Committee's recommendations
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Government response
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Recommendation 1
3.119 The committee recommends that all suspected
criminal activity in Australia be referred to the appropriate State/Territory
civilian police for investigation and prosecution before the civilian courts.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation 2
3.121 The committee recommends that the investigation
of all suspected criminal activity committed outside Australia be conducted by the Australian Federal Police.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation 3
3.124 The committee recommends
that Service police should only investigate a suspected offence in the first
instance where there is no equivalent offence in the civilian criminal law.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation 4
3.125 The committee recommends that, where the civilian police do not
pursue a matter, current arrangements for referral back to the service police
should be retained. The service police should only pursue a matter where
proceedings under the DFDA can reasonably be regarded as substantially
serving the purpose of maintaining or enforcing service discipline.
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Government Response: Agreed in part
The Government agrees in part, noting
that the ADF makes an initial determination on whether offences of a
suspected criminal nature should be retained for investigation and
prosecution. This determination is based on an assessment of whether dealing
with the matter under the DFDA can be reasonably regarded as substantially
serving the purpose of maintaining and enforcing Service discipline. Where
civilian police do not pursue a matter and it can be regarded as
substantially serving the purpose of maintaining and enforcing Service
discipline, then the matter may be dealt with under the DFDA. Defence will
work to improve the management and effectiveness of the relationship between
the military and civilian authorities on referral issues. This will include
reviewing and clarifying the guidelines and examining the need for, and
implementing as necessary, formal arrangements with the states and
territories for referral of offences. Defence also intends to establish a
common database for tracking referrals.
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Recommendation 5
3.130 The committee recommends that the ADF increase the capacity of
the Service police to perform their investigative function by:
- Fully implementing the recommendations contained in the Ernst &
Young Report;
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Encouraging military personnel secondments and exchanges with
civilian police authorities;
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Undertaking a reserve recruitment drive to attract civilian police
into the Defence Forces;
-
Increasing participation in civilian investigative training courses;
and
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Designing clearer career paths and development goals for military
police personnel
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Government Response: Agreed in part
The Government agrees this
recommendation with one exception. The Ernst and Young Report was a review of the
Army police investigation service and did not address the Navy and Air Force
police investigation services. Army accepted 53 of the 55 of Ernst and Young recommendations. Two were not
accepted on the basis that they appeared to infringe on the individual rights
of ADF members. Work to implement the 53 agreed recommendations commenced in
August 2004, and is progressing well. 33 recommendations, including the two
that are not accepted, are complete, including establishment of the Provost
Marshal - Army in January 2005. 22 recommendations are pending additional
work which is being progressed by Army.
Some of the recommendations are specific
to the Army and not directly relevant to the Navy and Air Force. The
Government agrees that all Service police will act upon accepted
recommendations of the Ernst and Young Report, as appropriate to each Service.
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Recommendation 6
3.134 The committee recommends that the ADF conduct a tri-service
audit of current military police staffing, equipment, training and resources
to determine the current capacity of the criminal investigations services.
This audit should be conducted in conjunction with a scoping exercise to
examine the benefit of creating a tri-service criminal investigation unit.
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Agreed
The Government will conduct a
tri-service audit of Service police to establish the best means for
developing investigative capability. Defence acknowledges that the current
military police investigation capability has significant shortcomings and is
inadequate for dealing with more serious offences that are not referred to
civilian authorities. As identified by the Senate Committee, Defence has
begun to rectify shortfalls as part of the implementation of agreed
recommendations from the recent Ernst and Young review into Army military police, including the establishment
of the Provost Marshal
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Army. Navy and Air Force have completed
or are conducting similar reviews to build on the outcomes of the Ernst and Young review. The recommended audit
will bring together this work and establish the best way to develop the
investigative capability of all Service police.
To supplement this, Defence will
establish a joint ADF investigation unit to deal with more serious
disciplinary and criminal investigations. The ADF began work to form a
Serious Crime Investigation Unit in February 2004. Establishment of the unit
has been in abeyance pending the outcomes of this Review. In-principle agreement
has been reached with the AFP for a senior AFP officer to be seconded to
mentor and provide oversight of this team, and implementation will now
proceed. The unit will be headed by a new ADF Provost Marshal outside single
Service chains of command. Service police may be supplemented by civilian
investigators. The unit will deliver central oversight and control of ADF
investigations and develop common professional standards through improved and
consistent training. Greater numbers of more skilled investigators will be
available to investigate complex and serious issues in operational
environments and contingencies inside and outside Australia.
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Recommendation 7
4.44 The committee
recommends that all decisions to initiate prosecutions for civilian
equivalent and Jervis Bay Territory offences should be referred to
civilian prosecuting authorities.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation 8
4.45 The committee
recommends that the Director of Military Prosecutions should only initiate a
prosecution in the first instance where there is no equivalent or relevant
offence in the civilian criminal law. Where a case is referred to the
Director of Military Prosecutions, an explanatory statement should be
provided explaining the disciplinary purpose served by pursuing the charge.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation 9
4.46 The committee recommends that the Director of Military Prosecutions
should only initiate prosecutions for other offences where the civilian
prosecuting authorities do not pursue a matter. The Director of Military
Prosecutions should only pursue a matter where proceedings under the DFDA can
reasonably be regarded as substantially serving the purpose of maintaining or
enforcing Service discipline.
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*NOT AGREED. Referral of
offences to civilian authorities.
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Recommendation 10
4.47 The committee
recommends that the Government legislate as soon as possible to create the
statutorily independent Office of Director of Military Prosecutions.
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Government Response: Agreed
The Government agrees, noting that
action has already commenced to establish the Director of Military
Prosecutions as a statutory position. The statutory appointment will allow
the Director of Military Prosecutions to operate independently and free from
perceptions of command influence. It will also promote confidence among ADF
members in the independence and impartiality of the appointment and in the
functions of the Office.
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Recommendation 11
4.48 The committee recommends that the ADF conduct a review of the
resources assigned to the Office of the Director of Military Prosecutions to
ensure it can fulfil its advice and advocacy functions and activities.
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Government Response: Agreed
The Government agrees. The Office of
Director of Military Prosecutions was established on an interim basis in July
2003; it is timely to review the Office to ensure that it has sufficient resources
to meet current and future work loads and is able to respond to operational
requirements.
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Recommendation 12
4.49 The committee recommends that the ADF review the training
requirements for the Permanent Legal Officers assigned to the Office of the
Director of Military Prosecutions, emphasising adequate exposure to civilian
courtroom forensic experience.
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Government Response: Agreed
The Government notes that the Committee
recognised that the ODMP had been performing an admirable job and agrees to
review the training requirements for permanent legal officers assigned to the
Office of the DMP. The review will be extended to include the training
requirements for reserve legal officers who may be assigned prosecution
duties by the DMP.
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Recommendation 13
4.50 The committee recommends that the ADF act to raise awareness
and the profile of the Office of the Director of Military Prosecutions within
Army, Navy and Air Force.
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Government Response: Agreed
The Government notes that the ODMP has
been actively engaged in increasing its profile over the last eighteen
months, and agrees action should continue to raise the awareness and profile
of the Office. Increased awareness and profile will help ADF members understand
the role of the DMP, and ensure that Commanders have ready access to
impartial and independent advice on the proper investigation and prosecution
of Service offences, especially those that are serious criminal offences.
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Recommendation 14
4.51 The committee
recommends that the Director of Military Prosecutions be appointed at one
star rank.
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Government Response: Agreed
The Government agrees to the statutory
appointment of the Director of Military Prosecutions at the one star rank.
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Recommendation 15
4.52 The committee recommends the remuneration of the Director of
Military Prosecutions be adjusted to be commensurate with the professional
experience required and prosecutorial function exercised by the office-holder.
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Government Response: Agreed
The Government agrees to appropriate
remuneration for the appointment of the Director of Military Prosecutions. In
accordance with the Government’s response to Recommendation 10, action is
being taken to create a statutory appointment of the DMP. Remuneration of the
statutory appointment will be determined by the Remuneration Tribunal (Cth).
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Recommendation 16
4.75 The committee recommends that all Permanent Legal Officers be
required to hold current practicing certificates.
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Government Response: Agreed in principle
The Government notes the Committee’s
underlying concern that the current ADF structures could give rise to a
perception that ADF legal officers may not always exercise their legal duties
independently of command influence.
The independence of the ADF permanent
legal officers was criticised in the ACT Supreme Court in 12 Vance v The
Commonwealth (2004). In part, the case concerned legal
professional privilege. A significant factor in the case was that ADF and
Department of Defence legal officers do not normally have practising
certificates and this was seen as an indication that they were not
independent and impartial and entitled to legal professional privilege. In
May 2005, the Commonwealth appealed the decision, and the ACT Court of Appeal
unanimously upheld the appeal on 23 August 2005.
Although there are practical
difficulties in implementing Practising Certificates, the legal officers in
the office of the DMP will be required to hold them, and other permanent
legal officers will be encouraged to take them out. The matter of their
independence would be established through amendment of the Defence Act, and
commitment to professional ethical standards (ACT Law Society).
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Recommendation 17
4.76 The committee recommends that the ADF establish a Director of
Defence Counsel Services.
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Government Response: Agreed
The Government agrees to establish a
Director of Defence Counsel Services (DDCS) to improve the availability and
management of defence counsel services to ADF personnel. The DDCS will be
established as a military staff position within the Defence Legal Division to
coordinate and manage the access to and availability of defence counsel services
by identifying and promulgating a defence panel of legal officers, permanent
and reserve.
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Recommendation 18
5.94 The committee recommends 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.
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Government Response: Agreed
The Government agrees to create a
permanent military court to be known as the Australian military court, to
replace the current system of individually convened trials by Courts Martial
and Defence Force Magistrates. The Australian military court will be
established under appropriate Defence legislation. The court will satisfy the
principles of impartiality and judicial independence through the statutory
appointment of judge advocates with security of tenure (five-year fixed terms
with a possible renewal of five years) and remuneration set by the
Remuneration Tribunal (Cth). During the period of their appointment, the
judge advocates will not be eligible for promotion, to further strengthen
their independence from the chain of command. The appointments will be made
by the Minister for Defence.
The appointment of new military judge
advocates would see the need to consider further, during implementation, the
position of the Judge Advocate General. The remaining functions of the Judge
Advocate General would be transferred to the Chief Judge Advocate and the
Registrar of Military Justice. The Australian military court would consist of
a Chief Judge Advocate and two permanent judge advocates, with a part-time
reserve panel. The panel of judge advocates would be selected from any of the
available qualified full or part-time legal officers. The court would be
provided with appropriate para-legal support sufficient for it to function
independent of the chain of command. In meeting all of the requirements of
military justice, the court would include options for judge advocates to sit
alone or, in more serious cases, with a military jury. The use of a jury
would be mandatory for more serious military offences, including those
committed in the face of the enemy, mutiny, desertion or commanding a service
offence.
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Recommendation 19
5.95 The Permanent Military Court to be created in accordance with
Chapter III of the Commonwealth Constitution to ensure its independence and
impartiality.
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Judges should be appointed by the Governor-General in Council;
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Judges should have tenure until retirement age.
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Government Response: Not agreed
In response to Recommendation 18, the
Government agreed to the option to establish an Australian military court.
The Government does not support the creation of a permanent military court
under Chapter III of the Constitution. Current advice is that there are
significant policy and legal issues raised by the proposal to use existing
courts for military justice purposes. Chapter III of the Constitution imposes
real constraints in this regard.
Importantly, a military court is not an
exercise of the ordinary criminal law. It is a military discipline system,
the object of which is to maintain military discipline within the ADF. It is
essential to have knowledge and understanding of the military culture and
context. This is much more than being able to 16 understand specialist
evidence in a civil trial. There is a need to understand the military
operational and administrative environment and the unique needs for the
maintenance of discipline of a military force, both in Australia and on operations and exercises overseas. The judicial authority must be
able to sit in theatre and on operations. It must be deployable and have
credibility with, and acceptance of, the Defence Force. The principal factor
peculiar to the Defence Force is the military preparedness requirements and
the physical demands of sitting in an operational environment. The Chapter
III requirements are not consistent with these factors, and the Government
does not support the Chapter III features for a military court.
In addition, a Chapter III court would
require its military judicial officers to be immune from the provisions of
the DFDA subjecting them to military discipline. While this is appropriate
regarding the performance of their judicial duties, the Government does not
support making them exempt from military discipline in the performance of
their non-judicial duties such as training.
The limitations resulting from those
constraints means that having a separate military court outside Chapter III
is preferable to bringing the military justice system into line with Chapter
III requirements.
The Government will instead establish a
permanent military court, to be known as the Australian military court, to
replace the current system of individually convened trials by Courts Martial
and Defence Force Magistrates. The Australian military court would be
established under appropriate Defence legislation and would satisfy the
principles of impartiality and judicial independence through the statutory
appointment of military judge advocates by the Minister for Defence, with
security of tenure (fixed five-year terms with possible renewal of five
years) and remuneration set by the Remuneration Tribunal (Cth). To enhance
the independence of military judge advocates outside the chain of command,
they would not be eligible for promotion during the period of their
appointment.
Advice to the Government indicates that
a military court outside Chapter III would be valid provided jurisdiction is
only exercised under the military system where proceedings can reasonably be
regarded as substantially serving the purpose of maintaining or enforcing
service discipline.
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Recommendation 20
5.97 The committee recommends that Judges appointed to the
Permanent Military Court should be required to have a minimum of five years
recent experience in civilian courts at the time of appointment.
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Government Response: Not agreed
The Australian military court will have
a permanent panel of military judge advocates with legislated independence.
Appointment should be based on the same professional qualifications and
experience that apply to other judicial appointments such as those applicable
to a Federal Magistrate as set out in the Federal Magistrates Act 1999 (Cth)
Schedule 1 clause 1 (2). While recent civilian experience could be a factor
to be taken into account, other qualified military legal practitioners should
not be excluded on the basis that they do not have recent civilian
experience.
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Recommendation 21
5.100 The committee recommends that the bench of the Permanent
Military Court include judges whose experience combines both civilian legal
and military practice.
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Government Response: Agreed in principle
The Government agrees that judge advocates
appointed to the Australian military court should have appropriate experience
and that appointments should be based on the same professional qualifications
and experience that apply to other judicial appointments, such as those
applicable to a Federal Magistrate as set out in the Federal Magistrates
Act 1999 (Cth) Schedule 1 clause 1 (2).
The Australian military court will have
a permanent panel of military judge advocates with legislated independence.
The Government notes that military judge advocates will predominantly be
drawn from the Reserve, and would have adequate civilian and military
experience. Nevertheless, other qualified military legal practitioners should
not be automatically excluded on the basis that they do not have civilian practice
experience.
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Recommendation 22
5.104 The committee recommends the introduction of a right to elect
trial by court martial before the Permanent Military Court for summary
offences.
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Government Response: Agreed in principle
The Government agrees in principle with
the concept of a right to elect trial. The form of that right and appropriate
thresholds will need to be determined once the structure of the Australian
military court is established, but will be based on existing determinations
that certain classes of serious offence must be tried by a court
incorporating a military jury.
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Recommendation 23
5.106 The committee recommends
the introduction of a right of appeal from summary authorities to the
Permanent Military Court.
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Government Response: Agreed
The Government agrees with the concept
of an automatic right of appeal, on conviction or punishment, from summary
authorities to a judge advocate of the Australian military court. The current
process of review will be discontinued. The existing right of appeal from
Courts Martial and Defence Force Magistrates (to be the Australian military
court) to the DFDA Tribunal will be retained. Currently, the DFDAT may only
hear appeals on conviction on points of law, and may quash a conviction or
substitute a conviction on an alternative offence. This will be amended to
include appeals on punishment, noting that such an appeal might result in an
increased punishment.
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Recommendation 24
7.98 In line with Australian Standard AS 8004–203, Whistleblower
Protection
Programs for Entities, the committee recommends that: the ADF's program
designed to protect those reporting wrongdoing from reprisals be reviewed
regularly to ensure its effectiveness; and there be appropriate reporting on
the operation of the ADF's program dealing with the reporting of wrongdoing
against documented performance standards (see following recommendation).[113]
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Government Response: Agreed
The Government will continue the regular
reviews of the Defence Whistleblower Scheme that have been undertaken since
its inception. Defence uses the Australian Standard for Whistleblower
Protection Programs AS 8004-203, and the scheme is currently undergoing a comprehensive
review by the Defence Inspector General. This review and its implementation
will emphasise the present provisions against reprisals in the current
Defence Whistleblower instruction. The Government supports annual reporting
of the operation of the scheme against documented performance standards.
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Recommendation 25
7.103 The committee recommends
that, in its Annual Report, the Department of Defence include a separate and
discrete section on matters dealing with the reporting of wrongdoing in the ADF.
This section to provide statistics on such reporting including a discussion on the
possible under reporting of unacceptable behaviour. The purpose
is to provide the public, members of the ADF and parliamentarians with
sufficient information to obtain an accurate appreciation of the
effectiveness of the reporting system in the ADF.
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Government Response: Agreed in part
The Government notes that Defence
already reports statistics on reporting unacceptable behaviour in its annual
report. The Government agrees that Defence will continue to include this data
in the Defence annual report. The Government does not agree to report on
potential under-reporting of unacceptable behaviour, as an exercise
necessarily speculative in nature. Defence does, however, have in place a
range of initiatives to manage and coordinate its complaints processing
function to raise awareness and encourage reporting as appropriate.
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Recommendation 26
8.12 The committee
recommends that the Defence (Inquiries) Manual include at paragraph 2.4 a
statement that quick assessments while mandatory are not to replace
administrative inquiries.
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Government Response: Agreed
The Government will amend the
Administrative Inquiries Manual to specify that quick assessments, while
mandatory, should not replace the appropriate use of other forms of
administrative inquiries. The Manual will provide improved guidance on the
use of quick assessments.
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Recommendation 27
8.78 The committee
recommends that the language in the Administrative Inquiries Manual be
amended so that it is more direct and clear in its advice on the selection of
an investigating officer.
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Government Response: Agreed
The Government will amend the
Administrative Inquiries Manual to improve guidance to Commanders who are
responsible for the selection of inquiry officers to carry out administrative
inquiries, such as routine unit inquiries or those appointed as Investigating
Officers under the Defence (Inquiry) Regulations. This will improve
independence and impartiality, as well as enhance the quality of inquiry
outcomes.
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Recommendation 28
8.81 The committee
recommends that the following proposals be considered to enhance transparency
and accountability in the appointment of investigating officers: Before an inquiry commences, the
investigating officer be required to produce a written statement of
independence which discloses professional and personal relationships with
those subject to the inquiry and with the complainant. The statement would
also disclose any circumstances which would make it difficult for the
investigating officer to act impartially. This statement to be provided to
the appointing authority, the complainant and other persons known to be
involved in the inquiry. A provision
to be included in the Manual that would allow a person involved in the
inquiry process to lodge with the investigating officer and the appointing
officer an objection to the investigating officer on the grounds of a
conflict of interest and for these objections to be acknowledged and included
in the investigating officer's report. The investigating officer be required
to make known to the appointing authority any potential conflict of interest
that emerges during the course of the inquiry and to withdraw from the
investigation. The investigating officer's report to include his or her
statement of independence and any record of objections raised about his or
her appointment and for this section of the report to be made available to all
participants in the inquiry.
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Government Response: Agreed in part
The Government agrees to consider
proposals to enhance the transparency and accountability in the appointment
of investigating officers. The Government agrees that investigating officers
be required to produce statements of independence and to make known any
potential conflicts of interest. The Government does not support the proposal
that conflict of interest reports be included in reports to the Commanding
Officer, rather, the Government will direct Defence to amend the
Administrative Inquiries Manual to require that investigating officers must
provide statements of independence, and that following receipt of the
statement of independence, the complainant must alert the appointing authority
to any potential conflict of interest or objection to an investigating
officer. Resolution of any conflict would then occur prior to the
commencement of the investigation.
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Recommendation 29
11.67 The committee makes the following
recommendations—
a) The committee recommends that:
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the Government establish an Australian Defence Force Administrative
Review Board (ADFARB);
-
the ADFARB to have a statutory mandate to review military grievances
and to submit its findings and recommendations to the CDF;
-
the ADFARB to have a permanent full-time independent chairperson
appointed by the Governor-General for a fixed term;
-
the chairperson, a senior lawyer with proven administrative
law/policy experience, to be the chief executive officer of the ADFARB and
have supervision over and direction of its work and staff;
-
all ROG and other complaints be referred to the ADFARB unless
resolved at unit level or after 60 days from lodgement;
-
the ADFARB be notified within five days of the lodgement of an ROG at
unit level with 30 days progress reports to be provided to the ADFARB;
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the CDF be required to give a written response to ADFARB
findings/recommendations; if the CDF does not act on a finding or
recommendation of the ADFARB, he or she must include the reasons for not
having done so in the decision respecting the disposition of the grievance or
complaint;
-
the ADFARB be required to make an annual report to Parliament.
b) The committee recommends that
this report
- contain information that will allow effective scrutiny of the
performance of the ADFARB;
-
provide information on the nature of the complaints received, the
timeliness of their adjudication, and their broader implications for the
military justice system—the Defence Force Ombudsman's report for the years
2000–01 and 2001–02 provides a suitable model; and
-
comment on the level and training of staff in the ADFARB and the
adequacies of its budget and resources for effectively performing its
functions.
c) The committee recommends that in drafting
legislation to establish the ADFARB, the Government give close attention to
the Canadian National Defence Act and the rules of procedures governing the
Canadian Forces Grievance Board with a view to using these instruments as a
model for the ADFARB. In particular, the committee recommends that the
conflict of interest rules of procedure be adopted. They would require:
-
a member of the board to immediately notify the Chairperson, orally
or in writing, of any real or potential conflict of interest, including where
the member, apart from any functions as a member, has or had any personal,
financial or professional association with the grievor; and
-
where the chairperson determines that the Board member has a real or
potential conflict of interest, the Chairperson is to request the member to
withdraw immediately from the proceedings, unless the parties agree to be
heard by the member and the Chairperson permits the member to continue to
participate in the proceedings because the conflict will not interfere with a
fair hearing of the matter.
d) The committee further recommends that to
prevent delays in the grievance process, the ADF impose a deadline of 12
months on processing a redress of grievance from the date it is initially
lodged until it is finally resolved by the proposed ADFARB. It is to provide
reasons for any delays in its annual report.
e) The committee also recommends that the
powers conferred on the ADFARB be similar to those conferred on the CFGB. In
particular:
-
the power to summon and enforce the attendance of witnesses and
compel them to give oral or written evidence on oath or affirmation and to
produce any documents and things under their control that it considers
necessary to the full investigation and consideration of matters before it; and
-
although, in the interest of individual privacy, hearings are held
in-camera, the chairperson to have the discretion to decide to hold public
hearings, when it is deemed the public interest so requires.
f)
The committee recommends that the ADFARB take responsibility for and
continue the work of the IGADF including:
-
improving the training of investigating officers;
-
maintaining a register of investigating officers, and
-
developing a database of administrative inquiries that registers and
tracks grievances including the findings and recommendations of
investigations.
g) To address a number of problems
identified in administrative inquiries at the unit level—notably conflict of
interest and fear of reprisal for reporting a wrongdoing or giving evidence
to an inquiry—the committee recommends that the ADFARB receive reports and
complaints directly from ADF members where:
-
the investigating officer in the chain of command has a perceived or
actual conflict of interest and has not withdrawn from the investigation;
-
the person making the submission believes that they, or any other
person, may be victimised, discriminated against or disadvantaged in some way
if they make a report through the normal means; or
-
the person has suffered or has been threatened with adverse action on
account of his or her intention to make a report or complaint or for having
made a report or complaint.
h) The committee further recommends that an
independent review into the performance of the ADFARB and the effectiveness
of its role in the military justice system be undertaken within four years of
its establishment.
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Government Response: Not Agreed
The Government agrees there is a need to
improve the complaints and redress of grievance management system, and
proposes that the shortfalls in the existing system would best be met by
streamlining the existing ADF complaints management and redress of grievance
system and retaining independent internal and external review and oversight
agencies. The committee’s recommended ADF Administrative Review Board
(ADFARB) would not support the relationship between command and discipline,
would reduce contestability and introduce duplication.
The ADFARB concept proposed by the
Senate Committee is based on the Canadian Forces Grievance Board (CFGB). The
CFGB deals with only about 40 per cent of Canadian Defence Force grievances,
is highly resource intensive and does not replace the Canadian internal
complaints resolution body, or the Canadian Forces Ombudsman. Defence is
concerned that the ADFARB concept would reduce contestability in the system
by absorbing the ADF’s only independent review authority, noting the proposal
that the ADFARB take responsibility for and continue the work of the IGADF.
As proposed, the ADFARB would also duplicate the role of the Defence Force
Ombudsman.
The Government does not agree to
establish an ADFARB on the basis that it would be a costly exercise 19 that
would not provide real benefits in terms of increasing perceived
independence. The Government is also concerned that an ADFARB would remove
the responsibility and accountability of commanders for the well being of ADF
personnel in their command.
The Government proposes instead to
reform and streamline the complaints and redress of grievance management
system, in line with the recommendations of a joint Defence Force
Ombudsman/CDF Redress of Grievance System Review 2004. Implementation of
these recommendations has commenced in line with a CDF Directive 2/2005.
Changes to the system will improve the rigour, impartiality and timeliness of
processing complaints.
The overarching principle guiding the
redress of grievance system remains that complaints should be resolved at the
lowest effective level and in the quickest possible time. Primary
responsibility to resolve complaints remains with the unit commanders.
Defence’s Complaint Resolution Agency
(CRA) – an existing body which is established outside the ADF –will become
the lead agency in the coordination of complaints and redresses of grievance.
In its expanded role, the CRA will have
three major functions.
-
The CRA will initially provide advice to
commanding officers on the management of every application for redress of
grievance and monitor the handling of those redress applications at the unit
level. It will have an enhanced advisory and oversight function of every
application.
-
The CRA will have the authority to
advise on appropriately trained and qualified investigating officers at this
initial stage and, if necessary, will require an alternative investigating
officer to that nominated by the commander.
-
Where ADF personnel refer their
complaint to the Service Chief or the Chief of the Defence Force following
the decision of the commanding officer, the Complaint Resolution Agency, as
in the present situation, will conduct an independent review of the matter
and provide recommendations to the decision maker.
All complaints will be registered with
the Complaint Resolution Agency within five days of initiation and it will be
empowered to take over the management of all cases unresolved by commanders
90 days after lodgment. In all cases, the Agency will be the central point
for monitoring progress and resolution. A single register for tracking
complaints across the ADF will be implemented.
Other improvements to the ROG system
being implemented include improvements in training of commanding officers and
investigating officers, consolidating Defence complaint mechanisms, and
managing centrally the various complaint hotlines operating in Defence.
For those ADF personnel who, for whatever
reason, do not wish to use the chain of command, there will remain two alternative
avenues of complaint—the Inspector General of the ADF and the Defence Force
Ombudsman.
The existing Inspector General of the
ADF was established as recommended by Mr Burchett QC to deal exclusively with military justice matters. The IGADF was
established to provide the Chief of the Defence Force with a mechanism for
internal audit and review of the military justice system 20 independent of
the ordinary chain of command and an avenue by which failures and flaws in
the military justice system can be exposed and examined so that any cause of
any injustice may be remedied.
Although it is not a general complaint
handling agency like the CRA, it does provide an avenue for those with
complaints about military justice who are, for some reason, unable to go
through their chain of command, to have their complaints investigated and
remedied. The Government has drafted legislation to establish the Inspector
General of the ADF as a statutory appointment in order to further strengthen
its independence.
In addition to this review mechanism and
completely external to the ADF is recourse to the Defence Force Ombudsman.
This position will retain legislative authority to receive and review
complaints and to initiate on its own motion investigations into ADF
administration processes. The Defence Force Ombudsman has statutory power to
investigate a matter, make findings and recommend a course of action to the
appropriate decision maker and to table a report in Parliament if deemed
necessary.
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Recommendation 30
11.69 The committee recommends
that the Government provide funds as a matter of urgency for the
establishment of a task force to start work immediately on finalising
grievances that have been outstanding for over 12 months.
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Government Response: Agreed
The Government has taken action to clear
the backlog of grievances, in line with recommendations from Defence Force
Ombudsman/CDF Redress of Grievance System Review 2004. This is scheduled to
be completed by the end of 2005, with no requirement for additional funding
or a task force.
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Recommendation 31
12.30 The committee recommends
that the language used in paragraphs 7.56 of the Defence (Inquiry) Manual be
amended so that the action becomes mandatory.
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Government Response: Agreed
The Government will amend the
Administrative Inquiries Manual to require the President to ensure that a
copy of the relevant evidence is provided to a person whom the President
considers is an affected person but who is not present at the hearings. It
will be a matter for the President to determine what evidence should be made
available to an affected person having regard to all the circumstances of
each case.
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Recommendation 32
12.32 Similarly, the committee
recommends that the wording of paragraph 7.49 be rephrased to reflect the
requirement that a member who comes before the Board late in the proceedings will
be allowed a reasonable opportunity to familiarise themselves with the
evidence that has already been given.
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Government Response: Agreed
The Government will amend the
Administrative Inquiries Manual as recommended, noting that the matter of
what constitutes a reasonable opportunity for familiarisation is a matter for
the decision of the President of the Board of Inquiry having regard to the
circumstances of each case
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Recommendation 33
12.44 The committee recommends
that the wording of Defence (Inquiry) Regulation 33 be amended to ensure that
a person who may be affected by an inquiry conducted by a Board of Inquiry will
be authorized to appear before the Board and will have the right to
appoint a legal practitioner to represent them.
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Government Response: Agreed in part
The Government notes that the substance
of this recommendation was agreed to following the 1999 senate Inquiry into
the Military Justice System, and Defence is finalising changes to Defence
(Inquiries) Regulation 33. The Government agrees that in cases where either
the appointing authority, before the inquiry starts, or the President of a
Board of Inquiry makes a written determination that persons may be adversely
affected by the Board’s inquiry or its likely findings, that persons will be
entitled to appear before the Board and will have a right to appoint a legal
practitioner to appear to represent them before the Board, if they wish.
Further, the Government agrees that where such persons are represented by an
ADF legal officer, or some other Defence legal officer, such representation
will be provided at Commonwealth expense, in accordance with standing
arrangements. The Government also agrees that the representatives of the
estate of deceased persons who have died as a result of an incident and may
be adversely affected by the Board’s inquiry or its likely findings, will be
entitled to be legally represented before the Board of Inquiry into that
incident. Consistently, the Government agrees that where the representative
of the estate of such persons choose to be represented before the Inquiry by
an ADF legal officer, or some other Defence legal officer, such
representation will be provided at Commonwealth expense, in accordance with
standing arrangements. It is noted that the identification of ‘persons
adversely affected’ involves the application of the principles of natural
justice; it does not automatically encompass every person who is, or may be,
a witness or has some other interest in the inquiry.
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Recommendation 34
12.120 The committee recommends
that: all notifiable incidents including suicide, accidental death or serious
injury be referred to the ADFARB for investigation/inquiry; the Chairperson
of the ADFARB be empowered to decide on the manner and means of inquiring
into the cause of such incidents (the Minister for Defence would retain
absolute authority to appoint a Court of Inquiry should he or she deem such
to be necessary); the Chairperson of the ADFARB be required to give written
reasons for the choice of inquiry vehicle; the Government establish a military
division of the AAT to inquire into major incidents referred by the ADFARB
for investigation; and the CDF be empowered to appoint a Service member or
members to assist any ADFARB investigator or AAT inquiry.
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Government Response: Not agreed
The Government agrees that there is a
need to demonstrate that ADF inquiries into notifiable incidents including
suicide, accidental death or serious injury are independent and impartial. To
meet this principle, the Government will propose amendments to legislation to
create a Chief of Defence Force Commission of Inquiry. CDF shall appoint a
mandatory Commission of Inquiry into suicide by ADF members and deaths in
service. The commission may consist of one or more persons, with one being a
civilian with judicial experience. Where the commission consists of more than
one person, the civilian with judicial experience will be the President. This
form of inquiry will be in addition to the existing arrangements for
appointment of Investigating Officers and Boards of Inquiry.
External independent legislative
oversight by Comcare will continue in relation to the conduct of all ADF
inquiries into notifiable incidents. This includes arrangements for
consultation with Comcare on the terms of reference, as well as options for attendance
or participation in the inquiry process.
State and Territory Coroners will
continue to review the outcomes of ADF inquiries into deaths of personnel.
The ADF is working towards completing a Memorandum of Understanding with
State and 21 Territory Coroners. The Defence Force Ombudsman will continue to
provide external independent legislative review of the conduct of ADF
inquiries. This may occur as a consequence of a complaint or by own motion
independently of the ADF.
The Government does not support the
concept of an ADFARB, as reflected in the response to recommendation 29, and
so can not agree to refer notifiable incidents, including suicide, accidental
death or serious injury to an ADFARB for investigation/inquiry.
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Recommendation 35
13.19 Building on the report
by the Australian Law Reform Commission, Principled
Regulation: Federal Civil and Administrative Penalties in Federal
Jurisdiction, the committee recommends that the ADF commission a similar
review of its disciplinary and administrative systems.
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Government Response: Agreed in principle
The report of the Australian Law Reform
Commission Principled Regulation: Federal Civil and 13 Administrative
Penalties in Federal Jurisdiction is focused on commercial and corporate
law matters, and not the employment of personnel. Any review of the military
justice system would require a broader basis that allows examination of all
aspects of the military justice system.
The Government agrees that in addition
to ongoing internal monitoring and review, Defence will commission regular
independent reviews on the health of the military justice system. Such
reviews would be headed by a qualified eminent Australian, with the first
timed to assess the effectiveness of the overhauled military justice system proposed
in this submission, at the conclusion of the two-year implementation period.
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Recommendation 36
13.27 The committee recommends
that the committee's proposal for a review of the offences and penalties
under the Australian military justice system also include in that review the
matter of double jeopardy.
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Government Response: Agreed in principle
The Government agrees to examine the
combination of criminal law and administrative action in terms of
best-practice military justice, noting that such a review will also satisfy a
recommendation from the Burchett Report to review the nature of the
punishments that may be imposed in the light of contemporary standards. This
review will be undertaken outside the broad review proposed at recommendation
35, and will be completed within the two-year implementation period.
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Recommendation 37
13.29 The committee recommends that the
ADF submit an annual report to the Parliament outlining (but not limited to):
(d) The implementation and effectiveness
of reforms to the military justice system, either in light of the
recommendations of this report or via other initiatives.
(e) The workload and effectiveness of
various bodies within the military justice system, such as but not limited
to;
-
Director of Military Prosecutions
-
Inspector General of the ADF
-
The Service Military Police Branches
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Government Response: Agreed
The Government supports the need for
transparency and parliamentary oversight of the military justice system and
will provide, in the Defence annual report, reporting on the state of health
of the military justice system. Reporting will include progress in the
implementation and effectiveness of reforms to the military justice system,
arising both from this report and previous reviews under implementation, and
the workload and effectiveness of the key bodies within the military justice
system. Defence will also amend the Defence (Inquiry) Regulations to provide
for an annual report on the operation of the D(I)R, fulfilling a
recommendation of the Burchett report. Defence will also report twice a year
to the Senate committee, on progress of the reforms throughout the two year
implementation process.
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Recommendation 38
14.46 To ensure that the
further development and implementation of measures designed to improve the
care and control and rights of minors in the cadets are consistent with the
highest standards, the committee suggests that the ADF commission an expert
in the human rights of children to monitor and advise the ADF on its training
and education programs dealing with cadets.
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Government Response: Agreed
The Government agrees to commission an
expert to examine whether the human rights of children are being respected.
The Government also notes that Defence has already implemented significant
policy initiatives under the Government’s Cadet Enhancement Program to
address shortcomings in the care and control and rights of minors in the ADF
Cadets, including:
-
implementation of a behaviour
policy, providing training and materials on the expected standards of
behaviour, and including guidance and advice on the handling of sexual
misconduct;
-
development of a wellbeing program,
specifically targeted at the mental health wellbeing of ADFC cadets;
-
introduction of an ADFC cadet
and adult cadet staff training enhancement program;
-
a review of child protection
policy and processes in line with State and Territory legislation;
-
a review of screening processes
for new staff; and
-
production of a youth
development guide for adult cadet staff.
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Recommendation 39
14.62 The committee recommends
that the ADF take steps immediately to draft and make regulations dealing
with the Australian Defence Force Cadets to ensure that the rights and
responsibilities of Defence and cadet staff are clearly defined.
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Government Response: Agreed
The Government agrees, noting that as
part of the significant work initiated under the Government’s Cadet
Enhancement Program, Defence is finalising amendments to the regulations that
will more than meet the Committee’s recommendations on the human rights of
minors.
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Recommendation SEQ
6B5Rec\# "0"\n 40
14.63 The committee recommends
that further resources be allocated to the Australian Defence Force Cadets to
provide for an increased number of full-time, fully remunerated
administrative positions across all three cadet organisations. These
positions could provide a combination of coordinated administrative and
complaint handling support.
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Government Response: Agreed
The Government agrees and notes that the
Service Chiefs have already provided additional resources to the ADF Cadets
to improve administrative support.
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*The Government does not agree to the recommendations
(1, 2, 3, 7, 8, and 9) that taken together propose the automatic referral of
investigation and prosecution of criminal offences with a Service connection to
civilian authorities.
The purpose of a separate system of military justice
is to allow the ADF to deal with matters that pertain directly to the
discipline, efficiency and morale of the military. To maintain the ADF in a
state of readiness, the military must be in a position to enforce internal
discipline effectively and efficiently. Breaches of military discipline must be
dealt with speedily and, sometimes, dealt with more severely than would be the
case if a civilian engaged in such conduct.
The maintenance of effective discipline is indivisible
from the function of command in ensuring the day-to-day preparedness of the ADF
for war and the conduct of operations. Justices Brennan and Toohey of the High
Court in Re Tracey; ex parte Ryan (1989) (and repeated by Justice McHugh in Re Colonel Aird; ex parte Alpert (2004)) said ‘Service discipline is not merely punishment for
wrongdoing. It embraces the maintenance of standards and morale in the service
community of which the offender is a member, the preservation of respect for
and the habit of obedience to lawful authority and the enhancing of efficiency in
the performance of service functions.’
As a core function of command, military justice cannot
be administered solely by civilian authorities. Recourse to the ordinary
criminal courts to deal with matters that substantially affect service
discipline would be, as a general rule, inadequate to serve the particular
disciplinary needs of the Defence Force. Further, the capacity to investigate
and prosecute offences under the Defence Force Discipline Act 1982 is necessary
to support ADF operations both within and outside Australia. The
Government does not accept that the DFDA—or more broadly the system of military
justice—is a “duplication” of the criminal system.
Importantly, jurisdiction under the DFDA for any
offence may only be exercised where proceedings can reasonably be regarded as
substantially serving the purpose of maintaining or enforcing Service
discipline—a purpose different to that served by the criminal law. Moreover,
extensive guidelines for the exercise of DFDA jurisdiction and the satisfaction
of this service connection test are set out in comprehensive Defence
instructions. It is a core element of the DFDA that not all criminal activity
is or should be dealt with by the military police.
The Government is also concerned that the civil code
does not have the disciplinary provisions required to keep order and encourage
discipline and cohesive teamwork, and may actively undermine the ability of
commanding officers to address disciplinary issues through the more expeditious
summary action 15 available under the DFDA. This particularly applies to those
cases that may be considered insignificant in a civilian context—petty theft
for instance—that may have serious implications for service discipline and
morale, and may seriously undermine the authority of a commanding officer to
maintain effective discipline. The proposed enhancements to the military
justice system seek to provide a balance between military effectiveness and
external oversight by ensuring that the system meets legal standards, conforms as
far as possible to community expectations, and provides reassurance to the
Parliament and the community that ADF members’ rights are being protected
without compromising the ADF’s ability to remain an effective fighting force.
It is based on the premise of maintaining effective discipline and protecting
individuals and their rights, administered to provide impartial, timely, fair
and rigorous outcomes with transparency and accountability. Where Defence
prosecution substantially serves the purpose of maintaining and enforcing
Service discipline, offences in Australia will be
dealt with under the DFDA.
Past challenges to the system of retention or referral
of cases in the High Court have been unsuccessful and the current system and
thresholds will be maintained, with determination decisions undertaken by the
Director of Military Prosecutions. Defence will work to improve the management
and effectiveness of the relationship between the military and civilian
authorities on referral issues. This will include reviewing and clarifying the
guidelines and examining the need for, and implementing as necessary, formal
arrangements with the states and territories for referral of offences. Defence
also intends to establish a common database for tracking referrals.
The Government is also of the view that outsourcing
the criminal investigative function would complicate proposed efforts to
address the problem of the capability of the military police. Military police
will still be required to perform criminal investigative roles if, for
instance, civilian authorities decline to investigate a matter, and
subsequently referred it back to the military police.
The Government has accepted recommendations 5 and 6,
to improve the quality of criminal investigations conducted by Service police,
including through the establishment of an ADF Joint Investigation Unit.