David Johnston (WA, Liberal Party) Share 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.