Executive Summary
Following the findings of the committee's 2005 report into Australia's
military justice system, Defence has implemented significant reforms that,
without doubt, have improved the system. The committee's primary concern,
however, is with ensuring that the reform program maintains its momentum and
the gains made to date are not lost. Defence's history of failed reforms heightens
this concern.
This report marks the end of the committee's undertaking to
report on the implementation of reforms to Australia's military justice system.
It contains 13 recommendations and a number of suggestions. Some are of a more
technical, legal nature indicating that changes to legislation may be required,
particularly as the AMC and the new summary authority procedures become fully
operational. The committee starts with the five major recommendations.
Transparency, accountability, independence and scrutiny
Any measures that strengthen disclosure, public accountability,
transparency and the independence of the military justice system will enhance its
effectiveness. The committee's key recommendations are intended to make Australia's
military justice system more open, transparent, accountable and independent.
Recommendation 8
The committee recommends that the government amend the
Defence Force Discipline Act to require the Australian Military Court (AMC) to
publish material such as court lists, transcripts of proceedings and judgments
in a readily and easily accessible form (paragraph 5.20).
The committee believes that the Chief Military Judge (CMJ) has
a vital role, and responsibility, to contribute to the parliament's understanding
of the administration of military justice by agreeing, when invited, to give
evidence before the committee.
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 (paragraph 5.30).
Without doubt the administrative system needs a strong
independent and critical oversight authority responsible for identifying
problems in the military justice system and for auditing and reporting on
matters such as the progress of complaints and the implementation of
recommendations arising from investigations. Although the Inspector General
Australian Defence Force (IGADF) is a statutory appointment, the committee
believes that his position needs to be, and perceived to be, more independent
from command. A first step would be to change the reporting requirements of the
IGADF.
Recommendation 10
The committee recommends that the Defence Act 1903 be
amended to include in section 110 the requirement for the IGADF to, as soon as
practicable after each 31 December, 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) (paragraph 5.59).
This recommendation is a necessary first step in restoring
credibility to the office of the IGADF when it comes to his independence and
function as an effective oversight authority. Other measures should also be
considered using the provisions that apply to the CMJ and DMP as a model.
Recommendation 11
The committee recommends that the government consider
additional measures to strengthen the independence of the IGADF using the
provisions governing the CMJ and the DMP as a template (paragraph 5.61).
The committee also believes that commissions of inquiry need
greater transparency.
Recommendation 12
The committee recommends that the regulations governing the
establishment of Commissions of Inquiry (COIs) be amended to require that COIs
be conducted in public except in circumstances where the president deems there
to be a compelling reason for privacy. In cases where the president makes such
a decision, the regulations should require the president to issue a public
statement containing the reasons for this decision (paragraph 5.63).
The committee is most concerned about Defence's failure to
consult with external and independent experts when considering reforms on
military justice. This attitude indicates that Defence is not only reluctant to
be open and receptive to constructive criticism and new ideas, but does not
appreciate that wider consultation produces better legislation and ultimately a
more effective military justice system.
Recommendation 13
The committee recommends that the
government undertake a comprehensive consultation process on any future
proposed legislation, including subordinate legislation, that is intended to
make significant changes to Australia's military justice system.
The committee cites in particular the importance of consulting
with the Law Council of Australia (paragraph 5.91).
Monitoring and reviewing
The ADF's inability to make lasting change is clearly
demonstrated by the continuing problems with the ADF's police service and
learning culture. The process of building the ADF's investigative capability and
improving its learning culture must be regularly monitored and assessed.
The need for regular monitoring, review, independent
assessment and reporting, however, applies to all aspects of Australia's
military justice system. The committee recognises that over time refinements or
adjustments may be required to the reforms implemented during the last two
years. The remaining recommendations are concerned with the necessary reviews
of the ADF's investigative capability and its learning culture and some other matters
including the conduct and protection of military jurors, an audit of legal
services in the ADF and appeals to service chiefs.
Recommendation 1
The committee recommends that the Defence Force Discipline
Act be amended to include provisions governing the conduct and protection of
military jurors (paragraph 2.31).
Recommendation 2
The committee recommends that Defence undertake an audit of
all legal officers in the ADF with a view to ensuring that the legal skills,
expertise and experiences available to the ADF are being used to full advantage
and to identify deficiencies that may need addressing (paragraph 2.74).
Recommendation 3
The committee recommends that in 12 months, Defence report
to the committee on its progress implementing reforms to improve the ADF's
investigative capability (paragraph 3.34).
Recommendation 4
The committee recommends that the government commission an
independent review of the ADF's investigative capability at the conclusion of
the 5-year remediation period (paragraph 3.35).
Recommendation 5
The committee recommends that a specific time limit, for
example 90 days, be imposed on referrals of redresses of grievance to the
service chiefs (paragraph 4.14).
Recommendation 6
The committee recommends that the ADF commission an
independent review of the learning culture in the ADF, along similar lines as
the investigation conducted in 2006. The main purpose of the inquiry would be
to assess whether the recommendations contained in the 2006 report have been
effectively implemented and whether additional measures need to be taken to
improve the learning culture in the ADF. This review should take place within
five years and the report on its findings should be made public (paragraph
4.39).
Recommendation 7
The committee recommends that the findings of Defence's
attitude survey contain a greater level of detail and analysis than that
provided in the most recent publication (paragraph 4.42).
The committee also notes that Sir Laurence Street and Air
Marshal Les Fisher (Retd) have been appointed to assess the effectiveness of
the reform program. The committee welcomes the establishment of this review
team and, in the course of the report, has identified matters that the team may
wish to examine as part of their inquiry, including:
- the jurisdiction of the Australian Military Court (AMC) and the appropriateness
of the AMC to hear civilian cases;
- the random and tri-service basis for the selection of military
juries;
- code of conduct for military jurors;
- the rules of evidence for summary trials;
- the adequacy of the information made available on the work of the
AMC including the proposal for the AMC to produce 'a military justice
reporter' or similar publication;
- the accountability of the CMJ to parliament, including his or her
appearance before parliamentary committees;
- the functions and future role of the Judge Advocate General (if
any);
- the role of the Inspector General of the ADF (IGADF) and how the
IGADF's independence could be strengthened to ensure the positive results of
reforms to the military justice system, especially to the administrative
system, do not dissipate with the passage of time;
- the relationship between the Australian Defence Force (ADF) and
state and territory coroners;
- the potential for command influence in ADF investigations;
- the ADF's tracking system for handling complaints;
- the Defence Force Discipline Act 1982 (DFDA) and whether
it is in line with comparable and up-to-date legislation including provisions
governing people found unfit to stand trail or not guilty of an offence on the
grounds of mental impairment (paragraphs 2.34–2.36); and
- the role of the Law Council and adequacy of Defence's
consultative process.
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