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Monday, 21 June 1999
Page: 6813

Dr THEOPHANOUS (12:31 PM) —On behalf of the Joint Standing Committee on Foreign Affairs, Defence and Trade, I have great pleasure in presenting the committee's report entitled Military justice procedures in the Australian Defence Force , together with the minutes of proceedings and evidence received by the committee.

Ordered that the report be printed.

Dr THEOPHANOUS —The Senate referred this inquiry on 25 November 1997 and, following the federal election, re-referred the matter on 10 March 1999. The committee was asked to examine the existing legislative framework and procedures for the conduct of military inquiries and ADF military processes. In addition to military inquiries and military discipline, the committee identified a further third interrelated component of the military justice system—administrative action. The report addresses each of these three quite distinct components of the military justice system. Each of these components—military inquiries, military discipline and administrative action—is expansive and the committee has not attempted a comprehensive examination of every detail of the military justice system. Rather, the committee has sought to examine the avenues for investigative and punitive action within the ADF to determine if current procedures are unfair, inappropriate or open to misuse.

A sound framework of procedures, policy and legislation underpins the current military inquiry and discipline systems of the ADF. Existing arrangements have been in place for several years and have proven effective. However, in recent times a number of military inquiries and disciplinary matters conducted by the ADF have become the subject of considerable public interest. Many of these cases involved the loss of lives of service personnel and perceived injustices to members of the ADF in their dealings with the military disciplinary system.

The considerable public attention focused on such cases has included questions regarding the effectiveness and independence of the current military inquiry system. In addition, there has been considerable public support behind calls for external inquiries—or, at the very least, external reviews of inquiries—in cases involving the death of an ADF member. The systems of discipline and administrative action employed by the ADF have attracted considerably less public attention, although aspects of the Defence Force Discipline Act have been challenged on several occasions in the High Court of Australia in recent years.

The committee acknowledged the considerable changes made to the military justice system during the course of the inquiry as the ADF moved to address the recommendations of Brigadier the Hon. A.R. Abadee's 1007 report, A Study into Judicial System under the Defence Force Discipline Act, and the Ombudsman's 1998 investigation into how the ADF responds to allegations of serious incidents and offences. However, the committee was not convinced that these ADF initiated changes will fully address both the perceived and the actual independence and impartiality of the military justice system.

Independence and impartiality in the military justice system was a strong theme throughout the conduct of the inquiry. The committee was aware that in cases involving the death of an ADF member many of those involved, particularly family members of the deceased, harbour strong feelings that the military justice system lacks independence. While the inquiry received no evidence to support an allegation of a lack of independence, there is no doubt that a strong perception exists that the military justice system lacks independence and impartiality. While acknowledging the need to address issues of independence and impartiality in the military justice system, the committee had a preference to do so without impeding the workings of the ADF. To this end, the committee retained a focus on the need for the system of military justice to function effectively across the whole spectrum of conflict in which the ADF can be expected to operate.

The committee acknowledged that the ADF has unique requirements for the administration of justice commensurate with its role in the defence of the nation. Moreover, these unique requirements exist as constraints and standards additional to the justice system that pertains to all citizens of Australia. Notwithstanding that members of the ADF voluntarily accept the imposition of an additional layer of justice when they choose to serve their country, the committee was firmly of the view that the military justice system must, so far as possible, conform with community norms and be demonstrably independent, impartial and fair.

The report tabled today contains 59 recommendations. Forty-five of these recommendations relate to the military inquiry system, seven recommendations relate to the system of military discipline and a further seven recommendations relate to the administrative action process employed by the ADF. While I do not have time to go through the key principal recommendations, I hope that the other speakers will do so. While the committee is of the view that these proposals will serve to improve the independence, impartiality and overall operation of the system, it is acknowledged that this report will be disappointing for some who saw the inquiry as an avenue of review for individual cases. (Time expired)