Executive summary
Introduction
The committee has examined the Australian Defence Force's (ADF)
second status report on the progress of reforms to Australia's military justice
system. Since its last report in August 2006, a number of reforms have been
implemented such as the establishment of a permanent military court. This court
represents a significant change in the structure of the ADF's discipline system.
It recognises the importance of military judges operating independently of the
chain of command and with security of tenure and remuneration. There has also
been a notable increase in the number of staff in the Office of the Director of
Military Prosecutions. The committee also welcomes the development that all
legal officers in the Office now hold practicing certificates. Finally, the committee
is pleased to note preliminary indications that the redress of grievance
process has improved.
The committee also looked critically at the findings of two
recent reports: one inquiring into the ADF's investigative capability; and the
other into the learning culture in ADF training establishments.[1]
In addition, it considered inquiries into the sudden death of Private Jacob Kovco
and of Trooper Angus Lawrence. All inquiries exposed continuing deficiencies in
procedures and practices. The committee was particularly concerned about the
close connection between their findings and those of the 2005 inquiry into Australia's
military justice system.
Investigative capability
A recent audit of the investigative capability of the ADF found
that the ADF investigative capability was in serious decline. It stressed that despite
being reviewed, re-organised, restructured and downsized over the last fifteen
years, Service Police (SP) still lacked 'clear purpose and direction, a senior
"champion" or advocate to advance their interests, adequate
leadership, and modern policy, doctrine, training and tradecraft'. The audit
report concluded that the SP investigative capability had:
...reached the point where fundamental questions could be asked
whether the service it provides justifies the significant resources expended on
it. However, given the Government’s decision that the ADF will retain its
investigative capability, remediation must not be further delayed. It is very
likely that unless action is taken as a matter of priority, the capability’s
depleted condition will eventually be evidenced either by its collapse or by
the inability of the ADF to respond appropriately to a serious, sensitive
event.[2]
The committee takes particular note of the finding by the
audit team that the dominant ADF command culture exerts influence on SP
investigations. The audit report observed that many commanders were ignorant or
dismissive of the limitations of, or restraints on, their command authority
when an incident leads to a SP investigation.[3]
The findings of the Board of Inquiry into the death of Private Jacob
Kovco further underlined concerns about the capacity of investigating
authorities in the ADF. It emphasised the need for immediate and decisive action
by the ADF to rectify the many problems besetting its military police service.
It found shortcomings in ADF processes concerning the handling and preservation
of serious incident sites and physical evidence and of the passage of
information about the details of serious incidents.[4]
For example, the inquiry found that the room in which Private Kovco died was
not properly secured for the preservation of all evidence in the room. The
Board stated, 'Put simply, there were too many ADF personnel entering Room 8
after the shooting'.[5]
It also found that statements taken by the special
investigators branch from all relevant SECDET IX (9th Security Detachment (Iraq))
members as part of the investigation 'were in part "templated" in
order to save time'. It regarded this practice, 'irrespective of the reason, as
less than ideal'.[6]
The ADF has undertaken to adopt most of the recommendations
coming out of these reports. The committee's confidence in the successful
implementation of the ADF's undertakings, however, is tempered by the repeated
failures of the ADF to implement effective reforms following the reports and
reviews of the investigative capability of the military police service. It
should be noted that recommendations to improve the investigative capability of
the service police were made as far back as 1998 by the Commonwealth Ombudsman;
by the Joint Standing Committee on Foreign Affairs, Defence and Trade in 1999,
again by the Joint Standing Committee in 2001; by Mr J. C. S. Burchett
Q.C. in his 2001 report into military justice in the Australian Defence Force; the
commissioned report by the Inspector General ADF into the East Timor Special Air
Service investigation (confidential document); the 2004 Ernst & Young
Report; and by this committee in June 2005.
Following each report, the ADF indicated that reforms were under
way that would address the many problems plaguing the military police services.
For example in January 1998, the Commonwealth Ombudsman stated:
Looking ahead, during 1998 the ADF is intending to commence a
review into the tri-service investigation and policing capability for the ADF,
which I understand will also address training issues. I am satisfied that every
effort is being made to ensure that Service police will be adequately trained
in the future, and that accreditation processes will promote adequate guidance
and documentation for their investigative functions.[7]
The same inadequacies, however, remain.
Without doubt, the findings of the two recent reports add to
the long-standing and increasingly urgent call for the investigatory competence
of SP to be addressed. The committee believes that the intended and promised
reforms must be implemented on this occasion or the operation of the SP will be
fatally imperilled.
Although the committee is cautious in accepting that this time
real and effective reforms will lift the standard of the SP's investigative
capability to an appropriately high standard, it commends the Chief of the Defence
Force, Air Chief Marshal Angus Houston, for making public the audit report
which exposed such inadequacies. The committee recommends that the ADF
follow-up its audit of the ADF's investigatory capability with another similar
comprehensive and independent review in three years time that would use the
recent audit as a benchmark.
Independence of investigating officers
During the public hearing on 26 February 2007, the committee raised the matter of the independence and impartiality of an investigating
officer involved in the inquiry into the death of Trooper Angus Lawrence. Angus
Lawrence died from acute heat stroke while attending a Subject One Course for
Corporal. The coroner recommended that:
...the Chief of Army review (once again) the position of some of
those responsible for allowing the exercise to occur during which the deceased
became ill. I accept the evidence of WO2 Wallace that he specifically warned
higher command that exercises at the place, and at the time of year, during
which the deceased became ill would lead to death. This warning was echoed to a
significant extent by WO1 Lucas. I note that WO2 Wallace gave oral evidence
about this warning at the Inquest, as well as in his statement which had been
made quite some time before the Inquest. Nothing I heard or read suggests that
this explicit warning was not given. I remain unsure that this warning was
taken seriously enough or that the response was appropriate enough in the
circumstances.[8]
According to evidence taken at the committee's public
hearing on 26 February, as a result of the coroner's statement, the Chief of
Army asked Colonel Mike Charles, who was the initial investigating officer, to
inquire into the circumstances of the statements made by Warrant Officer Wallace.
The results of Colonel Charles' review were presented to General Leahy on 26 January 2006.
The committee raises a number of concerns about the conduct
and findings of Colonel Charles' third review. The most significant is the
perceived independence of the investigator. Indeed, the request by Lieutenant General
Leahy for an officer to review his own investigation goes to the heart of the
matter of the investigator's independence. The coroner had already questioned
the findings of Colonel Charles that only systemic failures caused or
contributed to the death. Yet he was the very officer asked to review his own initial
findings.
This concern, however, is not the only one. The committee
has serious misgivings about a number of aspects of the investigations into
Trooper Lawrence's death. They relate not only to the independence of the
investigator reviewing his own investigations, but to the work done by Army in
preparing a report for the coroner, Army's response to the coroner's findings
and the manner in which, after its third review, Army informed the coroner of
'new evidence'.
The committee intends to pursue this matter further. It will
be seeking additional information from the Army and will report in greater
detail on its findings.
For the moment, the committee takes this opportunity to repeat
its findings contained in the 2005 report into Australia's military justice
system:
One of the most persistent concerns raised by witnesses involved
conflicts of interest and the perceived unfairness of the investigation
process. Any perception that an ADF inquiry lacks objectivity and impartiality
undermines the integrity of the whole military justice system.[9]
In the committee's view, the ADF must address this problem of
perceived bias which undermines the integrity of the administrative inquiry
process. It should do more to eliminate this perception.[10]
Review of the Defence Force Disciplinary Act
The Report of an Audit of the Australian Defence Force
Investigative Capability found the Defence Force Disciplinary Act (DFDA)
had 'simply had its day'. It described the document as 'outdated and
anachronistic' and suggested that it 'does not match modern disciplinary, legal
and policing requirements'.[11]
The audit noted that the DFDA had not undergone a fundamental review for over a
quarter of a century.
The call for a review, however, is not new. The audit's
finding that the DFDA needs to be up-dated is consistent with those of previous
reports dating back to the 1989 Report of the Defence Force Discipline
Legislation Board Review.
The committee supports the call for a comprehensive review
of the DFDA. It notes Defence's response and its intention to 'continue a more
detailed review'. The committee would hope that the intention is for an
independent, thorough and complete review of the DFDA and not ad hoc changes to
it. The committee suggests further that the independent review be made public.
ADF culture
A recently conducted audit into the learning culture of the ADF
did not appear to have a benchmark against which to measure changes. Even so,
it went on to find clear evidence of improvements in behavioural standards in
all the training establishments it visited and of 'universal knowledge of ADF
policies of zero tolerance of bullying and harassment'.[12]
Although the audit team gained a strong impression that the
level of direct bullying of those perceived to be performing poorly by trainers
or trainees was generally low given the rules on inappropriate behaviour, they
found other forms of more subtle abuse 'not uncommon'.[13]
For example:
More generally, it was apparent that few trainees were assisted
to develop skills in working and dealing with others, other than through the
forceful promotion of ‘teamwork’. One trainee said: ‘People become victims
because they let the team down.’ Another said: ‘There needs to be a change of
culture where we can ask for help with a discipline problem. Now I feel I have
failed my job if I ask for help.’ Those who were not contributing to the team
tended to be isolated and ignored (with the risk of being bullied), rather than
being assisted and supported by their peers, or their peers seeking assistance.
The culture seems to encourage trainees to be negatively judgmental about their
peers as demonstrated by the frequency of terms such as ‘chitters’,
‘malingerers’, ‘marginals’, ‘jack’, ‘gobbing off’ and ‘bludgers’.[14]
Other examples taken from the audit report and cited in the main
body of this committee's report describe a culture that 'seems to be so
judgemental and disrespectful' toward those deemed to be 'on the wrong bus'.
Reports in 2001 and 2003 and the 2005 report on Australia's military
justice system found elements of the same culture. The committee is deeply
concerned that three years on from the 2003 report into the death of Jeremy
Williams and after much publicity, especially after the committee's 2005
report, such attitudes can still be detected in ADF training schools.
Despite indications that incidents of disrespect toward, and denigration
and ostracism of, ADF members deemed to be 'failures' still occur, the
committee commends the ADF and in particular, the CDF for commissioning the
recent audit and for making public its findings. It also notes the firmness and
resolve of the CDF in asserting that the military justice system will be
improved:
Let me assure you, this is the most comprehensive implementation
we have ever had of the military justice system in the ADF. The chiefs and I
get a report every month from Admiral Bonser on how the implementation is
going. We are leaving no stone unturned. We are totally committed to fixing the
system.[15]
The findings of the inquiry into the learning culture in the
ADF underscored the need for the ADF to continue, and strengthen, its endeavours
to change its culture. The committee encourages the CDF to continue the
practice of independent review of key aspects of the ADF. The committee also
notes the chapter in Defence's Annual Report devoted to the military justice
system that includes information such as the Defence Attitude Survey. Again,
the committee encourages Defence to continue this type of open reporting.
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