Executive summary

The Australian Defence Force (ADF) military justice system is comprised of four elements: disciplinary arrangements under the Defence Force Discipline Act 1982 (DFDA); adverse administrative action; the conduct of inquiries; and the right to complain. The system must support commanders in achieving their respective operational objectives in an effective manner while at the same time providing, and being seen to provide, fairness to individual members. Military justice is not a concept that operates intermittently, but every day within every ADF unit. It is an integral component of ADF operational capability and is inseparable from the function of command. Without it the perception and indeed, the reality, of the ADF as a highly capable and reliable volunteer military force would be compromised. Leadership focus to ensure that the ADF is supported by an effective and fair military justice system has therefore properly remained a high priority throughout the reporting period.

During 2007-08 further substantial progress, including the passage of key legislation, was achieved in the maturation and implementation of military justice reforms arising from the Government’s agreement to recommendations from the 2005 Senate Standing Committee on Foreign Affairs, Defence and Trade’s Report into ‘The Effectiveness of Australia’s Military Justice System’ (the 2005 Senate Committee Report). Close monitoring of the implementation of the military justice reform program continued both internally and externally with comprehensive updates being provided to the Senate Standing Committee in September 2007 and June 2008.

Of particular interest during the reporting period has been the further development and refinement of a range of reporting systems to monitor discipline, inquiry, and complaints management processes. These reporting systems are intended to enhance transparency and accountability to enable a more effective general oversight of the military justice system. This will assist in the more timely identification of problems and remedy an acknowledged systemic deficiency that has been evident in the past with the ready availability of this type of contemporary military justice data.

The ADF military justice reform program has drawn upon many useful features of the military justice arrangements practised in a number of other allied jurisdictions. There is strong reason to believe that the ADF reform program will offer a unique and capable system that is not only well suited to ADF circumstances but is likely to represent best practice across a range of indicators in military justice activities, both in regard to the maintenance of discipline and protection of the individual.

For the preparation of this report, IGADF relies on a broad source of information collected over the year. Statistical information is provided by Fairness and Resolution Branch, Provost Marshal ADF and the Service provosts marshal, as well as three databases managed by IGADF: the Conduct Reporting and Tracking System (CRTS), the Australian Defence Force Administrative Inquiry Tracking System (ADFAITS) and its own internal Case Management System (CMS). Additional narrative input is provided by the Director Defence Counsel Services and Fairness and Resolution Branch directors. Comments and observations from statutory authorities under the DFDA are not included as they report separately and independently to Parliament.

Military discipline

Based upon data gained from the ADF unit military justice audits program and data from the Conduct Reporting and Tracking System (CRTS), discipline across the ADF appears to have remained generally well maintained and administered equitably and fairly during the reporting period. Time taken to investigate alleged offences disposed of at the summary level has reduced markedly and, overall, offenders are brought to trial within established time frames (21 days). This compares very favourably with the new summary procedures to be introduced by Defence Legislation Amendment Act 2008 (DLAA 2008) whereby summary authorities will have up to three months to bring matters to trial once charges have been preferred.

At unit level, discipline training remains an issue. In particular, a significant number of Junior Non-Commissioned Officers (JNCO) lack sufficient DFDA knowledge to recognise that an offence may have been committed and an equally significant number of Junior Officers lack confidence in their ability to discharge their responsibilities as Defending Officers. In the latter case, ‘just in time’ training is normally provided by the unit discipline staff. The development and delivery of a comprehensive suite of discipline training packages for various categories of ADF personnel in preparation for the introduction of the revised summary justice system in September 2008 can be expected to assist with improving basic knowledge levels.

Overall, the standard of discipline across the ADF is assessed as satisfactory. As was the case in the previous reporting period, absence without leave, failing to comply with a general order and prejudicial conduct present as the more frequently committed lesser offences. Defence Travel card (DTC) fraud was the most frequently occurring offence dealt with outside of the summary justice system.

Adverse administrative actions

Adverse administrative actions are designed to admonish and correct unsatisfactory or unacceptable performance and are initiated and then managed by more senior officers. It might then be expected that this would lead to greater assurance that matters would be dealt with robustly, appropriately and in a timely fashion. However, seniority alone will not necessarily ensure good administrative outcomes. Like other elements of the administrative system, good quality administrative sanction processes and outcomes are directly related to knowledge and experience of administrative officers, local area support by legal officers, local area mentoring for junior administrators, good record-keeping practices and, most importantly, stability in appointments for unit administrators.

There are clear indications that considerable improvement has been achieved in the past twelve months although posting stability in key administrative appointments remains a factor in the quality of administrative outcomes.

Conduct of administrative inquiries

IGADF unit military justice audits indicate that general awareness of and compliance with recently published DI (G) ADMIN 67-2 Quick Assessment (QA) is satisfactory. That the process is being used is evidenced by the fact that some 340 QAs were conducted into allegations of unacceptable behaviour alone during the reporting period Where deficiencies in process were noted in some units these were mostly related to the inexperience of QA officers tending to exceed the stated aim and allowing the QA to become a quasi-Routine inquiry. The main problem with this, apart from the likelihood of procedural fairness obligations being overlooked, is that the QA often takes much longer than it should to complete thereby delaying command’s ability to shape the most suitable course of action.

The right to complain

At grass roots level, it is readily apparent that there is a more mature approach to the complaint submission and handling process than has previously existed. This can be largely attributed to a changing culture within the ADF where members are more aware of their rights, and are more willing to place greater trust in the chain of command that they will be treated fairly. Reassuring evidence of this has been noted in the feedback from focus groups conducted as part of IGADF unit military justice audits.

During the reporting period substantial changes, details of which are contained elsewhere in this report, were made to the Defence Force Regulations and policy dealing with the redress of grievance process. The changes, which provide for a speedier and more transparent complaints handling process, also impose a number of limitations on who may submit a grievance and the subject matter that may be redressed. Overall, the new arrangements effect some overdue improvements to the complaints handling process and have not, to date, resulted in complaint to the IGADF about their operation.

Conclusion

While it is appropriate to acknowledge that individual instances of unfair treatment do occur from time to time, they are the exception rather than the rule, and it can be stated with considerable confidence that, overall, an appropriate balance between the rights of individuals and operational imperatives is being achieved and maintained.