Military Justice
Changes to the military discipline system
The Australian Military Court (AMC) was established on 1 October 2007 to try serious service offences involving ADF personnel. On 26 August 2009 the High Court of Australia declared the provisions of the Defence Force Discipline Act 1982 (DFDA) establishing the AMC were invalid. The High Court’s decision removed the AMC from the military discipline structure.
Background
Prior to the establishment of the AMC on 1 October 2007, serious service offences were tried by courts martial and Defence Force magistrates. After the High Court found the AMC unconstitutional, all matters before the AMC were suspended, and modified summary authority proceedings were introduced. Legislation was enacted to reintroduce the former system of trials by court martial and Defence Force magistrate from 22 September 2009.
Current Arrangements
The military justice system was fully restored on 22 September 2009 to the system that existed before 1 October 2007. This means that the former system of courts martial and Defence Force magistrate trials are now back in operation. A permanent replacement for the AMC requires legislation which is expected to be introduced to Parliament either late 2010 or early 2011.
What does this mean?
The High Court ruled that all convictions recorded by the AMC between 1 October 2007 and 26 August 2009 were invalid. This means that any ADF member who was convicted by the AMC during this period does not have a conviction nor do such persons have a criminal record.
However, the legislation that came into effect on 22 September 2009 gives effect to the punishments imposed (except imprisonment) and orders made by the AMC.
Additionally, all members who were convicted and punished by the AMC or, in some cases, a summary authority (such as a Commanding Officer) had their punishment reviewed automatically or had a right to submit a petition for a ‘punishment review’ where applicable.
The effectiveness of Australia's Military Justice System
The Senate referred the matter of the effectiveness of Australia’s military justice system to the Senate Foreign Affairs, Defence and Trade References Committee for inquiry and report in October 2003. In June 2005, the committee tabled its report, The effectiveness of Australia's military justice system. The committee concluded there was a need for a wholesale review of the military justice system and made 40 recommendations proposing significant enhancements to the system.
In October 2005, the Government Response to the Senate Committee Report was tabled. In all, 32 recommendations were accepted.
Since then, Defence has been working to overhaul the military justice system in response to the report, putting in place the significant changes the system has seen in more than 20 years.
To date, 27 recommendations are complete (current March 2009).
Changes
The reforms fundamentally change almost every element of the military justice system. How Defence:
- investigates, prosecutes, represents, tries and reviews under the disciplinary system;
- conducts administrative inquiries and manages complaints;
- audits, reviews and reports the military justice system;
- trains and prepares its people - including, our Service Police, legal officers, inquiry officers and commanding officers; and
- exercises its duty of care for its people, including members of the ADF Cadets.
Independent review of the changes
One of the final recommendations of the Government Response to the Senate Committee Report was to review the effectiveness of the overhauled military justice system.
The report recommended Defence commission regular independent reviews of the health of the military justice system, with the first timed to assess the effectiveness of the overhauled military justice system at the conclusion of the two-year implementation.
Sir Laurence Street and Air Marshal Les Fisher (Ret’d) lead the first independent review. The report was released in March 2009 entitled Report of the Independent Review on the Health of the Reformed Military Justice System.
The report, the first of its kind under the new review arrangements, provides the Chief of the Defence Force with an independent evaluation of the effectiveness of the reforms made to military justice to date. The CDF and Defence are now considering the Report and its recommendations to develop an action plan.
More information is also available in the review’s Terms of Reference.
Links:
Senate Inquiry | Investigative capability reform | Learning culture inquiry | Reports | The effectiveness of Australia's military justice system