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Wednesday, 24 September 2008
Page: 5543

Senator MARK BISHOP (5:22 PM) —I present the fourth progress report of the Foreign Affairs, Defence and Trade Committee on reforms to Australia’s military justice system, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

Senator MARK BISHOP —I move:

That the Senate take note of the report.

In June 2005 the Foreign Affairs, Defence and Trade References Committee tabled a quite comprehensive report on Australia’s military justice system. In essence it found that the system needed a radical overhaul. Since then the Australian Defence Force has embarked on an intensive reform program to improve the system including the establishment of the Australian Military Court and restructuring its complaints handling system.

The Senate committee recognises the positive contribution that the reforms have made to the system. Its primary concern, however, is ensuring that the reform program maintains its momentum and that the gains made to date are not lost. The committee is aware, however, of Defence’s failed history of reforms and of its inability to make lasting change. Indeed, it was that history that forced the committee back in 2005 to call a stop and to seek major reform at all levels.

To help break this cycle of failed reforms the committee believes that there needs to be a set of inbuilt safeguards. It needs to have safeguards around four pillars. It believes that transparency, accountability, proper independence and continuing scrutiny are the four pillars that will preserve and promote the integrity of Australia’s military justice system. If any one of those four pillars should falter, the effectiveness of the system once again comes under threat.

With this in mind, the committee has made a number of findings. The Australian Military Court needs to be more transparent and its disclosure regime improved. The Chief Military Judge of the Australian Military Court has a vital role and responsibility to contribute to the parliament’s understanding of the administration of military justice by agreeing, when invited, to give evidence before the committee. Without doubt the administrative system needs a strong independent and critical oversight authority, an authority responsible for identifying problems in the military justice system and for auditing and reporting on matters such as the progress of complaints and the implementation of recommendations arising from investigations. Although the Inspector-General Australian Defence Force is a statutory appointment, the committee believes that his position needs to be, and needs to be perceived to be, more independent from command. A first step would be to change the reporting requirements of the Inspector-General. Commissions of inquiry are presided over by a civilian with judicial experience, which has to some degree removed the perception of Defence inquiring into itself, but only to a limited degree. They could, however, be more open and accountable for their proceedings and decisions by conducting their hearings in public.

Defence’s failure to consult with external and independent experts when considering reforms to Australia’s military justice system is most concerning and continues to be of concern. This attitude indicates that Defence is not only reluctant to be open and receptive to constructive criticism and new ideas but does not appreciate that wide consultation and open debate present and result in better legislation. The ADF’s inability to make lasting change is clearly demonstrated by the problems that persist with the ADF’s police service and learning culture. The process of building the ADF’s investigative capability and improving its learning culture must be regularly monitored and assessed. In this regard, the committee recommends independent reviews of the ADF’s investigative capability and its learning culture within five years.

There also needs to be more analysis and informative reporting on attitudes in the Australian Defence Force. The committee also accepts that over time refinements or adjustments may be required to the reforms implemented during the last two years. It cited for particular consideration: the conduct and protection of military jurors, an audit of ADF legal service and the appeals processes to service chiefs.

There is a need for regular monitoring, review, independent assessment and reporting of all aspects of Australia’s military justice system, including staffing and resources. In this regard the committee notes: the delays establishing the facilities necessary for the efficient and effective operation of the Australian Military Court; current problems staffing the ADF Investigative Service, which need urgent attention—it is only manned at around 60 per cent strength; slowness in appointing officers to the Office of the Director of Military Prosecutions and commissions of inquiry; and the suggestion that Defence resources ‘are very stretched’ and the need to ensure that the Fairness and Resolution Branch has the appropriate level of staffing. This will prevent a return to the pre-2005 administrative system, which was plagued by lengthy delays in processing complaints and redress of grievance matters.

The committee welcomes the appointment of Sir Laurence Street and Air Marshal Les Fisher (Retired) to assess the effectiveness of the reform program. In the course of the report, the committee has identified a range of matters—many technical and some legal—that that review team may wish to examine as part of their inquiry.

In summary, the committee wishes to stress that over the last three or more years there has indeed been a serious attempt by the Australian Defence Force to reform their internal processes, systems and, hence, outcomes in the area of military justice. That reform process was long overdue. It was commenced under the previous government and continues under the current government. However we are cognisant of the fact that there appears to be a slowing down in the reform process and that the reform process now needs to switch over to another gear. That is why we suggest that the matters that should guide the continuing reform process in the forthcoming year are those around those four pillars of transparency, accountability, independence and scrutiny. If each of those matters is attended to through each of the arms that dispense military justice to our Defence Force then the saga of military justice reform will have concluded and we will have a premier military justice service for our Defence Force throughout the world.

Finally, again I wish to extend my thanks and that of the committee to the very professional staff led by Dr Kathleen Dermody of the Senate Standing Committee on Foreign Affairs, Defence and Trade. I seek leave to continue my remarks later.

Leave granted; debate adjourned.