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Monday, 18 October 2010
Page: 453


Mr MELHAM (3:10 PM) —My question is to the Minister for Defence. Will the minister advise the House on the creation of the position of Director of Military Prosecutions? Why is the independence of the Director of Military Prosecutions essential and what role does the government have to play in these matters?


Mr STEPHEN SMITH (Minister for Defence) —I thank the member for Banks for his question. He has a longstanding interest in matters related to justice. He asks me about the creation of the position of Director of Military Prosecutions. He asks me for the rationale for the independence of the prosecutor and he asks me what role, if any, there is for government in this matter.

The position of the Director of Military Prosecutions was of course created by legislation introduced by the Howard government, of which the Leader of the Opposition was a cabinet member, and it was passed by the parliament with bipartisan support including the support in the Senate of the now shadow minister for defence, Senator Johnston, in 2005. It had bipartisan support, as it should. The first and current Director of Military Prosecutions was appointed by the Howard government in July 2006. The creation of the position of Director of Military Prosecutions followed consideration of a number of reports including, importantly, a seminal Senate report in June or July 2005. When the report was received on 16 June 2005 in the Senate, Senator Johnston, the now shadow minister for defence, said—and he was referring to two reports:

The most crucial and telling aspect of both of those inquiries was that the reports handed down were unanimous. There was no party politics and no point scoring involved in this exercise.

That is a very good analysis for the House to take. It is a very good analysis for Senator Johnston himself to follow. It is a very good analysis for the Leader of the Opposition. It is an analysis which I know the member for Fadden has been following.

On 20 June 2008, again in committee, Senator Johnston, when considering some of the reforms proposed to Australia’s military justice system, said, ‘These statutory officers have to be completely independent.’ They are statutory officers, so the notions of complete independence and of no point scoring or partisan politics in these matters are referred to us as advice in analysis by Senator Johnston and we should follow that.

We have seen in recent times the first illustration of the Director of Military Prosecutions bringing charges against three Australian defence personnel, as a result of an incident in Afghanistan in February 2009 which saw the tragic death of six civilians. I make no comment on the incident itself; that would be inappropriate. I make no comment on the processes other than to say that they are properly independent of government, as they should be, and that we allow the military justice system to take its course.

The one fundamental change that we are dealing with here has been the creation of the position of Director of Military Prosecutions, presented to the parliament by the Howard government and supported by legislation during its time. It is the provision of that legislation that in the course of consideration of the Director of Military Prosecutions bringing a charge or charges that defence service chiefs, the Chief of the Defence Force or his representatives, can make representations under section 5A of the legislation to the military prosecutor about general defence matters, not about guilt or innocence or whether charges should be preferred or not. Indeed, in this case when asking for such representations the Director of Military Prosecutions expressly advised the CDF not to make comments about preferring of charges or not because that would impact upon her independence.

It is of course clearly inappropriate for the government of the day to seek to inveigle itself into these matters. Where there is a role for government, of course, is to ensure, as I, the Chief of Army and the CDF have made clear, that the three personnel concerned have access to whatever legal resources and advice they require to properly defend themselves as well as other appropriate support and advice from the defence forces so far as their families are concerned as they go through a very difficult process. We have no alternative, as a result of legislation passed by the House and the Senate, other than to respect that independent process.