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

Chair

Navigation: Previous Page | Contents | Next Page