David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

I present the first progress report of the Foreign Affairs, Defence and Trade Legislation 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.

I move:

That the Senate take note of the report.

In supporting the motion, I will say a few things about the current state of military justice, about the response to the 40 recommendations contained in the committee’s report of June 2005, entitled The effectiveness of Australia’s military justice system, and about the committee’s receipt of a review of evidence from departmental officers on the progress of the government’s response to those recommendations. Our report today is entitled Reforms to Australia’s military justice system: first progress report. Every six months the committee intends to have, in the nature of a public hearing, an inquiry or review into the progress of the government’s response to the 2005 report.

The broad aspects of the June 2005 report included the general administration of justice inside the Australian Defence Force, including prosecutions; investigations, particularly by military police; service discipline; whistleblower programs; legal service quality and capability; redress of grievance procedures; conflicts of interest; and procedural fairness, to name just a small part of what the committee came to call military justice in its extensive review of the system.

The government response has been earnest and comprehensive. The Chief of the Defence Force has written to me, as chair of the committee, and disclosed a strong will to address the matters that the committee put on the table back in June 2005. I believe that neither the Chief of the Defence Force nor his chain of command will tolerate the material that gave rise to the term of reference which brought forward the report in June 2005. Nothing that I have seen through the committee’s close surveillance of the ADF indicates that there is anything other than a strong will on the part of the chief and his chain of command to attack and address these issues. However, I must say that time will tell. The Chief of the Defence Force is motivated and, I believe, determined, and I want to take a moment to thank him for his response. It is not easy for senior military officers to take the advice of parliament in some of these areas, and the reforms that we proposed were extensive, sweeping and quite large for the Defence Force to accommodate. So it is a work in progress.

I was very pleased with the quality of the witnesses before the committee: Rear Admiral Marcus Bonser, the head of the Military Justice Implementation Team; Mr Ronald Brent, Deputy Commonwealth Ombudsman; Mr Mark Cunliffe, head of Defence Legal; Mr Geoff Earley, Inspector-General of the Australian Defence Force; Lieutenant Colonel James Gaynor, Acting Director of Military Prosecutions; Ms Diane Harris, Acting Director-General of Fairness and Resolution Branch; Air Commodore Simon Harvey, Director-General, ADF Legal Services; and Professor John McMillan, Commonwealth Ombudsman and Defence Force Ombudsman. These people took the time over some three or more hours to come before the committee and account for what they have been doing to address the issues contained in the 2005 report. I took some comfort in the earnestness, energy and determination of those witnesses. But, as I say, it is a work in progress. The six-monthly reviews must, in my respectful opinion, continue. The committee cannot afford to take a backward step in maintaining close surveillance of the performance of the ADF in these areas.

We have seen a triservice police investigative capability audit, which is a very important address of an on-the-ground investigative capacity inside the ADF. I look forward to receiving that audit report. We have seen a permanent military court established and redress of grievance process restructuring for the Fairness and Resolution Branch—a very positive step. The Inspector-General of the ADF was very positive indeed. I must say his movement to focus groups with soldiers, sailors and airmen seems to be an extremely impressive and effective mechanism and must be pursued and maintained.

One final area I want to touch on in the broad area that comes under the umbrella of military justice is cadets. I believe that there is a new will to address the administration and management of under-18-year-old members of the ADF, namely cadets. I think the indications are that the movement is in the right direction and that the right mindsets are being applied to dealing with those problems. The committee in this matter is as one; it is very determined, and I hope people reading these words and the words of other senators on this subject are left in absolutely no doubt that the committee is very determined to maintain a very strong process of surveillance. It intends to drive the reforms that are evident on the surface in the Australian Defence Force with respect to military justice. The committee is as one and is determined, and I trust that the departmental officials that I have named are—and they appear to be—as determined as the committee to do the right thing here.

So that the bodies and agencies will continue, in my respectful submission, to come under close scrutiny by the management and administration of the Director of Military Prosecutions, we will consult widely and deliberately with the Inspector-General of the ADF. The military police agency will be under great scrutiny, particularly the development and reform of their investigative capability. The offices of the Chief Judge Advocate and the Registrar of Military Justice are vital and important to the administration of military justice in the ADF, as are the head of trial counsel and the alternate dispute resolution agency and that agency’s administration.

We had a public hearing on 19 June. There will be many more such public hearings. The committee is very determined. I want to thank Admiral Bonser for the way in which he came to the committee, gave his evidence and administered the witnesses, and the way in which we were given the necessary information and advice on the progress of this very important subject.

On the general findings, I was pleased with the nature of the response and with the initiatives and reforms put in place in response to the 2005 report. The caveat that I would put on the table is that these are simply signposts. I do not believe the end destination has been achieved; we have not arrived at that but are still on the way. No relaxation or comfort can be taken from the reforms until a period of time has expired such that precedent determines that there has been real reform in the ADF. As I say, I am happy with the direction and I think the committee is broadly happy with the direction; but we are as one in saying that determination and surveillance must be maintained, and I believe that the committee will be maintaining strong surveillance of the ADF on these issues.

I want to thank the committee secretariat for the ongoing work they do on some of these issues. I am talking about sudden deaths and a whole host of very grief-stricken aspects of life in the ADF. The objective of the Australian Defence Force is to fight and win. With 55,000 service personnel there are going to be issues. We have the obligation to see that those issues are resolved as fairly, properly and justiciably as possible. It is a work in progress.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It gives me great pleasure to follow the Chair of the Foreign Affairs, Defence and Trade Legislation Committee inquiry into reforms to Australia’s military justice system, Senator Johnston, because, during the progress of not only this inquiry but our original inquiry into military justice, the likes of Senator Johnston, Senator Payne, Senator Sandy Macdonald and my colleagues Senator Hogg and Senator Bishop were of invaluable assistance in some of the difficult areas and aspects of the military that we had to deal with. Senator Johnston outlined that this is the first progress report of the surveillance or oversight of the implementation of those aspects of the military justice report that the government agreed to implement. It was with pleasure that the government agreed to our recommendation to have surveillance or oversight ability into that implementation. You may recall that the inquiry implemented by the Foreign Affairs, Defence and Trade References Committee was the sixth inquiry into military justice in 10 years. Clearly, from the evidence that we were given during the conduct of that inquiry, there had been very little procedural or cultural change within the military in Australia. That is why it was with pleasure that the government accepted the ability of the legislation committee chaired by Senator Johnston to operate in that surveillance role.

My colleague Senator Bishop, who may be making a contribution later in this debate, has highlighted on the last few occasions he has spoken that he is not overly convinced that there is this change in the military. Indeed, our initial report concentrated on procedural change. We are clearly not in a position to implement cultural change within the Australian military; that is something that can only come from the top down. Looking at a number of outstanding cases from that 10-year period does not lead us to the conclusion that that cultural change in the military has taken place. There is the case of Air Vice Marshal Criss and what look like the terrible things that were done to him. He was a senior officer and a man who was held in high esteem by his Air Force men, so much so that when he left the air base—I live near RAAF Base Glenbrook—all the air men and air women, if they are the terms for RAAF personnel, lined the streets around the exit to the air base to farewell him. That is the esteem in which he was held.

We are still receiving inquiries from the families of deceased personnel who are still in conference with the Commonwealth about compensation. We are still receiving inquiries from families about aspects of their children’s service lives and what they see as being the denial of military justice. I am glad that Senator Johnston mentioned the fine work of the secretariat of this committee, headed by Dr Kathleen Dermody. To a large degree, we senators have been protected from some of the terrible, I suppose, documentation that has been presented to Dr Dermody and her staff over the two inquiries. They are the ones who are receiving the phone calls from distressed parents because their children are still in difficult situations or have died either naturally or by suicide. Sometimes, during the conduct of the previous Senate inquiry, they received these inquiries almost daily from parents, men and women who have a grievance against the Australian military. Senator Bishop highlighted the other day the case of Lieutenant Commander Robyn Fahy and the difficulties that have been experienced by the family of Air Force cadet Eleanor Tibble.

So we are not necessarily convinced that this cultural change is under way within the military. Why would you be at all convinced that it is occurring if the newspaper reports are correct about the conduct of the Kovco inquiry? It seems that even now, after all the publicity, the fanfare and the determination by government and senior staff of the military to make sure that there is procedural and cultural change for justice in the military, what is being exposed in the Kovco inquest does not lead you to any conclusion other than that this is some sort of paper shuffle by the military.

Senator Hogg was going to speak in this debate, and I might echo some of Senator Hogg’s views. Senator Hogg is quite sceptical of the military and how they treat the parliament and Senate inquiries. At best, Senator Hogg—and Senator Hogg can come in here later and say whether I am right or wrong—believes that the military are dismissive of us and, at worst, that they have utter contempt for us. I wait to see the outcome of the Kovco case and whether we will be proven correct in some of our observations of the lack of cultural change.

Currently before the CDF is a report from Andrew Podger into the ethos and training of ADF establishments. We did request of the minister that we receive a briefing on this report but, as it is still with the commander, we were advised that it is not available at this stage. I hope there is nothing damning in that report of military establishments such as Singleton or other training establishments, but, to use what I think is a Sydney expression, I would put London to a brick on it that there is a difficulty that will be explained in that report about what is still going on in these defence establishments.

In conclusion, I suppose it is ironic that at the moment we have a number of young men and women in uniform in all parts of the world defending basic human rights. The irony is that it still appears that those basic human rights that we ask them to defend elsewhere are denied them in our own establishments.

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

I rise to participate in this debate on the tabling of the first progress report on reforms to Australia’s military justice system by the Senate Foreign Affairs, Defence and Trade Legislation Committee. As other speakers have commented, this is an update on the committee’s substantive report tabled in June last year. It also provides me with an opportunity to acknowledge and thank my colleagues on both sides of the chamber for the comments they made at that time in relation to my involvement in the report. Many colleagues will know that it was a difficult time for me personally in my family. I was unable to be here when the report was tabled, and my colleagues were very supportive. I am very grateful for that.

The government’s response to the committee’s initial report last year was a very serious and thoughtful one made by the then minister, Robert Hill, and the ADF. One of the undertakings in that response was for the provision of six-monthly reports on progress of the implementation of reforms to the military justice system, and this is the first of these. We have a focused and specific Military Justice Implementation Team under the leadership of Rear Admiral Mark Bonser. I think all members of the committee would agree that that is a very effective way for the committee to communicate with the ADF on these issues and has provided the committee with a point of focus that is very useful.

The committee has been provided with a formal written update on progress of implementation of the recommendations. It is quite a comprehensive document which is found in the report at appendix 4. I, for one, have found that very helpful in determining exactly where we are in the process in this regard.

There are several key matters to note that the committee has raised in this first progress report. The first of those is in relation to the triservice police investigative capability audit, which all of us regard as an absolutely critical exercise that is crucial to the effective investigative capacity within the military, and it is one that we hope is taken very seriously. We look forward to the completion of that audit and to seeing the response to it from Defence.

We are also looking forward to the establishment of the permanent military court and are hoping to see legislation on that in a reasonably short space of time. The ROG—redress of grievance—process has been restructured into a single branch known now as the Fairness and Resolution Branch. That seems, from the evidence that the committee was given from the acting head of that branch and other witnesses present on that occasion, to be having a positive and beneficial effect on the way in which these matters are handled. Hopefully, it is a simpler and clearer process for those people who feel the need to take up an ROG. I do not think it is something that the overwhelming number of members of the ADF do on a whim; it is something that they contemplate very seriously. So if this consolidation of aspects of that process in the Fairness and Resolution Branch can assist with making that a simple, clear, effective, taint-free process then that is a very important aspect of this.

The Inspector-General of the ADF, Mr Earley, has been referred to by other speakers. I thought the inspector-general’s evidence before the committee was very useful and provided us with some insights into how he sees his job growing in many ways. Certainly, the size of his department is growing significantly. One point that I would make—I think other members would agree but that is, of course, for them to say—is that the committee still encourages the IGADF and the ADF—therefore the government—to contemplate giving the IGADF the opportunity to make his own report; not just a report to the CDF but hopefully a report that comes before this parliament in terms of the work of his office. We would regard that as an important step towards the independence and capacity of the IGADF to work outside the chain of command and to report separately. That is noted as well in our report.

A number of other key appointments have been made since the committee reported. We have had the appointment of Lieutenant Colonel Lyn McDade to the position of Director of Military Prosecutions, and that of Lieutenant Colonel Geoff Cameron CSC to the position of Registrar of Military Justice. They are both timely and welcome appointments. We also note in the report that we commend Defence on the progress they have made but acknowledge that the road to cultural change in the organisation is a very long one. (Time expired)

Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Link to this | Hansard source

I also rise to make a few comments on this first progress report on reforms to Australia’s military justice system that has been tabled by the Senate Foreign Affairs, Defence and Trade Legislation Committee. I commence my remarks where Senator Payne ended hers, and compliment her on making her usual sound response.

The background to this has been well documented in the initial Senate committee report on this matter. Basically, that earlier report into military justice found that Australia’s military justice system had a culture of bias, delay, breaches of privacy, poor investigations, failure of process, lack of communication and a lack of genuine, independent review. A lot of that was put down to the then prevailing culture within the armed forces.

The government in its wisdom considered that unanimous report from the various senators on the committee and came down in a very short time with a very detailed response, given by the then Minister for Defence, former Senator Hill. Senator Payne described the government’s response as a serious and thoughtful one. I am not so sure that I would go that far, but I would not be prepared particularly to demur from her description, because it was a significant response. I recall thinking at the time that obviously there had been some intense negotiations between the government and the defence forces, and I came to the view, in terms of the government’s then response, that it had gone as far as it thought it was possible to go without causing major and perhaps unwarranted angst.

Nonetheless, when the ALP responded in due course after considering the government’s response, it gave a lukewarm response because the government had avoided or chosen not to accept the major thrust of the Senate report to civilianise military justice. We indicated a concern then and we have not backtracked from that position. Nonetheless, the government’s response did address major institutional reform. It addressed process within the military. It did create extra positions and provide extra funding and it did undertake to provide better and more detailed training on a range of fronts going over the two years that were to come after October or November last year.

I have been publicly critical of the Defence Force and to some extent critical of the lack of change within the military on this issue. That remains the formal position of my party, and we are not yet minded to depart from that. It concerns us that we are not able to give more than lukewarm support and encouragement at this stage. It was clear from the written evidence and some of the comments made by senior persons to the committee in its public hearings that they thought they had undergone major change and that there was major reform in process, and I think they would be very disappointed at the findings of this bipartisan committee today. At best, this is a lukewarm response, but in reality it is a fairly significant reminder that there is an enormous amount of work to be done.

I say that because it is my current view that there are still major problems on the horizon and that there is not yet an acceptance of the need for cultural change or reform at all levels within the military. There have been two high-profile cases settled in recent times, and we acknowledge that and that the parties were satisfied with the outcome. However, there remain a large number of unresolved low-profile cases. The committee is still receiving significant amounts of correspondence on new cases and, apart from those cases that seem to warrant extensive media interest and high-profile and embarrassing moments in public hearings, it is not yet possible, in my view, to conclude that there is reform and closure of other cases, which would be necessary for cultural change to occur within the armed forces. High-profile cases are settled, and that is welcome. Low-profile cases are still of great concern to the partners and mothers and fathers of those people who have been assaulted, who may have died or who have been penalised in the progress of their career. Just because they are not on the front page of the paper or on the ABC news does not mean they are not important. They warrant ongoing and immediate review. I seek leave to continue my remarks later. (Time expired)

Leave granted; debate adjourned.