Marise Payne (NSW, Liberal Party) Share this | Hansard source

I present the second 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.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

The committee has examined the Australian Defence Force’s second status report on the progress of reforms to Australia’s military justice system. Since its last report in August 2006, a number of reforms have been implemented. These include: the establishment of a permanent military court, which represents a significant change in the structure of the ADF’s discipline system and recognises the importance of military judges operating independently of the chain of command and with the security of tenure and remuneration; and a notable increase in the number of staff in the Office of the Director of Military Prosecutions—and we are advised that all legal officers in the office now hold practising certificates. There are also preliminary indications that the redress of grievance process has improved.

The committee has, however, also looked critically at a number of aspects of Australia’s military justice system where the reform process still has some way to go. In particular, the committee considered a number of major reports that have direct relevance to Australia’s military justice system. These are: Report of an audit of the Australian Defence Force investigative capability, July 2006; Final report of the learning culture inquiry: inquiry into the learning culture in ADF schools and training establishments, July 2006; and Report of the board of inquiry into the death of 8229393 Private Jacob Kovco at the SECDET accommodation in the Australian Embassy Compound, Baghdad on 21 April 2006, 27 October 2006.

In relation to the investigative capability within the ADF, the recent audit found that that investigative capability was indeed in serious decline. It stressed that despite being reviewed, reorganised, restructured and downsized over the last 15 years, service police still lacked:

... clear purpose and direction, a senior ‘champion’ or advocate to advance their interests, adequate leadership, and modern policy, doctrine, training and tradecraft.

The findings of the board of inquiry into the death of Private Jacob Kovco further underlined concerns about the capacity of investigating authorities in the ADF. It found shortcomings in ADF processes concerning the handling and preservation of serious incident sites and physical evidence and of the passage of information about the details of serious incidents.

Without doubt, the findings of these two recent reports add significantly to the longstanding and increasingly urgent call for the investigatory competence of the service police to be addressed. The committee believes that the intended and promised reforms must be implemented on this occasion or the operation of the service police will be fatally imperilled.

Although the committee is cautious in accepting that this time real and effective reforms will lift the standard of the SP’s investigative capability to an appropriately high standard, it commends the Chief of the Defence Force, Air Chief Marshal Angus Houston, for making public that audit report which exposed these inadequacies. The committee recommends in this report that the ADF follow up its audit of the ADF’s investigatory capability with another similar, comprehensive and independent review in three years time which would use this recent audit as a benchmark.

In relation to the independence of investigating officers, I raise a number of matters. During our public hearing on 26 February 2007 the committee raised the matter of the independence and impartiality of an investigating officer involved in the inquiry into the death of Trooper Angus Lawrence. Trooper Lawrence died from acute heatstroke while attending a subject one course for corporal. According to evidence given to us at the hearing, the Chief of Army asked the initial investigating officer to inquire a third time into the circumstances leading to the death.

It is the committee’s view that this request goes to the heart of the matter of an investigator’s independence. While the committee’s main concerns centred on the independence of the investigator, it also had serious misgivings about other aspects of the investigations into this death. They relate not only to the independence of an investigator reviewing their own investigation but to the work done by Army in preparing a report for the coroner, Army’s response to the coroner’s findings and the manner in which, after its third review, Army chose to inform the coroner of ‘new evidence’. The committee states quite clearly in this report, and I reiterate this for the chamber, that it intends to pursue this matter further. It will be seeking additional information from Army and will report in greater detail on these matters.

In relation to the Defence Force Discipline Act, the Report of an audit of the Australian Defence Force investigative capability found that the Defence Force Discipline Act, the DFDA, had ‘simply had its day’. It described the document as ‘outdated and anachronistic’ and suggested that it ‘does not match modern disciplinary, legal and policing requirements’. The committee supports the call for a comprehensive review of the DFDA and hopes that the intention is for a very independent, thorough and complete review of the act rather than the making of ad hoc changes to it. The committee suggests that any independent review should be made public.

In our first progress report on these matters the committee commended the ADF on efforts to improve Australia’s military justice system. We were concerned, however, that reforms to processes would not of themselves tackle the deeper problems of an entrenched culture within the ADF that we saw may well have the potential to undermine the success of current reforms. A recently conducted audit into the learning culture of the ADF reinforced this view. The committee notes that, while the audit found that a culture of bullying and harassment did not exist in the respective training establishments, there are ‘isolated incidents from differing individuals that highlight inappropriate behaviour by individuals’. These examples which describe a culture that ‘seems to be so judgemental and disrespectful’ toward those deemed to be, in the terminology of the ADF on occasion, ‘on the wrong bus’ is of continuing concern to the committee.

It is now over three years since the 2003 report into the death of Jeremy Williams, and after much publicity there are still worrying elements detected in ADF training schools. The findings of that inquiry into the learning culture in the ADF underscored the need for the ADF to continue and strengthen its endeavours to change its culture. The committee on this occasion commends the ADF and, in particular, the CDF for commissioning the recent audit and for making public its findings. It also notes the firmness and the resolve of the CDF in asserting that the military justice system will be improved:

Let me assure you, this is the most comprehensive implementation we have ever had of the military justice system in the ADF. The chiefs and I get a report every month from Admiral Bonser on how the implementation is going. We are leaving no stone unturned. We are totally committed to fixing the system.

The committee encourages the CDF to continue the practice of independent review of key aspects of the ADF. The committee also notes the chapter in Defence’s annual report devoted to the military justice system that includes information such as the Defence attitude survey. Again, the committee encourages Defence to continue this type of open reporting. It is very valuable both to us and the Australian community that they are able to see those reports made public.

I want to place on record the committee’s appreciation for the time and effort of the CDF, the chiefs of service and Admiral Bonser and the Military Justice Implementation Team in relation to these matters. It assists the committee enormously, when we hold a public hearing, that the CDF and his most senior officers make themselves available to answer the committee’s questions on these very important issues. This matter has been proceeding since late 2005, when the committee tabled its first report, and the ongoing assistance of the Chief and Admiral Bonser in particular is much appreciated.

I also want to place on record the committee’s appreciation for the hard work of Senator David Johnston, my predecessor as Chair of the Senate Standing Committee on Foreign Affairs, Defence and Trade. With his recent promotion, Senator Johnston felt that he was able to leave the committee! In succeeding him in this role, I note that he has dealt with the very difficult issue of military justice in a highly professional and very sensitive way. For the participants in the committee process, for the members of the ADF who come before us to assist us with our inquiries, for the members of the ADF who work under the military justice system and their families, some of whom are still looking for answers to questions that would challenge the strongest amongst us, it is very important that these matters be handled appropriately—and I commend Senator Johnston for his efforts in that regard. I commend the report to the Senate.

Question agreed to.