Section 3
Military Justice Reform update

3.1 Military Justice Reforms

In October 2007, the two year period provided for implementation of the agreed recommendations arising from the 2005 Senate Committee Report ended. The dedicated Military Justice Implementation Team (MJIT) established by the CDF to oversee the implementation process was disbanded in December 2007 and responsibility for oversight of the remaining reform initiatives passed to the Inspector General ADF (IGADF). Although impressive progress was made with the implementation of most of the agreed recommendations to December 2007, for various reasons, including the need for legislative changes, a number of the recommendations could not be completed within the two year implementation period. At 30 June 2008 six of the 32 agreed recommendations from the 2005 Senate Committee Report remained to be fully implemented. It is expected that the majority of these will be completed by the end of 2008. IGADF will facilitate the appointment of a high level selection committee to recruit up to eight part time military judges to supplement the existing three permanent judges early in 2008-09.

The 32 recommendations that were agreed for implementation are not minor. The changes to the military justice system that will result from these initiatives are the most far reaching since introduction of the Defence Force Discipline Act (DFDA) in 1985. They will, moreover, have been introduced over a considerably shorter timeframe than was the case with the DFDA which took over 20 years to bring to full fruition.

One of the major recommendations to be implemented during the reporting period was the establishment and commencement of the Australian Military Court (AMC) in October 2007. The AMC is a standing court and replaces the previous system of ad hoc trials by courts martial and Defence Force magistrates. The Chief Military Judge’s first annual report on the operation of the AMC covering the period 1 October – 31 December 2007, was tabled in Parliament on 26 May 2008.

Another important milestone achieved during the reporting period was the passage of the DLAA 2008 which received Royal Assent on 20 March 2008. Some amendments took effect on commencement and the balance will take effect from 20 Sep 08. DLAA 2008 introduces a wide range of enhancements to the ADF disciplinary system, particularly with regard to the conduct of Summary Proceedings. The need for an efficient, fair, and speedy method of disposing of less serious disciplinary offences is a basic requirement for the day to day maintenance of discipline in the ADF. The changes being made will address a number of long standing issues that should greatly improve the ability of the summary process to provide relatively simple, quick and fair disciplinary responses for command and ADF individual members alike.

For example, under the new arrangements for Summary Proceedings accused persons will be given the right to elect to be tried before the Australian Military Court (AMC) for all but a limited number of less serious commonly occurring service offences, as well as a right to appeal summary convictions and punishments to the AMC. Other key provisions of DLAA 2008 amendments regarding summary proceedings include:

Other significant generic changes to the military justice system introduced by the DLAA 2008 legislation include:

One of the final recommendations to be implemented in response to the 2005 Senate Inquiry Report is the requirement to provide for periodic independent review of the military justice system by a suitably qualified eminent person or persons. The first such independent review, administratively supported by the office of IGADF, commenced in April 2008. Former Chief Justice of NSW, Sir Laurence Street, AC, KCMG, QC and a former Chief of the Air Force, Air Marshal Les Fisher, AO (Retd) were appointed by the CDF to report on the effectiveness of the current reform program. The calibre of the review team reflects the importance placed by CDF on this task. The team will provide its report to CDF by 10 February 2009. Their report will be an important indicator as to whether the many reforms to the military justice system have been, or are likely to be, appropriate and effective and whether further evolutionary change is required.