made by Defence in reforming its military justice system.
Enormous changes have taken place since 2005 when the committee tabled its
major report into Australia's military justice system. The main changes are:
- the creation of a permanent military court (AMC) which commenced
on 1 October 2007;
- the establishment of the Chief Military Judge (CMJ) as a
statutory position;
- appointment of the first Registrar of the AMC;
- appointment on 12 December 2005 of a Director of Military Prosecutions
(DMP) at the one star rank and as a statutory position;
- the establishment of a Director of Defence Counsel Services 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;
- all legal officers in the Office of the DMP now hold practicing
certificates;
- the right of an accused to elect trial by the AMC from summary
proceedings;
- the right of appeal from summary proceedings to a military judge
of the AMC;
- the establishment of the Australian Defence Force Investigative
Service (ADFIS) headed by a Provost Marshal who was appointed on 14 May 2006;
- establishment of the Defence Fairness and Resolution Branch as
the central management body, outside of normal line-management, for managing
all complaints and grievances lodged by members of the Australian Defence Force
(ADF);
- clearing the backlog of outstanding redress of grievance (ROGs);
- the passage of enabling legislation to establish Chief of the Defence
Force (CDF) commissions of inquiry presided over by a civilian with judicial
experience;
- amendments to the administrative inquiries manual including—
- clarifying and improving guidance on the use of quick
assessments;
- improving guidance on the selection of inquiry officers;
- requiring inquiry officers to produce statements of independence;
- requiring the provision of evidence to an affected person who is
not present at hearings;
- amendments to Defence (Inquiry) Regulations requiring the provision
of a reasonable opportunity for familiarisation to be provided to those coming
before a Board of Inquiry late in the proceedings; and
- the engagement of an expert to examine whether the human rights
of children, with regard to ADF cadets, are being respected.[6]
Public hearings
1.11
Although the implementation phase has come to a close and the MJIT has
been disbanded, ADF's final progress report noted that:
...while most of the new mechanisms and arrangements are now in
place some of these will need time to bed down in practice before optimal
effectiveness can be achieved.[7]
1.12
The committee recognises that over time refinements or adjustments may be
required to the reforms implemented during the last two years. Even so,
following receipt of the ADF's final progress report, the committee agreed to inquire
into and report on the progress to, and implications for the future of, Australia's
military justice system.
1.13
The committee held public hearings on 20 and 26 June 2008 in Canberra. The names of witnesses who appeared are at appendix 2. The Law Council of Australia
made a submission and provided additional information to the inquiry.
1.14
While Defence's final report provided the basis for the committee's
inquiry, the committee also benefited from information contained in the annual
reports of the Chief Military Judge, the Judge Advocate General and the
Director of Military Prosecutions. It also drew heavily on its previous reports
to help gauge progress using its 2005 report as a starting point.
1.15
The committee presents this report in four sections. The first section
examines the ADF's discipline system, the second considers the ADF's
investigative capability, the third covers the administrative system and the fourth
looks at the post-implementation stage of the reforms and their durability.
Acknowledgments
1.16
The committee thanks those who appeared before it at the public hearing
including Captain Paul Willee from the Law Council who has maintained a keen
interest in Australia's military justice system throughout the implementation
period. It also takes this opportunity to acknowledge previous committee
members and chairs who, over many years, have made valuable contributions to
the work of the committee. Senator Steve Hutchins was chair of the committee
during its 2004–2005 inquiry into Australia's military justice system. Senator the
Hon David Johnston and Senator Marise Payne chaired the committee during the
review phase. Lastly, the committee thanks the Chief of the Australian Defence
Force, Air Chief Marshal Angus Houston, for the time he has given to the committee
and to his staff for assisting the committee with its inquiries.
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