Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

Pursuant to order and at the request of the chairs of the respective legislation committees, I present reports on the examination of annual reports tabled by 30 April 2006.

Ordered that the reports be printed.

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

by leave—I move:

That the Senate take note of the reports.

In support of this motion, I want to make what I think are some important remarks. Annual reports place on the public record a great deal of information about government departments and agencies and they are an important element of accountability to parliament. The information provided in annual reports is intended to assist parliament in the effective examination of the performance of departments and agencies and the administration of government programs. They are a key reference document and a document for internal management. It is unusual for a senator to speak to a report on annual reports, but I want to underline their important function and how they can be neglected as an important accountability measure. I also want to spotlight the work being done by the Judge Advocate General.

It is of vital importance to have effective machinery that allows independent statutory bodies to alert the minister, the parliament and the public to their concerns. The requirement for the Judge Advocate General to prepare for, and provide to, the Minister for Defence a report relating to the operation of the Defence Force Discipline Act strengthens the JAG’s independence and enables his office to perform its oversight role more effectively. The JAG is able to draw to the minister’s attention and alert the parliament to problems with the operation of the Defence Force Discipline Act and make recommendations to rectify shortcomings. This report demonstrates the importance of this function and the effectiveness of the JAG’s report. The JAG said in his report:

In raising matters in the annual reports, successive JAGs have endeavoured to flag for parliament and the Service Chiefs important issues that need to be addressed ... it will be necessarily apparent that practically all of the suggestions and recommendations made over the years have subsequently been introduced. Regrettably, however, it has often taken subsequent intervention, such as the recent inquiry into the Effectiveness of Australia’s Military Justice System, for that to occur. By the time of this intervention, several years will inevitably have passed and what was originally a matter of keeping the legislation up to date with developments in the law within Australia and overseas becomes, instead, an issue of serious concern.

The JAG noted that there is no formal mechanism for matters raised in the annual report to be formally considered and responded to. In his view, this arrangement is a ‘serious deficiency which defeats the self-regulating purpose of the JAG’s report’. He referred to his previous report, the 2004 report, in which he expressed concern that his report—and the purpose of his report: providing parliament with an independent report relating to the operation of the Defence Force Discipline Act—was not fully appreciated.

One of the reasons I decided to speak to the Senate about the JAG’s report is to highlight the JAG’s view on the lack of attention given to his report and how a valuable accountability measure can be overlooked. His observation applies not only to his report but also to the many annual reports presented to the parliament by key statutory bodies that have this important oversight function. In his report the JAG said:

... if used properly, the JAG’s annual report is an important part of the self-regulating machinery designed to keep the Defence Force Discipline Act, and the discipline system as a whole, current.

The Senate Foreign Affairs, Defence and Trade Committee noted the JAG’s observations that, under his reporting regime, there is no mechanism for the government or the ADF to respond to recommendations in his report. This is clearly an area that warrants serious consideration for reform. The committee is aware that the Australian Defence Force is undergoing a period of reform, including the establishment of a permanent military court and associated changes. It is important to ensure that the oversight and reporting role now filled by the JAG continues after the establishment of the Australian Military Court. Indeed, the JAG stressed the importance of a report such as his in ‘maintaining the jurisprudential currency of the military justice system’. He noted:

If the report is to be discontinued, it is important that some other mechanism be put in its stead.

The committee strongly supports the JAG in his view. The JAG raised a number of other significant matters with respect to the independent oversight of the operation of the Defence Force Discipline Act and related legislation, particularly in light of the proposed permanent military court, which includes factors that underline the security of tenure of judicial officers, renewable fixed terms and the conditions for termination of appointment. The committee believes that these matters warrant the closest attention and should be a key consideration when decisions are finally taken on the creation of the court. The JAG also referred to delays in bringing matters to trial. Again, the committee has taken notice of the JAG’s comments and will monitor progress in this area vigorously.

The legislation to establish the court has not yet been introduced into the parliament. Nonetheless, the committee notes the JAG’s concerns and will pursue them as part of its role in scrutinising the implementation of reforms to Australia’s military justice system. Furthermore, the committee believes that the views and recommendations of the JAG contained in this and previous reports should be a central consideration for those in the ADF and the government who are involved in implementing reforms to Australia’s military justice system.

The committee considers that the JAG’s statutory independence provides an effective mechanism for making the types of observations and recommendations contained in this report. The statutory position of the JAG’s office—outside the military chain of command—provides the greatest possible guarantee of impartiality and independence. This report is an example of how independence and impartiality can improve the overall function and accountability of the military justice system. The committee welcomes and endorses the JAG’s active stance in suggesting improvements to the military justice system and it also welcomes the JAG’s initiative of providing public information regarding the operation of particular aspects of the military justice system.

It is crucial that, under the reforms now taking place, the oversight and reporting function now filled by the JAG continues into the future. The committee has on previous occasions advocated that the Inspector-General of the Australian Defence Force have the same reporting regime as the JAG. Indeed, the JAG’s report provides an ideal model and underscores the many benefits that would result from a separate annual report by the Inspector-General of the Australian Defence Force to the minister. It would allow the same objective and frank assessment of the health of Australia’s military justice system, as shown in the JAG’s report on the discipline system. It would allow the necessary oversight free from the influences of the ADF, provide vital feedback to the Australian Defence Force on the strengths and weakness of the military justice system and inform the parliament about the effectiveness of the system as a whole.

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

I too want to take note of the committee reports on the examination of annual reports tabled by 30 April 2006. In particular, I want to comment on the annual report of the Judge Advocate General. It is probably unsurprising that, once again, there is clear evidence of government inertia with respect to the ongoing reform of military justice within the Australian Defence Force. This was initially highlighted some two or three weeks ago when there was a six-monthly review by the relevant Senate committee into military justice changes. Now this report of the Judge Advocate General draws quite similar conclusions. Together they show us and interested observers that true reform is still a long way down the pike. The government has been making some note of a significant number of reforms fast-tracking change within the military justice system, but both the Senate committee report and this report of the Judge Advocate General show that some of that fast-tracking is illusory at best. The JAG report and the previous Senate committee report of a fortnight ago identify significant cultural and procedural issues that continue to undermine the success of institutional reform. They show how the government needs to implement institutional change and so give effect to public comments by the government, by the Minister for Defence and by the Chief of the Defence Force.

Who is the Judge Advocate General? He is a High Court judge or a Supreme Court judge, serving or retired, whose office provides civilian judicial oversight of Defence Force discipline and plays a role in the legal welfare of the Australian defence forces. It is a very important position with significant responsibilities. As such it has the capacity to play a pivotal role in the implementation of changes to military justice which remain an ongoing sore point. The military justice inquiry last year found systemic flaws and abuses within the system. In its report it made a number of recommendations to improve the system, such as setting up a permanent military court and appointing a director of military prosecutions. The government response to that military justice inquiry report accepted a number of recommendations. But the government response, tabled at the time by Senator Hill, baulked at implementing other major reforms such as agreeing to civilian authorities investigating alleged criminal activity within the armed forces. Hence these issues continue to plague the system.

To help overcome this, and to perhaps encourage ongoing reform, the Foreign Affairs, Defence and Trade Legislation Committee was asked to do a series of six-monthly reviews to assist the government to keep on track in terms of its commitment to and implementation of reforms within military justice. The first review in June of this year identified a number of major shortcomings in the government’s implementation of reform. It found that reform was inordinately slow; that there was a prevailing culture within the Australian defence forces that could undermine the success of current reforms; and that there was a significant number of new and ongoing correspondents making continuing complaints to the committee. It is time to give the same committee the ability to review the annual report of the Judge Advocate General because both provide damning evidence that the government’s commitment to reforming military justice shows perhaps a lack of substance.

Some of the main concerns flagged by the Judge Advocate General and considered by the Senate committee go to the independence of the JAG office. The JAG says this is compromised by being bankrolled by Defence legal. The government initially agreed the office would be removed from Defence legal and devolved to a more appropriate place—that is, the office of the Vice Chief of the Defence Force. That has not happened yet despite commitments in writing. I suggest that is further evidence of government inertia in terms of implementing reform. The JAG went on to say that the government continues to be slow to act on recommendations made in the JAG’s annual reports. That was an ongoing problem. The Senate committee has backed up the JAG’s concerns that there remains no formal mechanisms for matters raised in the annual report to be responded to. The Judge Advocate General publishes a report, it is tabled in the parliament, it identifies a range of problems or issues that need resolution but there is no formal mechanism—or no requirement in legislation or regulations—for government to respond to those recommendations of the JAG. That is an ongoing problem. As the Judge Advocate General says, that system, which by design fails to result in change, defeats the very purpose of the Judge Advocate General making reports—which is that they are supposedly self-regulating.

Finally, whilst he welcomed the creation of the DMP—the Director of Military Prosecutions—the Judge Advocate General made the very pertinent point, which the Senate committee endorses, that he was concerned that the role remained within the chain of command. He said it was preferable for that very important position to be independent with its own budget, thereby avoiding any perception that resources might be limited because of command influence. That is a critical point. If you are going to have judicial oversight, it needs to be separate, it needs to be funded properly and it needs to be independent in its operations. If the serving responsible officers in charge of that operation are part of the chain of command then by definition they have conflicting responsibilities—firstly, to themselves, their career and the armed forces; and, secondly, to the obligations imposed upon them. I am not so sure that the current system provides a suitable way for those conflicting responsibilities to be resolved.

The Senate committee in considering that also backed up the JAG’s concern about the independence of the proposed Australian Military Court. It made reference to safeguards to ensure that the military court’s independence included security of tenure and independence of salary of serving judges. Again, the government has failed to assure this important forum. So whilst it makes a lot of noise about implementing reform and it makes the appropriate statements in public, when it comes to the issue of introducing legislative change to achieve that reform—and a fundamental way of doing so is to ensure that the senior officers who have judicial oversight are truly independent and not part of the chain of command—the government baulks. Finally, in that context the JAG made the obvious comments that there is a lack of wisdom about appointing judicial officers to boards of inquiry. These boards of inquiry do not have judicial power and by definition are constrained in their terms of reference.

Appointing a judicial officer to these administrative inquiries undermines the legal integrity of that officer. Indeed the committee considered that and supports the recommendations and findings of the Judge Advocate General in that respect. It heeds its warning about a lack of independence of the Australian Military Court, security of tenure for judicial officers and no real measure by which the government is able to respond to the JAG’s recommendations, even if it is so inclined. The JAG and the Senate committee further call on the government to strengthen the independence of the Inspector-General of the Australian Defence Force. This could also be done by ensuring the Inspector-General of the Australian Defence Force has the capacity to make an independent report, as is the case with the Judge Advocate General.

That would be in part a measure of just how committed the government is to true reform of the military justice system, but I must say, in conclusion, that evidence is that progress of reform, if any, is at best slow. A lot of the legislative response that has been put on the table, when one examines the detail, shows perhaps the opposite is occurring when the relevant senior officers do not have separate tenure, are part of the chain of command, do not have their own budget, do not have their own reporting capacity and, when they do make reports in their annual reports, the government of the day is not obligated in any way to respond.

So the government needs to pay more attention to ongoing reform of military justice within the Australian defence forces. It is fair to comment that a lot of the spin that has been coming out of late does not serve any real purpose. It gives the appearance of acting but in fact covers up or hides. We suggest—and the Senate committee is of the view—that the government must act on the JAG’s recommendations contained in his report to ensure that there is true cultural and—

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Bishop, your time has expired, but you may seek leave to continue your remarks.

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

I seek leave to continue my remarks at a later time.

Leave granted; debate adjourned.