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Wednesday, 9 November 2005
Page: 27

Senator MARK BISHOP (11:21 AM) —The Defence Legislation Amendment Bill (No. 2) 2005 is of some consequence for one reason: it is the first time for many years that the Howard government has done anything at all about the dreadful condition of military justice in the Australian armed forces. In the last 10 long years of this government, the problem has simply been put on the long handle and it has continued to fester. There have in fact been six major reviews in this time. That does not include the most recent review by the Senate Foreign Affairs, Defence and Trade References Committee.

This bill seeks to implement only a few of the recommendations of two of those inquiries. The first was that conducted in 1997, some eight years ago, by Brigadier the Hon. Mr Justice Abadee and the second was that by Mr Burchett QC in 2001, four years ago. That is the snail’s space at which this important matter has been progressed. For that alone the government stands condemned. In the entire period of its term of office the welfare of ADF personnel has amounted to little. In that entire period we have seen a saga of controversy and the tragedy of lives unnecessarily and prematurely ended and careers ruined. Almost weekly the media has revealed a new story of bullying, harassment, vindictiveness, cover-up and, of course, denial.

Sadly, it took the parliament itself to intervene. As we know, the Senate foreign affairs committee has now reported. The government also has now responded. We are, of course, grateful to that committee for its work. We should also note, and be grateful to the minister for, the timely response of the government, made early last month. It must be noted, however, that the bill before us today has nothing to do with that latter report. It deals with only the two preceding inquiries mentioned above, although there are some parallels.

Let me turn to the substance of the bill. The bill makes four amendments to the Defence Force Discipline Act and one amendment to the Defence Act. The first amendment I will deal with concerns the Chief Judge Advocate. By this bill, the Remuneration Tribunal will determine the remuneration for this important position. This is not just symbolic, for reasons of independence; it is also quite practical and therefore, as it is necessary and practical, warrants no further comment. The other three amendments entail important structural and institutional reform to the military justice system. Together they are overdue. They are also welcome at last.

The first converts the current position of the Defence Military Prosecutor, the DMP, to a full-time independent statutory position. Currently the DMP is a part-time position. It has only an advisory role in its prosecution process and is totally managed and controlled by the chain of command. This amendment removes that management and control from the military and transfers them the DMP. Henceforth, the DMP will determine which cases go to trial, either before a court martial or before a defence magistrate. This is a significant leap forward from current circumstances. Control by the chain of command currently compromises the entire system. In principle, therefore, prosecutions henceforth will ostensibly be independent of and removed from that influence.

Similarly, the bill also creates the position of the Registrar of Military Justice. This is ancillary to the DMP. The registrar will oversee and manage the prosecution process, formerly the responsibility of the chain of command. The registrar, like the DMP, is a statutory appointment, independent of the chain of command. That, too, is a change for the better. On the face of it then, the entire management of the prosecution process is subject to the standard processes which exist in the civilian system.

Associated with both the amendments just discussed is a third. That amendment removes the current authority of the chain of command for the tasks performed in the future by the DMP and the registrar. Currently, such officers are known as ‘convening authorities’. They will now be termed ‘superior authorities’ but, importantly, with different functions. They are now to provide the linkage between the DMP and the registrar as independent officers with the ADF. That is part of the larger process. It commences with the investigation of offences, the welfare of defendants and the consequences for those found guilty. This is, of course, an important point.

It begins the notion of independence for the DMP from the military. But it must also be said it is quite different from the recommendations made by the aforementioned Senate committee. The Senate committee’s unanimous preference was for the entire military justice system to be independent of the military—not just elements of it. The government in its wisdom has chosen to reject that model. The government’s rationale for that rejection is that military justice is an intrinsic part of military discipline and cannot be and should not be separated from the latter. Hence, it cannot be separated into a civilianised stream. In our view, the independence of the DMP and the registrar therefore remains compromised. It operates in a formal relationship within the rest of the existing system. This is inevitable, given the government’s in principle decision to leave the management of military justice with the military.

We need to understand the consequences of this decision. The Senate committee found the entire system of military justice existed in a state of compromise. The compromise was from start to finish, not just the prosecution element dealt with in this bill. The Senate committee found the investigation of offences the biggest single failing of the military justice system—and here I mean both civil offences and traditional military discipline offences. In short, resources, skills and support were identifiably poor in the military police and the entire military justice system. The end result of that is a failed system of investigation. This, in turn, currently feeds into a compromised and unfair system of prosecution. This bill goes some way to addressing the latter, but the former remains intact. No matter how good these amendments might be in setting up a degree of independence, the rest of the system compromises these welcome changes. That, however, requires us to go outside the terms of this bill.

The government accepted some recommendations of the committee. We will now look at them. The key one is to conduct a triservice audit of current military police. This is intended to establish the best means for developing improved investigative capacity. Further, the government also announced that it will establish a joint investigation unit. This follows an earlier start in 2004 which did not proceed. An ADF provost marshal outside the services chain of command will head this new unit. Civilian investigators and resources will supplement service police.

The government has said it will also upgrade resources and raise skill levels. We hope that this initiative, when functional, will go some way to addressing the trenchant criticisms of the Senate committee. Equally, we hope that it will reduce the compromise impacting on the operation of the new DMP. The opposition will monitor closely the development and implementation of those new arrangements. There is a yawning gap between the committee recommendations and the response of the government. We need to remember again that this bill has little at all to do with that latter report. There is a long way to go before significant reforms start to bite.

The final amendment in this bill is to the Defence Act. In short, it provides for the statutory appointment of the Inspector-General of the Australian Defence Force. This position, already created administratively, has responsibility for the other stream in military justice—that is, the investigation of complaints and grievances. This position is also independent of the chain of command. It is charged with the oversight of the entire grievance and complaint investigation process. This starts at the individual unit level where grievances first arise and proceeds through inquiry and review. Of all the matters considered by the Senate committee in its recent inquiry, this was the most voluminous. It was and remains a subject of great concern.

The amendment bill before the Senate arises from previous reviews, not the recent one by the Senate committee. The committee instead recommended that the inspector-general’s position be abolished, as well as that of the defence ombudsman and the current Complaint Resolution Agency. Those savings would be put into a new, independent ADF administrative review board. This board would have more far-reaching powers and complete separation from the chain of command. The government rejected that model for the same reasons it rejected all of the other principled recommendations. Hence, the current model of the Complaint Resolution Agency remains, with the final word exercised by the inspector-general.

The differences here are simple. The committee firmly resolved to remove military justice from the control of the military. The government disagreed, so we are left with an institutional framework with an appalling record. It is quite clear that in the grievance process investigation is poor. It is slow, it lacks thoroughness, it is biased and it lacks impartiality. It is confounded by all of the shortcomings of an in-house Caesar unto Caesar process. Hence the crying need for independence. Institutional change sometimes is an appropriate remedy. More often than not, however, the reasons are poor management and poor internal policies. I suggest that, above all, the problems of this failed system are driven by poor values and an unhealthy culture.

It is to the credit of the Chief of the Defence Force, the CDF, that he recognises the fundamental need to change the culture. Bullying, harassment, bias, sexism and all of the sins identified in the failure of military justice come down to people. They have nothing to do with discipline at all. It is about simple respect, fairness and natural justice, which we all are entitled to expect in the workplace. Processes must be changed, but that is more an administrative matter, not necessarily a legal matter. In this context we also note that the government’s response to the committee report acknowledges that need to a limited extent. I say ‘limited’ because the government’s response to the committee findings is identified as being only ‘in part’ or ‘in principle’. We suggest that this needs more attention.

I will summarise the shortcomings identified in this area by the committee: untrained investigators, inordinate delay, poor quality investigations, poor evidence gathering, failure of procedural fairness, lack of independence, inordinate delay in reviews, lack of independence in the review process, lack of impartiality, failure to act on recommendations, failure to keep complainants informed and, more importantly, to protect them, as well as breaches in confidence and abuse of power. These are all internal administrative matters. They could all be fixed tomorrow.

We therefore note what the government intends to achieve with the appointment of an inspector-general. We certainly hope that it works. But, of course, the proof of the pudding is in the eating, and it will take some years for everyone to come to a final view. The test will be whether complaints on the redress of grievance process, or ROG process, and the failure of boards of inquiry, or BOIs, continue. Unless all the failures I listed a moment ago are removed then I suggest it will be business as usual into the future. Essentially, it is now a matter of leadership, especially from the government. We simply cannot allow the appalling circumstances blighting military justice to continue. It is for that reason that I move the following second reading amendment circulated my name:

At the end of the motion, add “but the Senate:

(a)   condemns the Government for its failure to implement, in full, the recommendations of the Foreign Affairs, Defence and Trade References Committee in its report, Inquiry into the effectiveness of Australia’s military justice system; and

(b)   notes that:

(i)   the measures contained in this bill will not be sufficient to address the issues of bullying, harassment, victimisation, intimidation, bias and failure of natural justice which have been revealed so regularly in the past decade, and

(ii)   unless the Government properly deals with this matter in a determined fashion, the reputation of Australia’s armed forces will continue to be unfairly sullied and remain a deterrent for talented young Australians to join the Australian Defence Force”.

I move that second reading amendment on behalf of the opposition. I will not to speak to it at any great length. It speaks for itself. The remarks that I have made in my speech in this second reading debate indicate the real concerns of the opposition in this area. We note that the report has been delivered. We note that Minister Hill undertook to respond urgently. We note that he has kept his word and taken the matter to cabinet and that the government has responded. We are concerned that the central thrust of that Senate committee report, to take items of military justice and to, in a real way, civilianise them as a method to overcome identified deficiencies that have become rampant over the last 10 years, has been rejected by the government. We note the government’s reasoning on that. We are not persuaded that the government’s reasoning is correct. Nonetheless, these amendments in part, in form and in some matters of substance do go some way to attending to the real complaints identified by the Senate committee.

We also note that the government is putting its own good name and determination to achieve change on the record by having the CDF or his nominee report every six months to the Senate foreign affairs committee on the progress of change and of institutional reform and the process of applied change within the ADF as to those matters. We note that senators on all sides of the chamber who have an interest in this matter will be able to take the opportunity every six months in the foreign affairs committee to satisfy themselves that the government’s intent is being carried out. I will draw my comments to a conclusion and commend the second reading amendment standing in my name.