Chapter 1

Annual reports of statutory and non-statutory authorities and government companies

Defence portfolio

Australian Military Court

1.1        The Australian Military Court report for the period 1 January to 31 December 2008 was tabled in the Senate on 16 June 2009. This is the second report of the Australian Military Court and is submitted in accordance with section 196C of the Defence Force Discipline Act 1982 (DFDA).

1.2        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). 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 (CMJ) 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 case 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.[1]

1.3        The legislation also provides for a registrar of the AMC to assist the CMJ by providing administrative and management services in connection with proceedings before the AMC.[2]

AMC caseload

1.4        In his report on the AMC, the Chief Military Judge, Brigadier I D Westwood AM, detailed the number of cases before the Court during the reporting period. There were 114 matters referred for trial and 92 trials were conducted:

These comprised 28 contested trials and 64 pleas of guilty. Of these matters, 15 were jury trials (two of which were 12 person juries and 13 of which were six person juries). There were 20 matters withdrawn by the DMP prior to trial. Military jury trials were conducted at Defence establishments in Darwin, Townsville, Sydney, Canberra, Melbourne, Adelaide and Perth. No AMC proceedings were conducted outside of Australia during the reporting period. Trials by military judge alone were conducted at most major Defence establishments around Australia.[3]

1.5        Four summary appeals were lodged but none was finalised during the reporting period. The CMJ observed that:

Both the total number of matters dealt with by the Court, and the proportion of those proceeding to trial with a military jury are considerably greater than would have been expected on the basis of the matters proceeding to trial under the old arrangements before court martial and Defence Force magistrate.[4]

1.6        The first AMC jury trial commenced on 23 June 2008.[5] In his annual report, the judge advocate general also referred to the court's caseload (see JAG, paragraph 15).

Military juries

1.7        In its fourth progress report on reforms to Australia's military justice system and in its previous report on annual reports, the committee noted the CMJ's comments that the number of jury trials is 'likely to considerably exceed the number of matters proceeding to a court martial in recent years'. At that time, he also 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'.[6] The CMJ raised the same matter in his current annual report, noting that 'jury trials are much more administratively complex to arrange than trial by judge alone'. He explained further:

The Registrar estimates that 78 hours are required for the preparation and pre-trial administration of a military jury trial. On average 74 personnel are screened by the Registrar's staff for each military jury trial. This can be contrasted with the average of 14 hours for the preparation and pre-trial administration of a trial by military judge alone. Case management conferences were undertaken by the Registrar in respect of the more complex matters in order to list the matter as 'ready for trial'. In respect of most military jury trials pre-trial directions hearings were conducted with the military judge presiding.[7]

1.8        The CMJ reported, however, that although the listing arrangements did not operate at first as effectively as he would have desired, 'these difficulties were addressed by the end of March' and he was pleased with the number of matters which were heard during the reporting period.[8]

1.9        The committee in its previous report on annual reports recorded that there were initial problems with arrangements for the constitution and selection of military juries. Further to this, CMJ reported that during the 2007 reporting period, the registrar had written to the service chiefs seeking their support for the panelling of military juries on a tri-service basis. The issue was not resolved during 2007. By mid March 2008, each of the service chiefs had agreed to such an approach as an interim measure, pending appropriate legislation. CMJ then issued drafting instruction to parliamentary counsel on amending AMC rules to provide for the revised jury arrangements. The new rules commenced on 6 June 2008 and have operated successfully since that time.[9]

1.10      He noted further his previous reference to the potential disadvantages in having military jury related matters dealt with in the AMC rules as opposed to being covered in legislation.

...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.[10]

1.11      In his current report, he noted, however, his understanding that 'during the 2009 calendar year steps will be taken to have many of the requirements for military juries transferred from the AMC rules to the DFDA'.[11]

1.12      In regard to both matters, the CMJ was pleased to report that:

...there is currently policy approval to make legislative provision for the juries. It is proposed that this legislation will address panelling and constitution of military juries, and the issues of juror protection and the creation of appropriate offences concerning interference with jurors or misconduct by military jurors in the discharge of their duties that I noted in the 2007 report as requiring action. During the reporting period the jury arrangements were governed by the revised AMC Rules.[12]

1.13      The CMJ explained the relationship of the AMC with the JAG in the context of the new environment:

In my report for 2007, I referred to my agreement with the JAG Major General the Hon Justice RRS Tracey RFD, that the AMC would provide his office with administrative support pending a formal decision on the retention, and if retained, the role and function of the JAG. Those arrangements continued during the reporting period such that the AMC bid for and maintained an appropriate budget allocation for the functions of the JAG and provided staff support in connection with the JAG's responsibilities for legal reports as part of the (now superseded) internal review process for summary proceedings, and in connection with the JAG's annual report to Parliament.[13]

Response to committee's recommendations

1.14      The CMJ cited two recommendations made by the committee in its fourth progress report on reforms to Australia's military justice system. They were:

Recommendation 8—The committee recommends that the Government amend the DFDA to require the AMC to publish material such as court lists, transcripts of proceedings and judgements in a readily and easily accessible form.[14]

Recommendation 9—The committee recommends that the CMJ appear before the Committee to give evidence on the operation of the AMC and matters raised in the CMJ's annual report when invited by the committee to do so.[15]

1.15      He noted that he had been consulted in connection with the government's response to the recommendations but that the response had not been released.[16] Since the tabling of the CMJ annual report, the government has made public its response.

1.16      The government substantially agreed with recommendation 8 and indicated that the Act will be amended to provide for the publication of the court lists, rulings, findings and sentencing remarks, subject to any non-publication orders made by a military judge. The government did not agree that full transcripts of proceedings should be published as a matter of course for reasons of privacy, practicality (particularly if a new trial were to be ordered) and because it is inconsistent with the practice in the civil courts.

1.17      The government agreed with the committee's recommendation that the CMJ appear before the committee when invited to do so.

AMC—High Court decision

1.18      Since the tabling of this year's AMC annual report, the High Court has ruled that that the provisions of Division 3 of Part VII of the Defence Force Discipline Act 1982—Australian Military Court—are invalid. This matter will be discussed in following parts of this report.

Committee view

1.19      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.

1.20      The committee finds that the second report of the Australian Military Court adequately complies with all reporting requirements for statutory authorities.

Judge Advocate General

1.21      The Judge Advocate General report for the period 1 January to 31 December 2008 was tabled in the Senate on 16 June 2009.

1.22      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.

1.23      The functions of the JAG are prescribed by the DFDA. Prior to the Defence Legislation Amendment Act 2006 (DLAA 06) creating the Australian Military Court (AMC), 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 provided the annual report on the operation of the DFDA and related legislation to Parliament through the minister.[17]

1.24      Since 1 October 2007, the AMC has existed as a standing court with rules made by the Chief Military Judge (CMJ). 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 retained 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.[18]

1.25      At that time, the JAG was also responsible for the making of summary authority rules under DFDA section 149 and with providing the final legal review of summary proceedings. With the passage of the DLAA 08, those functions were reduced further to give effect to the ongoing reforms to the military justice system.[19]

Funding

1.26      In light of the new military justice environment, the Judge Advocate General, Major General the Honourable Justice Tracey, stated:

As I indicated in my report for 2007, the OJAG is separate from the AMC. However, the CMJ, Brigadier Ian Westwood AM, has agreed that the Court will continue to provide administrative support to the JAG and what was the separate OJAG budget was, during the reporting year, managed as part of the Court's finances. As I noted last year, this is not ideal, but I nonetheless consider it appropriate in terms of resources. While these informal arrangements between the Court and OJAG are not desirable on a long term basis, both CMJ and I believe that the arrangements provide a cost effective short term solution pending a final decision on the role (if any) for the JAG once the current military justice reforms are implemented.[20]

1.27      The CMJ also referred to this arrangement in his annual report (see CMJ, paragraph 1.12).

Establishment of the Australian Military Court

1.28      The JAG outlined the progress made in establishing the court. He noted that trials by judge alone proceeded satisfactorily throughout the year and, after overcoming difficulties with military jury trials, the court 'was able to exercise jurisdiction over the full range of offences provided for the DFDA'. He reported that in October 2008, the court assumed additional responsibility for appeals from decisions of summary authorities.

1.29      He drew attention, however, to the mounting workload of the court and suggested that urgent consideration be given to the appointment of additional military judges.[21]

Evidence in proceedings before a summary authority

1.30      In a number of reports, the committee has raised concerns about the rules of evidence in proceedings before a summary authority. In September 2007, it found with regard to the proposed provisions governing the rules of evidence that:

The language is clear about not being bound by the rules of evidence but there is no equally forcefully statement in the provision about natural justice and procedural fairness. There is no stated requirement for a summary authority to observe as a minimum the principles that underpin the rules of evidence.[22]

1.31      In light of the committee findings, the bill was amended. In its fourth progress report, the committee again referred to the rules of evidence in proceedings before a summary authority. This time the committee was concerned with the actual rules themselves. It stated:

The committee is firmly of the view that formulating the simplified rules of evidence was no easy task especially given the limited time available to have them ready. It takes particular note of Captain Willee's concern that when deadlines are so tight, 'they almost invite error'. The committee believes that an expeditious promulgation of the modified rules of evidence was desirable but not at the expense of sound and considered deliberation. At this late stage in the committee's consideration of the evidence, it has not been able to examine in detail these rules of evidence or to be satisfied that the concerns raised by the Law Council in August have been adequately addressed. As noted previously, the rules were registered on 18 September to come into operation on 20 September. In chapter 5, the committee considers the importance of consultation in drafting legislation, including subordinate legislation.[23]

1.32      The committee endorsed the JAG's view that these rules must provide sufficient detail and 'clarity that can be understood by those who have to implement them'. The difficulty distilling such a large and comprehensive body of legislation into clear and concise rules in a short timeframe underlines the need for them to undergo scrutiny.[24]

1.33      In his annual report, the JAG commented on the Summary Authority Rules (SARs). He noted that 'Only time will tell as to how effectively the new arrangements will work in practice'. The JAG stated, however, his belief that:

...the new SARS address the legislative intent, and strike an appropriate balance between affording accused persons being tried at the summary level with appropriate legal safeguards while nonetheless relieving summary authorities from an obligation to comply with formal legal standards that were, in practice, largely unattainable.[25]

Appeals from Summary Authority

1.34      The JAG agreed with the views of a previous JAG, Major General Roberts-Smith, who argued that 'the automatic review [of all proceedings resulting in a conviction] was an important safeguard in the case of summary proceedings which are conducted by officers without legal qualifications'. The current JAG supported the CMJ in his suggestion that 'consideration be given to reinstating the automatic review process in connection with summary proceedings, at least in limited form'.[26]

Role and function of the JAG

1.35      In his 2007 annual report, the JAG 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.[27]

1.36      He endorsed the views of his predecessor, Major General Roberts–Smith, as to the desirability of retaining the broad oversight role of the JAG:

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.[28]

1.37      During its inquiry into the progress of reforms to Australia's military justice system, the committee took evidence from the JAG on the future role of his office. It noted that:

Consistent with the views of his predecessor, the current JAG, Major General Richard Tracey, strongly supported the retention of the office as an important means for achieving 'a just and transparent military justice system'. He traced the history of the office of the Judge Advocate General noting its evolution over time to 'reflect changes in the military discipline system'. He was of the view that the JAG could have a continuing important role especially through the JAG's annual reports to parliament which 'provide an independent judicial insight into military discipline within the ADF'.

Both the CMJ and the DMP are permanent military officers, while the JAG is a senior civilian judicial officer. In contrast to the reports of the CMJ and the DMP on particular aspects of the discipline system, the JAG’s report provides oversight and assessment of the operation of the military discipline system as a whole and any related legislation within the reporting year. The JAG is also well placed to make comparisons between the ADF military discipline system and any relevant developments in military discipline overseas.[29]

1.38      The committee also noted the views of the JAG that his role need not be limited to a reporting function. He suggested that the experienced senior civilian judicial standing and independence of the JAG could be used to enhance the fairness, quality, efficiency and effectiveness of the Australian military discipline system into the future. It concluded:

For a number of years, the committee has commended the JAG's annual report as an important means of providing the necessary judicial oversight of the DFDA. With the creation of the AMC and the appointment of a CMJ, the committee urges the government to ensure that the level of independent civilian oversight of Australia's military justice system continues. It is of the opinion that the JAG has a vital and valuable role to play in providing this oversight and that this critical oversight work continue. Nevertheless, the committee supports the CDF's proposal to refer the matter of the JAG to the newly created review team.[30]

AMC—High Court decision

1.39      The committee notes the High Court's ruling that the Australian Military Court is invalid. During this time of uncertainty, the importance of the JAG's role as a highly qualified judge who provides independent judicial oversight of the ADF's discipline system is magnified.

Committee view

1.40      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.

1.41      The committee finds that the report adequately complies with all reporting requirements for statutory authorities.

Director of Military Prosecutions

1.42      The Director of Military Prosecutions report for the period 1 January to 31 December 2008 was tabled in the Senate on 16 June 2009. This is the second report presented to Parliament by the Director of Military Prosecutions (DMP).

1.43      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; Brigadier L A McDade commenced her five year appointment on 12 June 2006.[31] 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, brigadier or air commodore.[32]

1.44      Under section 188GA of the act, the DMP 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 (DFDAT);

e) to do anything incidental or conducive to the performance of any of the preceding functions.[33]

1.45      In addition to his or her function under subsection (1), the DMP also has:

a) the function conferred on the DMP by or under this Act or any other law of the Commonwealth; and

b) such other functions as are prescribed by the regulations.[34]

1.46      Brigadier L A McDade reported that during the period under review, minor amendments and revisions were made to the prosecution policy. The changes relate to the legislative amendments made to the DFDA on 20 March 2008. The new policy, which includes a prosecution and disclosure policy, is appended to the annual report.[35]

1.47      The report clearly describes the operation and financial position of the Office of the DMP (ODMP) for the reporting period. The office was adequately funded during the reporting period and complied with Financial Management and Accountability Act 1997 (FMA Act).[36]

Prosecution policy

1.48      The DMP also reported on a request relating to the prosecution policy from the Inspector-General of the Australian Defence Force (IGADF):

During the reporting period the Inspector-General of Australian Defence Force (IGADF) requested that I consider whether section 188GE of the DFDA, which empowers me to issue directions and guidance to Service police investigators and also to prosecutors, made it appropriate for me to issue a prosecution policy for the whole of the ADF.

While there will be much in common between my prosecution policy and the ADF prosecution policy for summary trials, each policy will include matters which are unique to it and which either have no bearing on or would be inappropriate to be included in the other policy. Therefore, I advised IGADF that I would not issue a prosecution policy for the whole of the ADF.[37]

1.49      The DMP noted that during the reporting period all legal officers at ODMP either already held, or obtained soon after their posting, an ACT practising certificate.[38] She also provided the following data for the reporting period:

• 219 matters were received and 196 matters were completed;[39]
• 13 jury trials, 14 judge alone trails and 63 sentencing hearings were conducted at various locations in Australia;[40]
• 78 matters were not proceeded with due to the determination that there were no reasonable prospects of success, or that to prosecute would not have enhanced or enforced service discipline;
• 46 matters were referred back for summary disposal; and
• 5 matters were referred to civilian Directors of Public Prosecution.[41]

Significant cases

1.50      The DMP's report cites a number of significant cases heard during the reporting period. These cases provide a valuable insight into matters coming before the military courts and hopefully will go some way to educating members of the ADF about their military discipline system.[42]

Role of superior officers

1.51      In her report, the DMP referred to the role of superior authorities. Section 5A of the DFDA permits 'superior authorities' to represent the interests of the ADF in relation to charges that are being considered by the DMP for trial. The CDF and service chiefs have appointed a number of superior authorities who are usually senior officers of one or two-star rank. The DMP explained that the superior authority construct is unique:

Their purpose is to make representations to me essentially on matters which would equate to 'public interest' considerations for prosecution in a civilian criminal court. None of my civilian counterparts have a similar 'adviser' on public interest matters.

Although there is nothing in the DFDA or any other legislation that which obliges me to do so, since being appointed DMP I have as a matter of routine, consulted with the relevant superior authority when considering charges in respect of an ADF member.

...

The feedback I have received from superior authorities generally has been that my consultation has been worthwhile, in that it notifies them of charges being considered by me. Of more than 200 letters sent to superior authorities, I have received only one negative response. On this basis, I have determined to continue to engage with superior authorities.[43]

Matters for consideration

1.52      The DMP raised a number of matters that in her view warrant close consideration. The DMP:

• recommended that it is an appropriate time to review the investigative authority of Inspector General Division (IGD) into matters of fraud and to determine whether, given the creation of the Director Defence Counsel Services, ADFIS, DMP and the AMC, it remains appropriate for IGD to continue to investigate fraud and related offences allegedly committed by ADF members. This is primarily where the amount involved is greater than $20,000 or at all;[44]
• suggested that the DFDA be amended to create a credit card offence which can be tried either summarily or before the AMC—the DMP has received briefs of evidence disclosing Defence travel card, Defence purchasing card or Defence fuel card misuse for less than $100;[45]
• recommended the inclusion in the DFDA of aggravated assault provisions so that the criminal responsibility provisions for aggravated assault and common assault under the DFDA are uniform;[46]
• suggested that the DFDA be amended to grant service tribunals the capacity to impose global punishments in appropriate circumstances;[47]
• noted that there appears to be no-one responsible for ensuring that a member who is fined by the court actually pays the fine, or a member reduced in rank by the court has his rank reduced and that this situation requires attention;[48]
• recommended that the AMC investigate the use of Commonwealth court facilities in appropriate regions and that more matters be listed for trial in Canberra at the AMC;[49] and
• opposed a possible amendment to the DFDA that would provide for a minister to issue directions and guidelines to DMP—the grounds for opposition include that 'the office of DMP would be subject to the directions and guidance of a minister or authority who does not hold legal office'.[50]

DMP's assessment

1.53      In the conclusion to her report, Brigadier McDade stated:

In my previous report, I indicated that that ODMP had undergone a period of growth and consolidation. My previous report also expressed confidence that greater openness, transparency and independence in the military justice system and the prosecution process would serve to enhance service discipline. It is my belief that the 'bedding down' of the operation of the AMC and ODMP, and the changes to the DFDA implemented in the latter half of 2008, go a long way to providing the ADF with a military system able to meet the demands of the future military operations and the expectations of the Australian and international communities. I look forward to the continued refinement of Service discipline in this context.[51]

1.54      The committee finds that the report adequately complies with all reporting requirements for statutory authorities.

Committee view

1.55      In large measure, the responsibility for providing the necessary visibility and oversight of the ADF's discipline system rests with an 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.

1.56      The committee notes that the government has agreed to the committee's recommendation that 'the Defence Act 1903 be amended to include in section 110 the requirement for the IGADF to, as soon as practicable after 31 December each year, prepare and give to the minister, for presentation to the Parliament, a report relating to the functions of his office as set out in section 110C (1)'. For a number of years, the committee has recommended the introduction of such a reporting regime for the IGADF, and welcomes the change.

Recent development—decision of the High Court

1.57      As noted previously, the High Court has ruled that the AMC is constitutionally invalid. This decision has enormous implications for the Chief Military Judge, the Director of Military Prosecutions and the Judge Advocate General. The committee will have to wait for legislation addressing this matter before it can make any definitive findings. Nonetheless, it takes this opportunity to refer to a number of its findings including its report on Australia's military justice system tabled in June 2005. In this report on the effectiveness of Australia's military justice system, the committee recommended that:

• 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;[52] and
• the permanent military court to be created in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality.[53]

1.58      In 2006, the Defence Legislation Amendment Bill 2006 was introduced in Parliament. Its main purpose was to give effect to the government's undertaking to enhance Australia's military justice system. It proposed to replace the current system of trials by Courts Martial and Defence Force Magistrates with an 'Australian Military Court'. The committee identified a raft of concerns with the proposed legislation and stated unequivocally:

...the government settled for the barest minimum reforms required to its service tribunals to escape a constitutional challenge. In so doing, the committee takes the view that, in striving for the minimum, the government has not removed the risk that at some stage the High Court may find that the AMC is constitutionally invalid.[54]

1.59      In light of the committee's findings, the bill was amended but was not referred to the committee for inquiry and report. The bill as amended was passed by the Parliament and received assent on 11 December 2006.

1.60      The High Court's decision on the invalidity of the AMC has cast a great deal of uncertainty over the operation of ADF's disciplinary system. The committee recognises the need for the government to give urgent consideration to this matter. Despite this need for immediate attention, the committee takes this opportunity to urge the government to ensure that it consults widely, especially with independent experts in military and in constitutional law, before introducing legislation designed to address the long-term future of the AMC.

ASC Pty Ltd

1.61      The ASC Pty Ltd Annual Report was tabled in the Senate on 3 December 2008.

1.62      The ASC Pty Ltd (formerly known as Australian Submarine Corporation), established in 1985, is Australia's largest specialised defence shipbuilding organisation. It is widely known as the designer and builder of the world's best conventional submarines.

1.63      It is a non-statutory, proprietary company limited by shares registered under the Corporations Act and is subject to the Commonwealth Authorities and Companies Act 1997 (CAC Act). All the shares issued in the capital of ASC are owned by the Minister for Finance and Deregulation. In accordance with its constitution, ASC is subject to direction by the minister.[55] On 11 June 2004, ASC was proclaimed as a government business enterprise under the CAC Act.[56]

1.64      In his chairman's report, Mr John Prescott, AC, stated that the 2007/2008 year was the most notable for the company's sizeable investment in its infrastructure:

The opening of ASC West on 30 April 2008 marked a fundamental change in the way ASC will conduct its submarine business in Western Australia. This $35 million purpose-built facility comprises a submarine maintenance hall, workshops, stores warehouse and offices. It amalgamates three different premises into one consolidated, cutting-edge complex and will enable us to achieve higher levels of efficiency and effectiveness.

...

Meanwhile, construction of our $100 million shipyard at Osborne commenced during the year. Scheduled for completion in late 2009, our world-class shipbuilding facility will be the future of all Hobart Class Air Warfare Destroyer (AWD) production.[57]

1.65      The committee notes that ASC is positioning itself to return to the private sector. The chairman stated that, for eight years, ASC has worked to overcome various impediments to the company's viability and long-term growth, in preparation for the privatisation of the company:

The Board and management of ASC continue to fully support ASC's return to the private sector. It is hoped that the sale will be completed during the 2008/2009 financial year, thus enabling the company to focus on upcoming challenges of the AWD program and next generation submarine.[58]

1.66      ASC has presented a comprehensive and informative report. The committee finds that it adequately complies with all reporting requirements for non-statutory company.

 

Senator Mark Bishop

Chair

Navigation: Previous Page | Contents | Next Page