Chapter 1
Annual reports of statutory and non-statutory authorities and government
companies
Defence portfolio
Director of Military Prosecutions
1.1
The Annual Report of the Director of Military Prosecutions for the
period 1 January to 31 December 2009 was tabled in the Senate on 22
June 2010. This is the third report presented to Parliament by the Director of
Military Prosecutions (DMP).
1.2
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.[1]
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.[2]
1.3
Under section 188GA of the DFDA, the Director of Military Prosecutions
has the following functions:
a) to carry
on prosecutions for service offences in proceedings before a court martial or a
Defence Force magistrate, whether or not instituted by the Director of Military
Prosecutions;
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 this
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.[3]
1.4
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.[4]
Prosecution policy and the High
Court decision
1.5
Brigadier McDade reported that during the period under review,
amendments were made to the prosecution policy. The most significant amendment
was made after the High Court decision in Lane v Morrison. On 26 August
2009, the High Court of Australia in a unanimous decision declared invalid the
provisions of Division 3 of Part VII of the Defence Force Discipline Act
1982 (DFDA). The effect of that declaration was that the Australian
Military Court (AMC) was invalid.[5]
1.6
As a consequence, the ADF had no superior forum to try service offences
referred to the DMP for trial. In September 2009 remedial legislation was
passed and commenced on 22 September 2009.[6]
1.7
The DMP noted that the High Court decision did not effect the role and
function of the Office of the Director of Military Prosecutor (ODMP) and that it
continued despite the demise of the Australian Military Court:
The return to the command system did not present any
significant difficulties to the ODMP. The office quickly adapted its procedures
to accord with the legislative amendments.[7]
The challenge was to maintain control of the workload, whilst
making sure that there was no diminution in the standard of the prosecutorial
process and subsequent prosecutions.[8]
1.8
The DMP thanked all her staff for their work and commitment to the long
term military discipline solution.[9]
Choice of forum for a hearing
1.9
The Committee notes that there has been criticism of the number of
courts martial being convened in lieu of Defence Force Magistrate (DFM)
hearings.
1.10
The DMP reported that since the demise of the Australian Military Court,
the choice of forum (General Court Martial, Restricted Court Martial or Defence
Force Magistrate) for a hearing has become a matter for her to determine. Prior
to the creation of the position of DMP, this function was performed by
convening authorities.[10]
1.11
The DMP explained that, in the interest of military discipline and the
understanding of it by the general Defence community, it was important to
address these concerns openly and publicly.[11]
It is the case that if one goes back over the last ten years
of the operation of the command based system most, if not all, hearings were
conducted by DFM. Those numbers have been raised at various forums to justify
criticism of the use of general and restricted courts martial. However, the
comparison is flawed because no analysis has been undertaken to establish how
the forum for trial was selected during that period.
In my experience, the tendency historically was for DFM
trials to be recommended to Convening Authorities, because they were
administratively easier and 'less disruptive to the normal activities of members
of the Defence Force than is a trial by court martial'...The result of this
practice may have created a misapprehension that a DFM was the accepted forum
for all nature of offending, and courts martial were only to be convened in
exceptional circumstances.
...
Whereas the intention of the Parliament in creating DFMs was
not to cease courts martial, but to create a separate tribunal for the trial of
less serious offences for those offences that were not 'manifestly injurious to
service discipline', and generally for administrative convenience.[12]
1.12
At a meeting of the Military Justice Coordination Committee (MJCC) in
December 2009, Brigadier McDade expressed the view that 'discipline was an
inherent function of command and not the sole responsibility or province of
legal officers'. She further asserted that it was important that general
service officers be intimately involved in the administration of discipline in
the ADF at all levels.[13]
1.13
According to the DMP, the MJCC 'supports the DMP's reasoning for factors
to be considered when deciding upon an appropriate tribunal to deal with a
matter of which she has carriage'.[14]
Independent review of the military
justice system
1.14
In March 2008, CDF appointed Sir Laurence Street, AC, KCMG, QC and Air
Marshal Leslie Fisher (Retd), AO to undertake a review of the military justice
system (the Street/Fisher Review).
1.15
In January 2009, the DMP was given the opportunity by Sir Laurence
Street and Air Marshal Leslie Fisher to respond to the proposed recommendation:
DMP discontinue the practice of appearing in the conduct of
prosecution; a permanent or reserve officer should be briefed on each occasion
to appear for the prosecution.[15]
1.16
Brigadier McDade disagreed with the recommendation and her response to
the proposed recommendation was that, given her statutory independence, the
question of whether she prosecutes is her decision. She explained:
The DFDA provides me with the legislative authority to
prosecute by virtue of section 188GB.
I have carefully selected the matters that I have personally
prosecuted. From the time of my appointment I have prosecuted six matters and
appeared in the DFDAT on nine occasions.
It was pleasing that this recommendation was not accepted by
Defence. I will continue to prosecute and appear in the DFDAT...The role of DMP
is not solely administrative.[16]
1.17
The DMP concluded her remarks on the subject by stating that she firmly
believed that a DMP who does not prosecute cannot properly discharge his or her
statutory function.[17]
ODMP caseload
1.18
Brigadier McDade noted that during the reporting period all legal
officers at ODMP either already held, or obtained soon after their posting, an
ACT practising certificate.[18]
She also provided the following caseload data for the reporting period:
- From 1 January to 26 August 2009, five jury trials, nine judge
alone trials, and nineteen sentencing hearings were conducted at various
locations in Australia.
- Post Lane v Morrison, ten Defence Force Magistrate
hearings were held, one Restricted Court Martial and five General Court Martials.
- Sixty nine matters were not proceeded with due to the
determination that there was no reasonable prospect of success, or that to
prosecute would not have enhanced or enforced discipline.
- Forty five matters were referred back for summary disposal.
- Eleven matters were referred to civilian Directors of Public
Prosecution for prosecution pursuant to the extant memorandum.
- As at 31 December 2009, the ODMP had ninety open matters.[19]
Significant cases
1.19
The DMP's report cited a number of significant cases heard during the
reporting period; in particular Lane v Morrison, and, Flynn v Chief
of Army. 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.[20]
The command discipline system
1.20
The DMP observed that much of the reported offending involved assaults
resulting in serious injury. She noted that such an offence is 'manifestly
injurious to service discipline and therefore appropriately referred to a court
martial for hearing'. She noted that in light of the High Court decision in
respect of the Australian Military Court, it was 'essential that rigorous
consideration be given to the choice of appropriate forum and that
administrative convenience be but one factor to consider, rather than the
determinative consideration'.[21]
She explained:
The command-based discipline system has worked well since its
resumption. It is a fully deployable system, and less likely post the decisions
in White and Lane to be subject to further successful legal
challenge. It is and has been a fair and impartial system that has in my view
been unfairly criticised because of its association with other areas of
'military justice', in particular adverse administrative procedures and
Redresses of Grievance (ROG). In my view there was nothing fundamentally wrong
with the command-based discipline system before the AMC stood up, and there is
nothing fundamentally wrong with it now.[22]
1.21
According to the DMP’s report the misuse of the Defence Travel Card,
which made up 25 per cent of briefs of evidence in the previous reporting period,
had declined to only 7.5 per cent. She welcomed a recent amendment to the
Defence Force Regulations that would permit Summary Authority trial of this type
of misuse where circumstances do not warrant a trial by Court Martial or
Defence Force Magistrate.[23]
Recommendations and considerations
1.22
In her report, the DMP highlighted a number matters for consideration:
- providing for the prosecution's right of appeal against sentence
which would enable the DMP to challenge 'manifestly inadequate punishments';[24]
- having an explicit provision in section 70 DFDA to permit the
circumstances of a victim to be considered by a service tribunal. In her view
this 'would eminently serve to enhance the discipline of the ADF, both by
permitting a service tribunal to have a more complete picture of the effect of
the offending and by affording a victim the opportunity to be heard'.[25]
- adopting the practice of appointing senior officers to be
Presidents of Courts Martial as their final posting. In her view such a model
would permit the development of experience and expertise in Courts Martial
which is not otherwise likely, and reduce the disruption to the 'cadre of
senior officers currently called upon on an ad hoc basis to serve as President'.[26]
- including aggravated assault provisions in the DFDA so that the
criminal responsibility for aggravated assault and common assault are uniform;[27]
and
- including global punishments in the DFDA which would enable 'a
court to properly sentence a convicted person found guilty of having committed "overlapping"
offences—that is, offences that have common elements'. Such a provision would
also permit 'the imposition of a total sentence for a related course of
offending, without requiring recourse to the reduction of individual
punishments or orders for partial or total concurrency'.[28]
Conclusion
1.23
In conclusion, Brigadier McDade stated that:
In my previous report, I indicated 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
discipline system and the prosecution process would serve to enhance Service
discipline.
I remain hopeful that the Government will settle on a
constitutionally sound system of military discipline that is able to meet the
demands of future military operations and the expectations of the Australian
and international communities...it is my view that the command-based system
currently operating adequately meets the Australia Defence Force's discipline
needs.[29]
1.24
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).[30]
ASC Pty Ltd
1.25
The ASC Pty Ltd Annual Report 2009 was received on 17 December 2009 and tabled
in the Senate on 2 February 2010.
1.26
The ASC Pty Ltd (formerly known as Australian Submarine Corporation), was
established in 1985. It is a designer, builder and maintainer of the Royal
Australian Navy's submarines and surface ships. It is responsible for the
design and build of the Collins Class submarines.[31]
1.27
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.[32]
On 11 June 2004, ASC was proclaimed as a government business enterprise under
the CAC Act.[33]
1.28
In his chairman's report, the incoming Chairman, Vice Admiral Chris
Ritchie, AO, stated that 'ASC has begun to chart a new course in its
twenty-fourth year':
While our submarine and shipbuilding businesses remain at the
forefront of Australia's naval defence industry, we recognise that there is
much we can do to improve and help our customers achieve their goals.[34]
1.29
He noted the Commonwealth Government's February 2009 announcement that
it had decided to defer the privatisation of ASC. In his view, this decision has
created a clearer framework for ASC to operate within for the foreseeable
future. The Chairman stated:
While we will always strive to provide the best financial
return to our shareholder, the Government's decision now allows us to devote
our full attention to working with our customers, Defence Materiel Organisation
(DMO) and the Royal Australian Navy (RAN). Thus our energies are now focussed
on delivering the best outcomes for our customers with a particular initial
emphasis on improvement in the activities associated with Collins Class
submarine through-life support (TLS) program.[35]
1.30
The Chairman concluded his remarks by stating that as a first step in
this direction, a restructure of the company, commencing in June 2009, means
that ASC will be better able to deliver value for money.[36]
1.31
In his Director's report, Mr Graeme Bulmer, reported on ASC’s two main
activities—the Collins Class submarines and the Air Warfare Destroyer (AWD)
Program.[37]
Collins Class submarine
1.32
ASC carries out maintenance, upgrade, design and engineering activities
for the Collins Class submarine under a multi-billion Through-life Support
agreement with Defence Materiel Organisation (DMO)[38].
This contract is due to expire in 2018, subject to exercise of options for two
further five-year periods.[39]
1.33
According to the report, during 2008-2009 ASC commenced 12 maintenance
activities of which eight were completed during the year. Activities undertaken
from ASC’s Western Australian facility, ASC West, were:
- one mid-cycle docking
- one intermediate maintenance availability; and
- personnel support for five self-maintenance periods conducted in
Western Australia and Hawaii.[40]
1.34
Activities conducted at ASC’s South Australian submarine facility, ASC
Osborne, consisted of:
-
two full-cycle dockings;
- one mid-cycle docking;
- one full-cycle docking preparation and lay-up period; and
- one self-maintenance period.[41]
Air Warfare Destroyer
1.35
ASC entered into an alliance based contract in October 2007 for the
design and construction of three Hobart Class air warfare destroyers (AWDs).[42]
They are to be built at Osborne South Australia. According to the annual report
their construction 'will be one of the most significant shipbuilding projects ever
undertaken in Australia'.[43]
The report noted that key milestones have been completed according to plan,
most notably the integrated Baseline Review in July 2008 and the Preliminary
Design Review in December 2008.[44]
It stated further:
Procurement of major Combat System and Platform equipment is
well in hand, and preparations are advanced for the commencement of ship
construction activities during calendar year 2009. Shipyard development is
proceeding to plan, the Administration Building has been completed and
occupied, and completion of the remainder is scheduled before the end of November
2009.[45]
1.36
In conclusion, the committee notes that ASC continues to record sound
financial results:
...recording a profit for 2009 of $18.4 million, compared to
last year's figure of $29.7 million. Our consolidated revenue was $352 million
(2008: $325 million) and our dividend was $11.1 million (2008: $17.9 million).[46]
1.37
ASC Pty Ltd has presented a comprehensive and informative report. The
committee finds that it adequately complies with all reporting requirements for
a non-statutory company.
Defence Force Remuneration Tribunal
1.38
The Defence Force Remuneration Tribunal Twenty–fourth Report 2008–2009
was received on 22 December 2009 and tabled in the Senate on 2 February 2010.
The Tribunal was established in 1984 under section 58H of the Defence Act
1903.
1.39
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'.[47]
1.40
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.[48]
1.41
During 2008–2009, the Tribunal continued with the review of the ADF
salary structure, noting that:
The Tribunal has completed a fundamental review of the Other
Ranks salary structure resulting in a contemporary placement for the Other
Ranks employment categories.
The work of the Tribunal over the last year has been complex
and intense. It is the diligence and high standard of presentations by the ADF
and the Commonwealth which has assisted the Tribunal and has allowed all
matters to be dealt with in a timely fashion.[49]
1.42
In its report, the Tribunal provided a 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.[50]
1.43
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.
![Senator Mark Bishop](bishop.jpg)
Senator Mark Bishop
Chair
Navigation: Previous Page | Contents | Next Page