Defence

Military Justice

Progress on implementing enhancements to the military justice system

In the first 11 months of a two-year implementation period, Defence has achieved significant reforms to its military justice system. According to the Head of the Military Justice Implementation Team, RADM Mark Bonser, the reforms being put into place will deliver impartial, rigorous and fair outcomes through enhanced oversight, greater transparency and improved timeliness.

I would like to highlight progress made to date in implementing these enhancements, which were outlined in the Government’s response to the 2005 Senate Committee’s report into ‘The Effectiveness of Australia’s Military Justice System’.

The military justice system is critical to the operational effectiveness of the Australian Defence Force (ADF) and the protection of individuals and their rights. The 2005 Senate report provided us with the opportunity to enhance both the discipline and administrative aspects of the system.

These reforms and enhancements are changing fundamentally almost every element of the military justice system: how we investigate, prosecute, represent, try and review under the disciplinary system; how we conduct administrative inquiries and manage complaints; how we audit, review and report the military justice system; how we train and prepare our people – including, our Service Police, legal officers, inquiry officers and commanding officers; and, how we exercise our duty of care for our people, including members of the ADF Cadets.

The changes so far

A strong military justice system underpins our discipline and command structures, and by providing the balance between discipline and the rights of individuals, the system ensures that our personnel work in a fair and just environment.

To date, 19 of the 30 agreed recommendations from the Senate report have been completed, with a number of other recommendations close to completion or well under way. These enhancements make significant improvements to the impartiality, rigour and timeliness of investigations, prosecutions and trials under the discipline system, and also to the management of complaints and conduct of inquiries under the administrative system. In addition, they address improvements in the management of ADF Cadets.

Reporting on the state of health of the military justice system was included in the 2005-2006 Defence Annual Report and will be an ongoing element of this report. Additionally, the Senate Standing Committee receives six-monthly reports (April and October) relating to the progress of the reforms throughout the two-year implementation period.

ADF’s investigative capability improved

An important step in improving the ADF’s investigative capability was the appointment of the Provost Marshal ADF (PM ADF), Colonel Tim Grutzner. The PM ADF is responsible for the conduct of Service police investigations into complex incidents affecting the ADF. He will also be responsible for implementing relevant aspects of the Government response to the Senate report and outstanding recommendations from previous inquires and reviews affecting Service Police.

The next step was a tri-Service audit of ADF Service Police investigative capability. The Chief of the Defence Force, Air Chief Marshal Angus Houston, released the report of this audit on 4 December 2006. It made a number of recommendations for achieving best-practice policing in the ADF and confirmed the Government’s intention to establish a joint ADF investigative unit that would be independent of the Service chains of command.

The newly-established joint ADF Investigative Service will examine the more serious incidents with a Service connection. This will fundamentally change the way policing in the ADF is organised and conducted. The unit, headed by the PM ADF, will provide a central point of contact for consultation with civilian authorities on more serious offences. Service police will benefit enormously from the improved procedures, expertise and standards this capability will bring to the ADF.

The deployment of lead-in Service Police investigation teams to Iraq, Afghanistan, the Solomon Islands and Timor-Leste will further improve this capability. Their deployment will ensure timely investigations and the preservation of evidence.

These new arrangements will overcome the possibility of undue command influence in the conduct of investigations, whether real or perceived, by removing the investigation function from the Service chains of command.

These positive steps will make sure that the ADF military justice system delivers impartial, rigorous and fair outcomes both at home and on deployed operations.

The discipline system reformed

A new Australian Military Court (AMC) will replace the current Courts Martial and Defence Force Magistrate trials. It will also be independent of the chain of command.

Legislation to create the AMC was passed by Parliament on 5 December 2006 and received Royal Assent on 11 December 2006, and the AMC is expected to commence no later than 1 October 2007.

The AMC will satisfy important principles of impartiality and judicial independence, through:

• statutory appointment of legally qualified military judges;
• security of tenure (10 year fixed terms);
• remuneration set by the Commonwealth Remuneration Tribunal;
• mid-point routine promotion during tenure;
• appointment by the Governor-General;
• sufficient para-legal support to be self administering; and,
• judges to sit alone or with a jury in the case of more serious offences (military judges presiding).

The AMC will have the same jurisdiction as that applying to the current Courts Martial and Defence Force Magistrates. It will only exercise jurisdiction under the Defence Force Discipline Act where proceedings can reasonably be regarded as substantially serving the purposes of maintaining or enforcing discipline. Where appropriate, civilian criminal matters will continue to be referred to the civilian jurisdictions.

The legislation also introduced enhanced rights of appeal on both conviction and punishment to the Defence Force Discipline Appeals Tribunal.

A number of statutory positions have also been established and filled to further increase the impartiality of the prosecution, trial and inquiry processes. These include the Director of Military Prosecutions, Brigadier Lynette McDade, Chief Judge Advocate, Brigadier Ian Westwood and the Registrar of Military Justice, Colonel Geoff Cameron. The position of Director of Defence Counsel Services, Group Captain Christopher Hanna, has also been established to improve the availability to ADF personnel of Defence counsel services.

Redress of grievance management system backlog cleared

There is no longer a backlog of cases that caused undue pressure on the complaints resolution system. I should add that the Defence Force Ombudsman, Professor John McMillan, has noted a marked improvement in Defence’s overall handling of complaints and investigations and, particularly, in improving the timeliness in dealing with cases. He cited clearing the backlog of redresses of grievance (ROG) as a positive example of the Senior Leadership’s determination to improve the military justice system.

Our intention is now to ensure that the processes we put in place deliver fair and timely decisions. Timeliness and transparency in dealing with complaints and ROGs are of paramount importance. The first step in streamlining the management process has been the standing up of the Defence Fairness and Resolution Branch, headed by Ms Di Harris as the central management body. The branch is outside of the ADF chain of command/normal line-management and will manage all complaints and grievances (with the exception of complaints made under the Defence Whistleblower Scheme, which will continue to be managed by the Inspector General Group).

Streamlined and effective complaints management

While resolving ROG remains a responsibility of command, they are now registered with Fairness and Resolution within five days of initiation, with the branch providing advice to commanders on the appropriate investigation and management of the grievance. In future, the branch will be empowered to take over the management, if necessary, of any cases unresolved by commanders 90 days after lodgement. In all cases, Fairness and Resolution will be the central point for monitoring progress and resolution. A single register for tracking complaints across the ADF will also be implemented.

An important aspect of the coordinating role of Fairness and Resolution is that opportunities for the use of alternative dispute resolution processes can be identified and better outcomes potentially achieved for all involved.

A range of other improvements to the ROG system are being implemented, including improvements in training of commanding officers and investigating officers.

Establishment of the Inspector-General ADF

The Inspector-General ADF, Mr Geoff Earley, has also been established as a statutory position to provide the CDF with a mechanism for internal audit and review of the military justice system. The position is independent of the ordinary chain of command and will be an avenue by which failures and flaws in the military justice system can be exposed and examined so that any cause of injustice may be remedied.

The achievements I have outlined here demonstrate that we are making good progress in enhancing our military justice system. This system is critical to the operational effectiveness of the ADF and to the protection of our people and their rights. But much work remains to be done over the next 12 months and beyond to complete and sustain these reforms

The Secretary and CDF, together with the Service Chiefs, remain strongly committed to a fair and just Defence workplace and will continue to personally drive the required changes.

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