Chapter 1
Annual reports of statutory and non–statutory
authorities and government companies
Defence portfolio
Judge Advocate General
1.1
The Judge Advocate General Report for the period 1 January
to 31 December 2007 was tabled in the Senate on 17 June 2008.
1.2
The Office of Judge Advocate General of the Australian Defence
Force (ADF) is a statutory body created under the Defence Force Discipline
Act 1982 (DFDA). The Judge Advocate General (JAG) must be, or have been, a
Federal Court or a Supreme Court judge.
1.3
The functions of the JAG are prescribed by the DFDA. Prior to the
Defence Legislation Amendment Act 2006 (DLAA 06) amendments
creating the Australian Military Court (AMC) came into effect on 1 October
2007, the JAG was responsible for the following functions: making procedural
rules for service tribunals, nominating the Defence Force Magistrate (DFM) for
matters referred for trial at that level, nominating the judge advocate (JA)
for courts martial, and providing the final legal review of proceedings within
the ADF. Most importantly, the JAG provides the annual report on the operation
of the DFDA and related legislation, to Parliament through the minister.[1]
1.4
Since 1 October 2007, the AMC has existed as a standing court
with rules made by the Chief Military Judge (CMJ). The JAG remains responsible
for the making of summary authority rules under DFDA s149 and with providing
the final legal review of summary proceedings. There is no longer an internal
review of proceedings before the AMC. Rather, this has been replaced with an
enhanced right of appeal to the Defence Force Discipline Appeals Tribunal (DFDAT).
The JAG retains responsibility for an annual report to Parliament on the
discipline proceedings as a whole, but the legislation now provides for the CMJ
to report separately so far as the AMC is concerned.[2]
1.5
The Judge Advocate General, Major General the Honourable Justice
Tracey, stated that, in the context of the new military justice environment...
The Office of the Judge Advocate General and its functions are
indicative of the legislature's desire for an appropriate civilian judicial
oversight of the operation of the DFDA and related legislation.
...
The JAG necessarily also plays a significant role in the
promotion of the jurisprudential welfare and education of the ADF.[3]
1.6
The current JAG endorsed the views of his predecessor, Major
General Roberts–Smith, as to the desirability of retaining the broad oversight
role of the JAG, when he said:
...If used properly, the JAG's annual report is an important part
of the self–regulatory machinery to keep the DFDA, and the discipline system as
a whole, current. In this respect, it is quite wrong to envisage those
functions currently performed by the JAG will be equivalently transferred to the
Chief Judge Advocate and the Registrar of Military Justice.
...
The position of JAG has, and could continue to have, complete
independence and a professional objectivity. ...The central notion of the
position of JAG was statutory supervision by senior civilian judicial
authority. That cannot be an attribute of the Chief Judge Advocate or the Director
of Military Prosecutions, who must necessarily be permanent military officers.
If the position is to be discontinued, some thought must be
given as to what mechanism should be put in place to ensure that this
overarching monitoring and updating continues.[4]
Committee view
1.7
The JAG's 2007 annual report again demonstrates the value of
having such a strong independent civilian judicial oversight of the operation
of the DFDA and related legislation.
1.8
The committee finds that the report adequately complies with all
reporting requirements for statutory authorities.
Australian Military Court
1.9
The Australian Military Court Annual Report 2006–2007 for the
period 1 October to 31 December 2007 was tabled in the Senate on 17 June 2008. This is the first report of the Australian Military Court and is submitted
in accordance with section 196C of the Defence Force Discipline
Act 1982 (DFDA).
1.10
The Australian Military Court (AMC) came into existence on 1 October 2007, under amendments to the DFDA effected by the Defence Legislation
Amendment Act 2006 (DLAA 06).[5]
1.11
The DLAA 06 provisions for the Australian Military Court are
that:
(a) Although
not a court within the terms of chapter III of the constitution, the AMC will
be a court of record and its hearings will, subject to some exceptions, be
public. The AMC will be able to sit at any place in or outside Australia.
(b) The AMC
will be headed by the Chief Military Judge appointed by the Governor–General
for a term of ten years. In addition, the AMC will comprise two permanent
military judges and no more than eight reserve part time military judges.
Military judges will also be appointed by the Governor–General for terms of ten
years.
(c) CMJ and
the military judges must be members of the Australian Defence Force (ADF)
holding a rank not lower than brigadier (or other service equivalent) in the
case of CMJ, and lieutenant colonel (or service equivalent) in the vase of the
military judges. The appointments by the Governor–General will be made
following a selection process established under the legislation. The CMJ and
the military judges will be automatically promoted by one rank on the five year
anniversary of appointment.
(d) The
remuneration of CMJ and the military judges to be independently fixed by the
Commonwealth Remuneration Tribunal.
(e) Termination
of appointment as CMJ or a military judge by the Governor–General for cause.
(f) A
military judge will have the ability to try a service offence on his or her own
or with a military jury depending on the seriousness of the offence and the
wishes of the accused.
(g) A
military jury will comprise twelve commissioned officers for serious offences,
or six commissioned officers for less serious offences. If the accused is not
an officer, it will be possible for senior warrant officers to serve as
military jurors.
(h) Majority
verdicts by a military jury will be possible in circumstances where the jury is
split, so long as there is a five-sixth majority in favour of conviction.
(i) The AMC
will be able to receive evidence given by video or audio link.
(j) The CMJ
will be empowered to make rules for the AMC and will report to Parliament on
the operation of the AMC.
(k) Appeals
against punishment or conviction from the AMC will lie to the Defence Force Discipline
Appeal tribunal (DFDAT) (at present, in relation to conviction only, from the DFDAT
to the Full Court of the Federal Court and, with special leave, to the High
Court of Australia). The appeal against sentence is new and will replace the existing
internal review.[6]
1.12
The legislation also provides for a registrar of the AMC to
assist the chief military judge by providing administrative and management
services in connection with proceedings before the AMC.[7]
1.13
The Chief Military Judge, Brigadier I D Westwood, AM, explained
the relationship of the AMC with the Judge Advocate General in the context of
the new environment:
The Prior to the establishment of the AMC, the position of Chief
Judge Advocate (CJA) existed within the office of the Judge Advocate General
(JAG) to provide administrative assistance to the JAG. With the repeal of the
provision creating the position of CJA, there is no formal mechanism for the
support of the JAG and Deputy Judge Advocates General (DJAG). This is, no
doubt, attributable to the fact that no formal decision has been taken as to
the retention, and if retained, as to the role, of the JAG following the
establishment of the AMC.
...
Pending a formal decision on the retention, and if retained, the
role and function of the JAG, I have agreed with the current JAG, Major General
the Honourable Justice RRS Tracey, RFD, that the AMC will provide
administrative support. This support includes bidding for, and maintenance of,
an appropriate budget allocation for the functions of the JAG and staff support
in connection with the JAG's responsibilities for legal reports as part of the
internal review process currently in place for summary proceedings, and in
connection with the JAG's annual report.[8]
1.14
The committee notes that the report describes the transition
arrangements to the AMC of matters referred for trial but not completed before
the AMC came into existence. The report also outlined the procedural and
practice arrangements for the Australian Military Court, including details of
the role of the Registry of the AMC.[9]
1.15
The AMC's annual report records that the number of jury trials is
'likely to considerably exceed the number of matters proceeding to a court
martial in recent years'.[10]
It similarly noted that 'jury trials are considerably more resource intensive
both in terms of the administrative effort required to run the trial and in
terms of the personnel taken from other duties for the trial itself'. It stated
further:
There are practical difficulties in
ensuring appropriate segregation of military jurors when the Court is sitting
in ad hoc premises, particularly having regard to the fact that the new
juries are much larger than the old court martial panels. However, the
procedures for the Court must be sufficiently robust to operate effectively on
active service. To that end I consider it desirable that, where practicable
having regard to the likely complexity of the trial, the Court continue to sit
regionally, even if the facilities are less than ideal.[11]
1.16
The CMJ drew attention to a number of practical difficulties
encountered with the operation of the AMC, including matters associated with
handling multiple charges, the commencement and enforcement of punishments and
orders and the custody of a prisoner before sentence.[12]
He also used the annual report to draw attention to matters he regarded as
requiring 'urgent legislative intervention'.[13]
They included the arrangements for the constitution and selection of military
juries, issues concerned with juror protection and juror misconduct, and the
procedures for dealing with multiple charges. For example, the CMJ stated that:
...it would be highly desirable for
the legislation to address issues of juror protection and to create offences
concerning interference with jurors or misconduct by military jurors in the
discharge of their duties.[14]
1.17
Funding for the AMC for the period of this report was provided by
the Secretary/CDF Group of the Department of Defence, which also provided
assistance to establish the financial management procedures for the new court.[15]
1.18
The CMJ's annual report is an important tool for providing
independent and expert insight into the administration of Australia's military
justice system. This report is an example of how independence and impartiality
can improve the overall function and accountability of the system.
1.19
The committee finds that the first report of the Australian
Military Court adequately complies with all reporting requirements for
statutory authorities.
Director of Military Prosecutions
1.20
The Director of Military Prosecutions Report for the period
12 June to 31 December 2007 was tabled in the Senate on 17 June 2008. This is the first report presented to Parliament by the Director of Military
Prosecutions (DMP).
1.21
The Office of the DMP is a statutory body created under the Defence
Force Discipline Act 1982 (DFDA). The position of the DMP was
created by section 188G of the DFDA, and commenced on 12 June 2006. The office holder must be a legal practitioner with not less than five years experience,
and be a member of the permanent navy, regular army or permanent air force, or
be a member of the reserves rendering full–time service, holding a rank not
lower than the rank of commodore or the rank of brigadier or air commodore.[16]
1.22
Under section 188GA of the act, the Director of Military
Prosecutions has the following functions:
(a) to
carry on prosecutions for service offences in proceedings before the Australian
Military Court (AMC), whether or not instituted by the DMP;
(b) to seek
the consent of the Directors of Public Prosecutions as required by
section 63;
(c) to make
statements or give information to particular persons, or to the public,
relating to the exercise of powers or the performance of duties or functions
under the act;
(d) to
represent the service chiefs in proceedings before the Defence Force Discipline
Appeal Tribunal;
(e) to do anything incidental or
conducive to the performance of any of the preceding functions.[17]
1.23
In addition to his or her function under subsection (1), the DMP
also has
(a) the function conferred on the
Director of Military Prosecutions by or under this act or any other law of the
Commonwealth; and
(b) such other functions as are
prescribed by the regulations.[18]
1.24
The Director of Military Prosecutions, Brigadier L A McDade, reported
on the setting up, location and staffing of the DMP's office. She stated that the
office now has a permanent home, located in the Canberra CBD, and that staffing
matters continue to be addressed.[19]
1.25
The DMP recorded that a number of officers in her office were
transferred out, including two officers deployed overseas, which resulted in
the office carrying their 'extended absence'. With regard to Navy, she
indicated that it was unable to meet its obligations to provide two prosecutors
of lieutenant commander rank throughout 2007.[20]
The committee notes that the DMP is a statutorily independent appointment and
requires adequate resources to carry out her functions effectively. Her annual
report, which clearly raised concerns about staffing matters, is a clear
indication of the value that this reporting regime has in supporting the
independence of the office of the DMP.
1.26
In her report, the DMP referred to the perception of the
independence of her office. She cited the involvement of the Acting Secretary
of Defence in the case of DMP V Registrar of Military Justice:
I am of the view that the interruption of the litigation
by the Acting Secretary of the Department of Defence has the potential to
affect perceptions of my independence.[21]
and
Significantly, the Acting Secretary also directed that 'no
further expenditure on legal expenses is to be incurred before commencing or
maintaining litigation involving other Commonwealth officeholders without my
prior approval'. This could be perceived as affecting my and the Registrar's
independence.[22]
1.27
The committee only became aware of the DMP's concerns about this
incident and how the Acting Secretary's involvement may affect her perceived
independence through her annual report. This incident, however, demonstrates
the value of the DMP's annual report which provided an opportunity for the DMP
to speak frankly and openly about her concerns regarding her perceived
independence or indeed any other matters affecting the operation of her office.
Without commenting on the rights or wrongs of this dispute, the DMP was clearly
able, in a public forum, to voice her concerns about what she believed was
inappropriate interference in the work of her office. The committee strongly
supports this reporting regime.
1.28
In the conclusion to her report, Brigadier McDade stated:
The reporting period has been a time of growth and
consolidation. The Office of the Director of Military Prosecution's physical
and legislative operating environments have been, and will continue to be,
characterised by change as military justice reforms are progressively
implemented. There is much work to do, but I am confident that greater
openness, transparency and independence in the military justice system
generally, and in the prosecution process in particular, has, and will, enhance
service discipline.[23]
1.29
The committee notes that the DMP has implemented a fraud
management plan for the office that covers identified risk and the treatment of
those risks, and reporting and training.[24]
1.30
The report clearly describes the operation and financial position
of the Office of the DMP for the reporting period. The office was adequately
funded during the reporting period and complied with Financial Management
and Accountability Act 1997.[25]
1.31
The committee finds that the report adequately complies with all
reporting requirements for statutory authorities.
Committee view
1.32
In large measure, the responsibility for providing the necessary
visibility and oversight of the ADF's discipline system rests with the
independent CMJ, an independent DMP, and a JAG, who is an independent senior
civilian judge with oversight responsibility. Their independent and critical
voice is vital to the health of the system. They are well placed to identify
and issue early warning signals of problems in the discipline system. In
particular, the requirement for the CMJ, the JAG and the DMP to provide an
annual report to the minister for presentation to the Parliament is an
important means of upholding the integrity of the ADF's discipline system.
Australian Military Forces Relief
Trust Fund
1.33
The Australian Military Forces Relief Trust Fund Annual Report
2006–2007 was tabled in the Senate on 11 March 2008. The report was submitted
in accordance with section 9 of the Commonwealth Authorities and
Companies Act 1997.
1.34
The Australian Military Forces Relief Trust Fund, which was
established by the Services Trust Funds Act 1947, is a commonwealth
statutory authority within the general government sector. It is directed by
trustees appointed by the minister. The fund is administered by a secretariat
under the direction of trustees and is assisted by a regional committee
structure. The fund provides financial services to members who have served in
the army, or in association with the army. The benefits to members and their
families are in the form of low interest loans and welfare grants.[26]
1.35
The committee notes that the trustees have developed and
established a risk management plan. This is in accordance with the requirements
of the commonwealth that departments and agencies develop and implement
appropriate risk management strategies for their particular operations.
According to the trustees, the fund's insurer, Comcover, have indicated that
the plan is appropriate for a small agency such as the AMF Relief Trust Fund.[27]
1.36
The report clearly describes the operation and financial position
of the fund for the reporting period. The trustees reported no significant
changes to the fund’s state of affairs or principal activities during the
period under review.[28]
1.37
The committee finds that the report adequately complies with all
reporting requirements for statutory authorities.
Defence Force Remuneration Tribunal
1.38
The Defence Force Remuneration Tribunal Twenty–second Report 2006–2007
was presented to the President of the Senate on 20 December 2007 and tabled in the Senate on 12 February 2008. The tribunal was established in 1984 under
section 58H of the Defence Act 1903. The functions of the
tribunal under the act are ‘to inquire into and determine the salaries and
relevant allowances to be paid to members of the Australian Defence Force, and,
to inquire into and make determinations in respect of prescribed matters that
have been referred to the tribunal’.[29]
1.39
The tribunal consists of three members appointed by the Governor–General.
In accordance with the relevant legislation, the president is a presidential
member of the Australian Industrial Relations Commission. The other members are
to include a person who is experienced in industrial relations matters and a
person who has been a member of the ADF.[30]
1.40
The tribunal considers that...
in all its work it has regard to the special nature of ADF
employment and the need to ensure that ADF members are treated fairly and
equitably. The independent judgement and scrutiny which the Tribunal brings to
the determination of matters coming before it is an important safeguard for the
ADF, and in particular, for its members.[31]
1.41
In its report, the tribunal provided a brief yet thorough account
of all ‘matters considered’ during the reporting year. It disclosed information
on the outcomes of each review and on the negotiating process that occurred
between the parties involved. The tribunal also described the various
inspections and visits which were conducted as part of their decision-making
process.[32]
1.42
The tribunal has again presented a report that is well structured
and provides clear and concise information in an ‘easy–to–use’ format. The committee
finds that this report adequately complies with all reporting requirements for
statutory bodies.
Royal Australian Air Force Welfare
Trust Fund
1.43
The Royal Australian Air Force Welfare Trust Fund Annual Report
2006–2007 was tabled in the Senate on 11 March 2008 in compliance with
reporting requirements under section 34 of the Services Trust Funds Act 1947.
1.44
The RAAF Welfare Trust Fund is a commonwealth statutory authority
within the general government sector and is managed by trustees who are
appointed by the minister. Since its inception in 1947, as part of the RAAF
Chaplain Branch program, the fund has contributed to the welfare and morale of
RAAF members and former members and their families, by providing to them loans
or grants in times of need.
1.45
The fund’s head office is in Canberra and is supported by a
network of regional committees. The committees are usually located at each RAAF
base to provide benefits to eligible persons in Australia and to personnel
based overseas.[33]
1.46
The committee notes that trustees have established a risk
management plan:
...in line with the commonwealth's endeavours to make risk
management an integral part of everyday business practice. The fund participated
in the Comcover's (the commonwealth's insurable risk managed fund) 2007 risk
management benchmarking programme and received an overall performance rating of
satisfactory. The fund's risk management policy and procedures were reviewed by
the trustees in February 2007.[34]
1.47
The trust stated that there were no significant changes in the fund's
state of affairs or principal activities during the financial year.[35]
1.48
The committee finds that the report clearly describes the trust’s
activities for the year and adequately complies with all reporting requirements
for statutory authorities.
Royal Australian Navy Relief Trust
Fund
1.49
The Royal Australian Navy Relief Trust Fund Annual Report
2006–2007 was tabled in the Senate on 11 March 2008. The Trustees of the Fund submitted their report in compliance with reporting requirements under
the terms of section 34 of the Services Trust Funds Act 1947.
1.50
The Navy Trust Fund is a commonwealth statutory authority within
the general government sector which is managed by trustees who are appointed by
the minister. It was established by the act to provide benefits for members of
the Australian Defence Force who served in the Royal Australian Navy and to the
dependants of such members.[36]
The trust provides assistance in the form of interest free loans and grants for
a variety of purposes.[37]
1.51
The committee notes that the trust has commenced the development
of an electronic online loan application and reporting system, which will cost
$22,245. The system will become fully operational during the 2007–2008
financial year.[38]
1.52
The report clearly sets out the trust’s activities and financial
operations for the year. The trust stated that there were no significant
changes in the fund's state of affairs or principal activities during the
financial year.[39]
1.53
The committee finds that the report clearly describes the trust's
activities for the year and adequately complies with all the reporting
requirements for statutory authorities.
Foreign Affairs and Trade portfolio
Bilateral councils
1.54
There are nine bilateral foundations, councils and institutes
(FCI) within the Department of Foreign Affairs and Trade (DFAT). The first FCI,
the Australia–Japan Foundation, was created as a statutory body under the Australia–Japan
Foundation Act 1976. Since then, the following FCIs have been established:
Australia–China Council, Australia–India Council, Australia–Indonesia
Institute, Australia–Korea Foundation, Council on Australia–Latin America Relations,
Council for Australian–Arab Relations, Australia–Malaysia Institute and Australia–Thailand
Institute.
1.55
The FCIs 'promote people–to–people links and accurate,
contemporary images of Australia in support of the government’s foreign and
trade policy goals'.[40]
They operate both in Australia and abroad to shape perceptions of Australia
held by individuals and organisations overseas. As DFAT explained:
FCI projects are expected to foster
perceptions of contemporary Australia as scientifically, technologically and
educationally advanced, economically enterprising and culturally diverse. FCI
activities are required to build networks and contacts, influence
opinion-makers and facilitate exchange of knowledge.[41]
1.56
During the previous reporting period, three FCIs tabled reports
in Parliament: Australia–Japan Foundation (see Report on Annual Reports,
No 1 of 2007), Australia–Indonesia Institute and Australia–China
Council. At that time, the committee noted that not all FCIs were required to
have their reports tabled in Parliament.
1.57
The committee now finds that the nine FCIs are not required to
table a report in Parliament, but are required to provide an annual program
report to the minister. Each program report is posted to the DFAT website. The
department administers the funds of each FCI. The Australian National Audit
Office, as part of its examination of the department, examines the financial
affairs of each FCI; the department reports on the activities and financial administration
of these funds in its annual report.
1.58
It should be noted that in its report on Australia's public
diplomacy, tabled in August 2007, the committee, recognising that
accountability is an important aspect of government funding, was critical of
the reporting regime for FCIs. It stated that the section on the FCIs in DFAT's
annual report conveys very little information especially on expenditure.[42]
1.59
In its 2007 report on Australia's public diplomacy, the committee
recommended that for increased accountability, the FCIs be required to produce
an annual report and for the minister to table the report in Parliament. This
requirement would not alter the current arrangement of DFAT's annual report
containing a summary of the FCI reports.[43]
The government is yet to respond to the committee's recommendation.
1.60
The committee takes this opportunity to draw to the government's
attention the committee's concern about the reporting arrangements for FCIs and
to alert DFAT to the importance of providing adequate information in their
annual report on these agencies.
Senator Mark Bishop
Chair
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