There have been multiple reviews and inquiries in the last twenty years that have examined aspects of the military justice system and issues related to sexual harassment and offending in the Australian Defence Force (ADF). Senior officials at the Department of Defence have noted that “these inquiries illustrate a long history of issues that have continuously plagued Defence in terms of its culture, the military justice system, and complaint handling and inquiry processes.” In addition, various court cases have examined jurisdictional questions relating to the military justice system.
One of the most significant reports arose from an inquiry by the Senate Committee on Foreign Affairs, Defence and Trade into the effectiveness of the military justice system (Senate Report), which was completed in 2005 and led to the passage of major reforms to remove proceedings for serious offenses from the ADF chain of command. As a result of a successful constitutional challenge in the High Court, however, the Military Court that commenced operations in 2007 was disbanded in 2009 and the previous military justice system reinstated. The role of the independent Director of Military Prosecutions (DMP), which was first created in 2003, remains a key part of this system. Proposals to re-establish a separate military court are currently before the federal Parliament.
More recent reviews are also referred to later in this report, including those that have taken place in the last two years following allegations of sexual misconduct by ADF Academy cadets in early 2011. The policies regarding the management and reporting of sexual offenses were revised later that year. The relevant instructions issued by the Chief of the Defence Force provide information on jurisdictional considerations and responsibilities relating to sexual offense complaints, including the role of the DMP and the ADF investigative service in determining whether to refer a complaint to civilian authorities.
II. Overview of the Current Military Justice System
The military justice system currently operating in Australia is primarily governed by the Defence Force Discipline Act 1982 (Cth) (DFDA) and its subordinate rules and regulations. The DFDA provides for “the investigation of disciplinary offences, types of offences, available punishments, the creation of Service tribunals, trial procedures before those Service tribunals, and rights of review and appeal.” It regulates the conduct of all ADF personnel at all times and in all places, both in peacetime and in war.
The DFDA is complemented by the Discipline Law Manual, which provides guidance to ADF members on the law. Several Defence Instructions, which detail various ADF procedures and policies, are also relevant to the operation of the military justice system, including in the context of resolving potential jurisdictional conflicts with the civilian justice system.
A. Service Tribunals
The system includes three types of “service tribunals” that can be convened to try ADF members for offenses that come under military jurisdiction:
- Summary authorities,
- Courts-martial, and
- Defence Force magistrates.
Only officers of the ADF may be appointed as summary authorities, with appointments made through the chain of command. Summary authorities are generally used to try less serious offenses and have limited powers of punishment. A summary authority must give an accused person the opportunity to elect to have a charge tried by a court-martial or Defence Force magistrate tribunal.
The DFDA provides for two different types of courts-martial: a general court-martial and a restricted court-martial. The two differ in the rank of the president and the number of other panel members that can be appointed. Court-martial panel members must be military officers, and a legal officer acting as a Judge Advocate must be present throughout the proceedings.
In terms of the third type of service tribunal, the Judge Advocate General (JAG) may appoint officers to be Defence Force magistrates. The magistrates have the same jurisdiction and powers as a restricted court-martial, therefore essentially providing an alternative for dealing with serious offenses.
B. Director of Military Prosecutions
The position of the Director of Military Prosecutions (DMP) was created on an interim basis by a Defence Instruction issued in July 2003. This action followed the completion of an independent inquiry into the military justice system in 2001. In his report, after examining approaches in other countries and considering points in favor and against, the lead investigating officer for the inquiry recommended that an independent DMP position be established. At that time, under the DFDA, “convening authorities” (which were part of the chain of command) made determinations on whether a court-martial or Defence Force magistrate tribunal should be convened in the individual cases referred to them.
Until 2006, when amending legislation came into effect, the Australian DMP acted in an advisory capacity to the convening authorities. The formalization of the role through statute and other aspects relating to the DMP were included in the Senate Report recommendations, although the government had already introduced the relevant legislation by the time the report was completed. As a result of the amendments, the statutorily independent DMP took over the roles of the convening authorities, which were abolished, thus removing prosecution decisions from the chain of command.
Part XIA of the DFDA contains provisions relating to the appointment and functions of the DMP. The functions of the DMP are listed in section 188GA as follows:
- (1) The Director of Military Prosecutions has the following functions:
- (a) to carry on prosecutions for service offences in proceedings before a court martial or a Defence Force magistrate, whether or not instituted by the Director of Military Prosecutions;
- (b) to seek the consent of the Director of Public Prosecutions as required by section 63;
- (c) to make statements or give information to particular persons or to the public relating to the exercise of powers or the performance of duties or functions under this Act;
- (d) to represent the service chiefs in proceedings before the Defence Force Discipline Appeal Tribunal;
- (e) to do anything incidental or conducive to the performance of any of the preceding functions.
- (2) In addition to his or her functions under subsection (1), the Director of Military Prosecutions also has:
- (a) the functions conferred on the Director of Military Prosecutions by or under this Act or any other law of the Commonwealth; and
- (b) such other functions as are prescribed by the regulations.
The ADF website explains the general role of the DMP with regard to the assistance that can be provided to ADF commanders as follows:
The DMP will provide advice on matters of a legal nature that are serious allegations under the DFDA. These matters relate to offences that are unable to be tried at the commanding officer level and includes those offences which carry a potential maximum punishment of more than two years imprisonment. These matters are referred to the DMP by commanders within the various commands and units of the ADF requesting advice on a matter. The DMP also provides advice to commanders on the evidence disclosed in investigations and makes recommendations on the evidence disclosed and possible courses of action commanders may utilise.
In order to be appointed as the DMP, a person must have been enrolled as a legal practitioner for at least five years; be a permanent member of the navy, army, or air force, or be a member of the reserves “who is rendering continuous full-time service”; and hold a rank “not lower than the naval rank of commodore or the rank of brigadier or air commodore.”
C. Interaction with the Civilian Justice System
1. Categories of Offenses
There are currently three categories of offenses under Part III of the DFDA:
- “Military discipline offenses for which there are no civilian counterparts,”
- “Offenses with a close civilian criminal law equivalent,” and
- “Civilian criminal offences imported from the law applicable in the Jervis Bay Territory.”
In terms of the third category of offenses, section 61 of the DFDA makes all ADF members subject to the criminal laws of the Jervis Bay Territory regardless of where the offense occurred. This provision is essentially a legal device that allows for the application of civilian criminal laws both within Australia and when ADF personnel are deployed overseas (i.e., they have extraterritorial application), particularly “in circumstances where an adequate criminal law framework is absent, or the application of host country law is otherwise undesirable.” Such offenses may therefore be tried by ADF service tribunals sitting outside Australia.
2. Referral of Criminal Offenses to Civilian Authorities
Where, in relation to suspected criminal offenses by a member or members of the ADF, there is an overlap between the civilian and military jurisdictions, the Australian High Court has determined that “jurisdiction under the DFDA may only be exercised in Australia during peacetime where proceedings under the DFDA can reasonably be regarded as substantially serving the purpose of maintaining Service discipline.” Otherwise, “criminal offences or illegal conduct is referred to civilian authorities for investigation and prosecution.” If prosecution takes place within the civilian justice system, the accused cannot then be subjected to the DFDA for the same or a similar offense.
Some offenses must be referred to civilian authorities for consideration. Section 63 of the DFDA requires that permission be obtained from the Director of Public Prosecutions (DPP) in order for proceedings relating to certain serious criminal offenses committed within Australia to be instituted within the military justice system. These offenses include treason, murder, manslaughter, bigamy, and sexual assault offenses. The role of the DMP, outlined above, includes consulting the civilian DPP in each instance where one of these offenses is alleged to have occurred. The handling of sexual assault allegations and other sexual offenses is further discussed in part IV below.
Jurisdictional considerations and issues arising from the interaction of the DFDA with the civilian criminal justice system were considered in detail in the Senate Report and more recently as part of a 2011 review of the management of incidents and complaints by the ADF Inspector General. The Inspector General summarized the nature of the service jurisdiction as follows:
The jurisdiction of Service tribunals for offences under the DFDA derives from the defence power in the Constitution of Australia. The High Court has ruled that the DFDA may not impair civilian jurisdiction but may empower Service tribunals to maintain or enforce discipline. Civilian criminal jurisdiction should be exercised when it can conveniently and appropriately be invoked. The jurisdiction of Service tribunals should not be invoked except for the purpose of maintaining and enforcing service discipline.
3. Rejection of Recommendation to Refer All Criminal Offenses to Civilian Authorities
The Senate Report noted that “[t]he control and exercise of discipline, through the military justice system, is an essential element of the chain of command. This has not been challenged during the Inquiry and remains a significant distinguishing feature of military justice.” However, the committee made a series of recommendations that would have the effect of requiring the automatic referral of all suspected criminal activity, both within and outside Australia, to appropriate civilian authorities for investigation and prosecution before civilian courts.
The ADF, in the Government Response to the Senate Report, rejected these recommendations entirely and set out detailed reasons for doing so. The reasons included that “[t]he maintenance of effective discipline is indivisible from the function of command in ensuring the day-to-day preparedness of the ADF for war and the conduct of operations” and “[r]ecourse to the ordinary criminal courts to deal with matters that substantially affect service discipline would be, as a general rule, inadequate to serve the particular disciplinary needs of the Defence Force.”
III. Proposed Military Court System
A. Establishment of the Australian Military Court in 2006
In response to the 2005 Senate Report, the government agreed to establish “a permanent military court to be known as the Australian military court [AMC], to replace the current system of individually convened trials by Courts Martial and Defence Force Magistrates.” The Explanatory Memorandum for the resulting Defence Legislation Amendment Bill 2006 noted that the concerns about the existing system “stemmed from the location of judge advocates and DFMs within the military chain of command and the implications for their (actual and perceived) independence.” The bill was enacted in late 2006 and the AMC commenced operations on October 1, 2007. In addition to the AMC provisions, the bill provided for improvements to the summary authority system, restructured the military offenses in the DFDA into three classes, and stated how these offenses were to be dealt with.
B. High Court Decision and Legislative Response
In August 2009, the High Court upheld a challenge to the validity of the AMC,  finding that the establishment of the AMC in the 2006 Amendment Act went beyond what is authorized by the “defence power” in section 51(vi) of the Constitution, and that it did not comply with provisions in the Constitution relating to the appointment of judges. As a result of this decision, the Parliament enacted the Military Justice (Interim Measures) Act (No. 1) 2009, which essentially reinstated the pre-2007 DFDA by bringing back the courts-martial and Defence Magistrate processes and associated roles. The improvements to the summary authority system were retained, but the new system for classifying offenses was not.
This legislation was intended to be a temporary measure. However, Parliament subsequently passed an extension bill in 2011 and a second extension bill was passed in June 2013. The passage of the most recent bill was necessitated by the fact that a 2012 bill that would re-establish a military court system has not yet been enacted.
C. Current Proposal
The Minister for Defence introduced the Military Court of Australia Bill 2012 in June 2012. It is accompanied by the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012, which would “provide arrangements for transition to the new Military Court and include additional enhancements to the Australian Defence Force military discipline system, not directly associated with the establishment of the Military Court.”
The primary bill would establish the Military Court of Australia (MCA) in accordance with Chapter III of the Constitution and would remove the determination of proceedings for more serious offenses from the chain of command. Less serious service offenses would continue to be heard by summary authorities at the unit level, while the General Division of the MCA would try “certain less serious service offences at the request of an accused and/or upon referral by the Director of Military Prosecutions.” The Appellate and Superior Division of the MCA would try the serious service offenses that are set out in a schedule to the bill, and would also hear appeals from first instance decisions.
The two 2012 bills have now been considered by two Senate committees. While it appears that there is broad cross-party support for the proposals, the fact that the primary bill does not contain a right to trial by jury, even for the most serious offenses, appears to remain under discussion at this time. A second issue relates to the inability, under the bill as currently drafted, for reservists and standby reservists to be appointed as judicial officers of the new court.
IV. Handling of Sexual Offense Complaints
A. Defence Instruction on the Management and Reporting of Sexual Offenses
In November 2011, the Chief of the Defence Force issued a revised Defence Instruction on the handling of sexual offense complaints. This Instruction replaced the previous one on the same topic that had been promulgated in 2004, as well as superseding two other related instructions. It sets out the overarching principles and detailed policies relating to the management of complaints involving different types of sexual offenses, including reporting requirements, determining the correct jurisdiction for offenses, investigating complaints, maintaining confidentiality, and providing support to the parties.
1. Principles Governing the Handling of Sexual Offense Complaints
The overarching principles of the Instruction are stated as follows:
- acommanders and managers are to take reasonable steps to prevent sexual offences and have a responsibility to manage sexual offence complaints, including the appointment of a case manager;
- the disclosure of an alleged sexual offence to a commander or manager by any person or through any other means constitutes a complaint for the purpose of this Instruction;
- reporting of sexual offences to ADFIS [Australian Defence Force Investigative Service] is mandatory, irrespective of the complainant’s wishes;
- appropriate confidentiality must be maintained for the protection of privacy and the limiting of trauma for all involved parties;
- commanders and managers are to initiate crisis intervention and the provision of a long-term support strategy in order to appropriately manage sexual offence complaints;
- people are able to seek advice from counsellors. This does not constitute a complaint unless there are reasons for mandatory reporting to the commander or manager;
- sexual offence complaints are to be investigated by the State/Territory or Defence Investigative Authorities, as appropriate—administrative inquiries are not to be used to investigate sexual offences; and
- reporting of sexual offences to ADFIS as stipulated in DI(G) ADMIN 45–2—The reporting and management of notifiable incidents, and to the Fairness and Resolution (FR) Branch via Form 875–1—Initial Complaint Report—Unacceptable Behaviour or Sexual Offence (see annex C), is mandatory.
2. Determining Jurisdiction for Sexual Offenses
In terms of the process for reporting complaints of sexual offenses and determining whether to refer matters to civilian authorities, the Instruction states that
[a]ll alleged sexual offences involving Australian Public Service (APS) employees [i.e. civilian employees], Australian Defence Force (ADF) members, and/or external service providers which occur in the Defence workplace, or which have any association to the Defence workplace (eg conferences, work related social gatherings etc) must be immediately reported to the Australian Defence Force Investigative Service (ADFIS), who will coordinate and determine the appropriate jurisdiction for the handling of the matter. In those cases where the alleged sexual offences cannot be prosecuted under the Defence Force Discipline Act 1982 (DFDA) the alleged offence must still be reported to ADFIS. Reporting to ADFIS must not be delayed as a consequence of any Unit administrative action such as a Quick Assessment. ADFIS must take into account the range of jurisdictional and operational considerations and, where appropriate, report the alleged offence to civilian police regardless of the wishes of the complainant.
Where ADFIS determines that the ADF has jurisdiction in relation to a sexual offense complaint involving ADF members, the Instruction states that the relevant manager or commander “should seek legal advice” from the DMP. Certain offenses listed in Annex A to the Instruction that have a maximum punishment of more than two years of imprisonment must be referred to the DMP for legal advice.
Where ADFIS finds that the ADF does not have jurisdiction, it will refer the matter to the relevant state or territory prosecution authorities, which will determine whether to initiate criminal proceedings. Complaints of sexual offenses against civilian Defence employees or contracted staff members are also referred to ADFIS, which will then always refer the matter to the relevant civilian prosecution authorities.
Annex A of the Instruction lists the six offenses that are contained in Part IIIA of the Crimes Act 1900 (ACT) for which permission must be sought from the DPP (i.e., under section 63 of the DFDA, referred to above) in order for proceedings to take place under the DFDA. The Instruction notes that, “due to the serious nature of the [. . .] offences, it is unlikely the DPP would give consent for the Australian Defence Force to deal with them.” These offenses are: sexual assault in the first degree, sexual assault in the second degree, sexual assault in the third degree, sexual intercourse without consent, sexual intercourse with a young person, and maintaining a sexual relationship with a young person.
Annex A then lists three Crimes Act offenses that do not require DPP approval for proceedings to occur under the DFDA, but where legal advice should be obtained from the DMP before charges are brought within the military justice system: act of indecency in the second degree, act of indecency in the third degree, and act of indecency without consent.
Several offenses are then listed that are considered to be of such a serious nature that, where they are committed in Australia, “[i]n most cases it will be appropriate to immediately refer allegations of these offences to civilian investigation and prosecution agencies.” Commanders are advised to consult the relevant Defence Instruction on DFDA jurisdiction and seek legal advice before charging any of these offenses under the DFDA: act of indecency in the first degree, acts of indecency with young persons, incest and similar offenses, abduction, employment of young persons for pornographic purposes, possession of child pornography, and “using the Internet etc to deprave young people.”
3. Possible Actions
The Instruction clarifies that a member of the ADF can be suspended from duty while an alleged sexual offense is being investigated, after he or she has been charged with a civilian or service offense, or after conviction, pending the decision of a reviewing authority.
If the behavior of a respondent falls short of an offense, consideration may be given to initiating formal adverse administrative action. No such action can be taken while criminal or disciplinary proceedings are pending. Where a respondent is acquitted of a sexual offense following the proceedings, no adverse administrative action can be taken against the person in relation to the specific offense itself. However, the behavior that was the subject of the complaint may still result in such action being taken.
Where an ADF member is convicted of an offense, adverse administrative action may be taken against that person, including termination of service. In the context of civilian employees, various sanctions are available where the facts and circumstances that gave rise to the offense amount to a breach of the APS Code of Conduct. Defence contracted staff may also have their contract terminated.
B. Recent Reviews Relating to Sexual Abuse and the Treatment of Women
As noted in the introduction to this report, the ADF has faced criticism and controversy in recent years regarding standards of conduct and aspects of the culture of the ADF, including its handling of complaints that involve accusations of sexual abuse. Following allegations involving a female cadet at the ADF Academy being filmed having consensual sex and the video being broadcast over Skype, the Minister of Defence announced a range of reviews in April 2011. Then, in March 2012, the Minister of Defence, Secretary of Defence, and Chief of the Defence Force jointly announced an overarching strategy for implementing the various recommendations arising from these reviews. This strategy, called Pathway to Change – Evolving Defence Culture, relates to the following completed reviews and associated reports:
- DLA Piper Report of the Review of Allegations of Sexual and other forms of abuse in Defence
- Review of Personal Conduct of ADF Personnel
- Review of the Use of Alcohol in the ADF
- Review of Social Media and Defence
- Review of the Management of Incidents and Complaints
- Review of Employment Pathways for APS Women in the Department of Defence
- Review into the Treatment of Women in the Australian Defence Force Academy (Phase 1)
- Review into the Treatment of Women in the Australian Defence Force (Phase 2)
The implementation of these reviews through the Pathway to Change strategy has recently come under further scrutiny due to new allegations, made public in June 2013, that ADF personnel and contractors were involved in a ring that exchanged explicit material using ADF computer systems over a number of years. In the same month, a further scandal was also revealed in relation to hazing of recruits involving sex acts.
1. Establishment of the Defence Abuse Response Taskforce
As part of the response to the first review listed above, in late 2012 the government established an independent Defence Abuse Response Taskforce to receive and assess allegations of sexual and other abuse (e.g., bullying, harassment, and intimidation) that occurred before April 11, 2011 (the date that the DLA Piper review was announced). The Taskforce will then determine an appropriate response in individual cases, which may include the following:
- referral to counselling
- a Reparation Payment of up to $50,000
- referral of appropriate matters to police or military justice authorities for formal criminal investigation and assessment for prosecution
- referral to the Chief of the Defence Force for administrative action
- restorative engagement, possibly including apologies from appropriate senior Defence officers.
In addition to establishing the Taskforce, in November 2012 the Defence Minister made a general apology in Parliament to ADF members and Defence employees who had suffered sexual or other forms of abuse in the course of their employment. The Chief of Defence also issued a formal apology.
V. Effectiveness of the Military Justice System
The various reviews conducted in recent years considered a range of information and evidence, including personal accounts, expert advice, interviews, submissions, and statistics. Some of the findings in a selection of the reports completed since the 2005 Senate Report are highlighted below.
In addition to the below reviews, senior Defence personnel are currently conducting an inquiry titled “Re-thinking systems of inquiry, investigation, review and audit in Defence,” which includes the examination of aspects of the military justice system as well as other areas. A report on the research and analysis stage of this inquiry was published in August 2012.
1. Independent Review of the Reformed System (2009)
In early 2009, an independent report that assessed the health of the military justice system was published. This report related to the 2006 reforms that established the Australian Military Court (AMC), which was subsequently abolished later in 2009, as discussed above. The report noted that of the thirty recommendations in the Senate Report that had been accepted by the government, all but six had been implemented. It further noted that there had been a total of 382 recommendations relating to the system in reviews conducted over the previous ten years, with only twenty-eight of these still needing to be addressed.
The report examined various processes and arrangements at a detailed level and came to the overall assessment that “the MJS [military justice system] is delivering and should continue to deliver impartial, rigorous and fair outcomes; has greater transparency and enhanced oversight; is substantially more independent from the chain-of-command; and is effective in maintaining a high standard of discipline both domestically and in the operational theatre.” The two main areas of concern were that the reformed DFDA investigations and AMC hearings were “incurring delays in delivery of discipline.”
2. Inspector-General’s Review of the Management of Incidents and Complaints (2011)
In 2011 the Inspector-General of the ADF conducted a review of the current system for managing complaints and incidents. The review involved “specific reference to the treatment of victims making complaints, transparency of processes and the jurisdictional interface between military and civil law.”
The review considered both domestic and international benchmarks for managing complaints and incidents of “unacceptable behavior.” It found that the existing arrangements satisfied the requirements of the various domestic benchmarks, although there could be improvements around timeliness and training. It further found that, compared to systems in various other countries, “it appears that the ADF’s system of complaints and incident handling for dealing with unacceptable behaviour is amongst the most comprehensive and detailed. The ADF’s policies are comparable to those utilised by the United Kingdom, New Zealand and Canadian military.”
The Inspector-General recommended various improvements to clarify certain policies and concluded that
the fundamental underpinnings of the ADF’s complaint handling system remain valid. Structurally, the ADF processes reflect best practices, and this review has found no compelling reason to support radical structural change. The most productive opportunities for improvement lie in better implementation of the present policy and the review’s recommendations have wherever possible reflected this.
3. DLA Piper Review of Allegations of Sexual and Other Abuse in Defence (2011)
The DLA Piper report contained several findings and statements relating to the military justice system in the context of the handling of sexual abuse complaints over a number of years, including the following:
- There has been a history of underreporting of sexual and other abuse in the ADF, which in past years was exacerbated by aspects of ADF culture as well as aspects of the military justice system.
- A “substantial number of people” have been “dissatisfied and disillusioned with the ADF’s application of military justice processes and approach to complaint handling.”
- In the past, the ADF failed to use the full range of options to take actions against perpetrators of abuse. Instead, particularly in the mid- to late-1990s, the practice was to refer all sexual offenses, including minor indecencies, to the civilian authorities without investigating or considering possible concurrent (or subsequent) disciplinary or administrative action. Furthermore, there have been “low levels of prosecutions and/or inaction by civilian police or the ADF (including failure to take administrative or DFDA action) in failing to call perpetrators to account for unacceptable behaviour (including serious instances of assault).”
- The Fairness and Resolution Database of Unacceptable Behaviour has not been kept up to date.
The Defence Annual Report for 2011–12 states that the Department of Defence “has initiated action to improve information systems dealing with unacceptable behaviour” in response to the DLA Piper review and the Pathway to Change strategy.
On June 20, 2013, the Minister for Defence made a statement relating to the first interim report of the Defence Abuse Response Taskforce. In his statement he noted that “[a]nalysis by ADFIS shows that there have been on average 80 reports of sexual assault per year over the last five years.” In addition, he stated that research indicates that about 80% of victims do not report their experience. Furthermore,
[t]he number of unacceptable behaviour complaints is also higher than one would want to see, increasing since 2009 in the ADF and Defence more generally. Complaints in the ADF increased from 624 in 2009 to 631 in 2012 and in the Australian Public Service in Defence increased from 124 in 2009 to 180 in 2012. Pathway to Change encourages a reporting culture; one in which people are not afraid to come forward and report unacceptable behaviour in the confidence that it will be dealt with.
4. Broderick Report on the Treatment of Women in the ADF (2012)
The review into the treatment of women in both the ADF Academy and ADF was conducted by Elizabeth Broderick, the Sex Discrimination Commissioner within the Australian Human Rights Commission. In terms of statistics, the Broderick Report included information obtained from a database containing records of all sexual offense complaints in the ADF, which is maintained by the Values, Behaviour and Resolution Branch of the Defence Department. The complaint numbers were as follows:
- 2008: 87
- 2009: 74
- 2010: 50
- 2011: 42
The report also presented the following figures for the number of “initial reports to ADFIS of sexual assault and related offences,” which were obtained from the Service Police Central Records Office of ADFIS:
- 2008: 58
- 2009: 82
- 2010: 86
- 2011: 84
The Broderick report therefore concluded that
[i]t is difficult to reconcile the data provided by the Values, Behaviour and Resolution Branch, ADFIS and the IGADF 2011 report. This is concerning, as it means that trends cannot be followed, offenders and repeat offenders cannot be tracked and areas in which sexual abuse are occurring cannot be identified with accuracy. It also means that targeted preventative strategies cannot be properly put in place. Of considerable concern is that the failure to capture incidents of sexual abuse accurately can place ADF members at risk of harm from undetected or untracked offenders. 
Furthermore, the report states that most state and territory police forces were unable to provide information concerning the number of reports, charges, and convictions relating to sexual and indecent assault involving ADF members, as these jurisdictions do not record whether an offender or victim is a member of the ADF.
The recommendations made in the Broderick Report included the establishment of a dedicated Sexual Misconduct Prevention and Response Office “to coordinate timely responses, victim support, education, policy, practice and reporting for any misconduct of a sexual nature, including sexual harassment and sexual abuse in the ADF.” This recommendation was accepted by the government, as were recommendations related to allowing personnel to make confidential reports of sexual harassment, discrimination, or abuse (also recommended by the DLA Piper review), and the introduction of waivers that would allow victims of sexual assault or harassment to discharge from the ADF expeditiously and without financial penalty.
5. Senate Committee Report on DLA Piper Review (2013)
Most recently, on June 27, 2013, the Senate Foreign Affairs, Defence and Trade Committee released its own report on the DLA Piper Review and the government’s response to it. The Committee made several recommendations, including the following:
- Defence should “actively encourage senior officers to participate in the Defence Abuse Response Taskforce’s restorative engagement program with victims of abuse.”
- Following the conclusion of the Taskforce’s operation, the Minister for Defence should facilitate the “productive use” of the depersonalized statistical database of information regarding reported incidents of abuse.
- There should be an independent review to determine whether any functions of the Taskforce should continue in another form.
- The Inspector-General’s recommendation that the appointment of case officers to support complainants and respondents be required in all cases should be implemented.
- At the completion of the implementation of the Pathway to Change strategy, the government should conduct an independent review of its outcomes and the need for further reform.
There has been considerable, and ongoing, discussion and analysis of aspects of Australia’s military justice system over the past decade. Some significant changes have been made in that time, including the introduction of an independent Director of Military Prosecutions, adjustments to procedures and requirements for reporting and handling complaints, and amendments to the Defence Instruction on the management of sexual offenses. At this time, work is underway to address concerns across a range of areas, including renewed attempts to remove proceedings for serious offenses from the ADF chain of command through the establishment of a Military Court.
It is difficult to assess the impact of the various changes individually, as these may have been grouped together or implemented over longer and overlapping periods. In addition, work related to improving the military justice system may be accompanied by efforts to address cultural issues. For example, apart from the significant restructuring that could occur should a Military Court be reestablished, some of the current areas of work that may impact the effectiveness of the military justice system, particularly in relation to sexual offenses, in the coming years include:
- The assessment of, and restorative engagement processes related to, historic abuse complaints through the Defence Abuse Response Taskforce;
- The implementation of the Pathway to Change strategy, which seeks to address a wide range of cultural issues and includes a focus on encouraging a “reporting culture” for unacceptable behavior;
- The establishment of a Sexual Misconduct Prevention and Response Office as part of the Pathway to Change strategy;
- Initiatives to improve information systems for recording complaints;
- An inquiry by senior Defence personnel that may result in changes to internal systems of inquiry, investigation, review, and audit; and
- Changes to allow confidential reports of sexual harassment, discrimination, or abuse (i.e., restricted reporting).
Chief, Foreign, Comparative,and International Law Division I
 For example, a review of the military justice system in 2009 stated that there had been twelve separate reviews and reports on aspects of the system in the previous decade. L. Street & L. Fisher, Report of the Independent Review on the Health of the Reformed Military Justice System 5 (Jan. 23, 2009), http://www.defence. gov.au/publications/Report_Reformed_Military_Justice_System.pdf. The relevant reviews are listed at id. pp. 6–8.
 Department of Defence, Re-Thinking Systems of Inquiry, Investigation, Review and Audit in Defence: Report on Stage A (Research and Analysis Stage) 26 (Aug. 1, 2012), http://www.defence.gov.au/header/ documents/StageAreport.pdf.
 For a discussion of some of these cases see Geoffrey Kennett, The Constitution and Military Justice After White v Director of Military Prosecutions, 36(2) Fed. L. Rev. 231 (2008), http://flr.law.anu.edu.au/sites/flr.anulaw. anu.edu.au /files/flr/Kennett.pdf.
 Senate Foreign Affairs, Defence and Trade References Committee, The Effectiveness of Australia’s Military Justice System (Senate Report) (June 2005), http://www.aph.gov.au/Parliamentary_Business/ Committees/Senate_Committees?url=fadt_ctte/miljustice/report/index.htm.
 See, e.g., Defence Force Discipline Regulations 1985 (Cth), http://www.comlaw.gov.au/Details/F2011C00695. Provisions related to appeals are included in the Defence Force Discipline Appeals Act 1955 (Cth), http://www.comlaw.gov.au/Details/C2011C00593; and Defence Force Discipline Appeals Regulations 1957 (Cth), http://www.comlaw.gov.au/Details/F2009C01292.
 Senate Report, supra note 4, 2.7.
 See Military Justice System, Department of Defence, http://www.defence.gov.au/mjs/mjs.htm (last visited July 8, 2013). As noted on this website, the military justice system includes both a discipline system and an administrative system. This report is primarily concerned with the discipline system, which includes the investigation of prosecution of offenses, rather than the administrative system, which involves organizational controls related to performance issues.
 The three volumes of the Discipline Law Manual are available at Australian Defence Force Warfare Centre: Joint Doctrine Library, Department of Defence, http://www.defence.gov.au/adfwc/ADFP.html (last visited July 8, 2013).
 Several Defence Instructions are available at Values, Behaviours and Resolutions: Publications, Department of Defence, http://www.defence.gov.au/fr/frpublications.htm, and at Audit and Fraud Control: Policy, Department of Defence, http://www.defence.gov.au/oscdf/afc/policy.htm (both last visited July 8, 2013). See, e.g., DI(G) ADMIN 45-2, The Reporting and Management of Notifiable Incidents (26 March 2010), http://www.defence.gov.au/oscdf/afc/pdf/GA45_02.pdf (outlining the primary requirements and common procedures for the reporting, recording, and investigation of alleged offences).
 See DFDA s 3 for a definition of “service tribunals.”
 See Senate Report, supra note 4, 2.19. There are three levels of summary authority: a superior summary authority, a commanding officer, and a subordinate summary authority. DFDA s 3.
 DFDA s 111B.
 Id. s 114.
 Id. ss 114 & 116. A general court-martial comprises a president, who is not below the rank of Colonel, and at least four other members. A restricted court-martial comprises a president, who is not below the rank of Lieutenant Colonel, and at least two other members.
 Id. s 127.
 Id. s 129.
 Press Release, Hon. Danna Vale, MP, First Australian Director of Military Prosecutions (June 3, 2003), http://www.defence.gov.au/minister/15tpl.cfm?CurrentId=2915; Department of Defence, Annual Report 2004–05, http://www.defence.gov.au/budget/04-05/dar/03_07_investigations06.htm.
 James Burchett QC, Report of an Inquiry into Military Justice in the Australian Defence Force 206-36 (2001), http://www.defence.gov.au/media/DeptTpl.cfm?CurrentID=893.
 Defence Legislation Amendment Bill (No. 2) 2005, Parliament of Australia, http://www.aph.gov.au /Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s483 (last visited July 8, 2013).
 Military Justice: Organisations Within the Military Justice System that can Provide Assistance to ADF Members – Director of Military Prosecution, Department of Defence, http://www.defence.gov.au/mjs/organisations.htm#F (last visited July 8, 2013). Further information on how the DMP performs its role can be found in the following documents: Director of Military Prosecutions Directive 02/2009 – Prosecution and Disclosure Policy, http://www.defence.gov.au/legal/pdf /ddcs/dmp-2-2009.pdf; Department of Defence, Director of Military Prosecutions Report for the Period 1 January to 31 December 2012 (2012), http://www.defence.gov.au/ publications/DMP_Annual_Report _2012.pdf.
 DFDA s 188GG.
 Senate Report, supra note 4, 2.13.
 DFDA s 61. This provision relates to the application of the Crimes Act 1900 (ACT), the Crimes Act 1914 (Cth), and the Criminal Code Act 1995 (Cth). In addition, provisions of the DFDA refer to the application of chapter 2 of the Criminal Code 2002 (ACT), which sets out general principles of criminal responsibility.
 Senate Report, supra note 4, 2.14.
 Id. 3.7. See also Defence Legislation Amendment Bill 2006: Explanatory Memorandum, http://www.comlaw .gov.au/Details/C2006B00145/Explanatory%20Memorandum/Text.
 Senate Report, supra note 4, 2.15.
 DFDA s 63.
 The sexual assault offenses are included by virtue of section 63(1)(a)(ia), which refers to sections 51 to 55 of the Crimes Act 1900 (ACT), http://www.legislation.act.gov.au/a/1900-40/default.asp.
 Inspector General Australian Defence Force, Review of the Management of Incidents and Complaints in Defence including Civil and Military Jurisdiction 147 (2011), http://www.defence.gov.au/pathwaytochange/docs/incidentscomplaints/Review%20of%20the%20Management%20of%20Incidents%20and%
 Senate Report, supra note 4, 2.8.
 Department of Defence, Government Response to the Senate Foreign Affairs, Defence and Trade References Committee: Report on the Effectiveness of Australia’s Military Justice System (Government Response) 13–15 (Oct. 2005), http://www.defence.gov.au/mjs/docs/mji_government_response_4oct052.pdf.
 Id. at 14.
 Id. at 5.
 Defence Legislation Amendment Bill 2006, Parliament of Australia, http://www.aph.gov.au/Parliamentary _Business/Bills_Legislation/Bills_Search_Results/Result?bId=r2621 (last visited July 7, 2013).
 Defence Legislation Amendment Bill: Explanatory Memorandum 2, http://parlinfo.aph.gov.au/parlInfo/ download/legislation/ems/r2621_ems_ae33dcae-40a8-4b85-8cad-42ac048f9f2e/upload_pdf/305074.pdf; fileType=application%2Fpdf.
 See Department of Defence, Frequently Asked Questions on the Australian Military Court, http://www.defence .gov.au/mjs/resources/AMCFAQs.pdf.
 Sue Harris Rimmer & John Moremon, Defence Legislation Amendment Bill 2006, at 13–15 (Parliamentary Library Bills Digest No. 48, 2006–07, Oct. 31, 2006), http://parlinfo.aph.gov.au/parlInfo/download/legislation/ billsdgs/TCCL6/upload_binary/tccl64.pdf;fileType=application/pdf.
 Lane v Morrison  HCA 29, http://www.austlii.edu.au/au/cases/cth/HCA/2009/29.html. For media reaction to the case, see, e.g., Joel Gibson & Brendan Nicholson, Military Justice System in Tatters, The Sydney Morning Herald (Aug. 27, 2009), http://www.smh.com.au /national/military-justice-system-in-tatters-20090826-ezso.html.
 Chapter III of the Australian Constitution outlines the requirements for the exercise of judicial power, providing for the creation of judicial tribunals, the appointment of judges, and judge’s conditions of tenure. See Paula Pyburne, Military Justice (Interim Measures) Amendment Bill 2013, at 4 (Parliamentary Library Bills Digest No. 98, 2012–13, Apr. 9, 2013), http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/2359197 /upload_binary/2359197.pdf;fileType=application/pdf.
 See Military Justice (Interim Measures) Bill (No. 1) 2009: Explanatory Memorandum, http://www.comlaw.gov .au/Details/C2009B00170/Explanatory%20Memorandum/Text; Cth, Parliamentary Debates, House of Representatives, 14 September 2009, 9446 (Mike Kelly MP, Parliamentary Secretary for Defence Support), http:// parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2009-09-14/0071/hansard_frag.pdf;fileType=application %2Fpdf.
 Military Justice (Interim Measures) Amendment Bill 2011, Parliament of Australia, http://www.aph.gov.au /Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4566 (last visited July 7, 2013).
 Military Justice (Interim Measures) Amendment Bill 2013, Parliament of Australia, http://www.aph.gov .au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5030 (last visited July 3, 2013).
 Military Court of Australia Bill 2012, Parliament of Australia, http://www.aph.gov.au/Parliamentary _Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4853 (last visited July 3, 2013).
 Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012, Parliament of Australia, http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result ?bId=r4854 (last visited July 8, 2013).
 Press Release, Stephen Smith MP & Nicola Roxon MP, Legislation to Establish Military Court of Australia (June 21, 2012), http://www.minister.defence.gov.au/2012/06/21/minister-for-defence-and-attorney-general-joint-media-release-legislation-to-establish-military-court-of-australia/. See also Ian McCluskey, Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012, at 2 (Parliamentary Library Bills Digest No. 101, 2012–13, Apr. 16, 2013), http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/2375861/ upload_binary/2375861.pdf.
 Ian McCluskey & Paula Pyburne, Military Court of Australia Bill 2012, at 10 (Parliamentary Library Bills Digest No. 71, 2012–13, Feb. 8, 2013), http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1213a/13bd071.
 Senate Legal and Constitutional Affairs Legislation Committee, Report on Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions] (Oct. 2012), http://www.aph.gov.au/ Parliamentary_ Business/Committees/Senate_Committees?url =legcon_ctte/completed_inquiries/2010-13/military_court_ 2012/report/index.htm; Senate Foreign Affairs, Defence and Trade Legislation Committee, Report on Provisions of the Military Court of Australia Bill 2012 and the Provisions of the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (Aug. 2012), http://www. aph.gov.au/Parliamentary_Business/ Committees/Senate_Committees?url=fadt_ctte /completed_inquiries/2010-13/military_court/report/report.pdf.
 McCluskey & Pyburne, supra note 50.
 Id. (title page).
 Id. 3.
 Id. 10.
 DI(G) PERS 35-4 AMDT 1, supra note 54, at 2.
 Id. 79.
 Id. 80.
 Id. 83.
 Id. at A-1.
 Id. at A-2.
 Id. 82.
 Id. 84.
 Id. 85.
 Id. 86.
 Id. 88.
 Id. 90.
 Id. 92.
 For the latest on this case, see, e.g., Elizabeth Byrne, ADFA Skype Scandal Trial to Go Ahead, ABC News ( June 27, 2013), http://www.abc.net.au/news/2013-06-27/skype-scandal-trial-to-go-ahead/4784974.
 See Peter Veness, ADFA Scandal Leads to Six Reviews, The Age (Apr. 11, 2011), http://news.theage.com.au/ breaking-news-national/adfa-scandal-leads-to-six-reviews-20110411-1daks.html.
 See Dan Box & Joe Kelly, Sex Films Revive Defence Scandal, The Australian (June 14, 2013), http://www.theaustralian.com.au/national-affairs/defence/sex-films-revive-defence-scandal/story-e6frg8yo-1226663517637; Max Blenkin, Defence Force Outraged at Sex Scandal, Adelaide Now (June 21, 2013), http://www.adelaidenow.com.au/news/national/army-faces-appalling-situation-chief/story-e6frea7l-1226663241840.
 Alys Francis, ADF Recruits Performed Sex Acts in Hazing, Sources Say, 9News National (June 22, 2013), http://news.ninemsn.com.au/national/2013/06/22/12/11/adf-recruits-performed-sex-acts-in-hazing-sources.
 See generally Pathway to Change: DLA Piper Review of Allegations of Sexual Abuse and Other Abuse in Defence, Department of Defence, http://www.defence.gov.au/pathwaytochange/Docs/DLAPiper/index.htm (last visited July 8, 2013).
 Press Release, Department of Defence, Govt Responds to Review into Allegations of Abuse in Defence (Nov. 26, 2012), http://www.defence.gov.au/defencenews/stories/2012/nov/1126.htm; Press Release, Stephen Smith MP, Government Response to the Review into Allegations of Sexual or Other Forms of Abuse in Defence (Nov. 26, 2012), http://www.minister.defence.gov.au/2012/11/26/minister-for-defence-government-response-to-the-review-into-allegations-of-sexual-or-other-forms-of-abuse-in-defence/.
 Frequently Asked Questions: How Exactly is the Government Responding to DLA Piper’s Review of Abuse in Defence?, Defence Abuse Response Taskforce, http://www.defenceabusetaskforce.gov.au/about/Pages/ Frequently-asked-questions.aspx#responding (last updated July 1, 2013). The Taskforce recently released its Second Interim Report, which the Minister of Defence presented to Parliament on June 20, 2013. Reports are available on the Taskforce’s website, at http://www.defenceabusetaskforce.gov.au/reports/Pages/default.aspx (last visited July 8, 2013). See also Press Release, Stephen Smith MP, Paper Presented on the Defence Abuse Response Taskforce (June 20, 2013), http://www.minister.defence.gov.au/2013/06/20/minister-for-defence-stephen-smith-paper-presented-on-the-defence-abuse-response-taskforce/.
 Press Release, Stephen Smith MP, Ministerial Statement in the House of Representatives – Apology to People Subjected to Sexual or other Forms of Abuse in Defence (Nov. 26, 2012), http://www.minister.defence.gov.au/ 2012/11/26/minister-for-defence-ministerial-statement-in-the-house-of-representatives-apology-to-people-subjected-to-sexual-or-other-forms-of-abuse-in-defence/.
 Transcript, Department of Defence, Statement from General David Hurley, Chief of the Defence Force (Nov. 26, 2012), http://news.defence.gov.au/2012/11/26/statement-from-general-david-hurley-chief-of-the-defence-force/.
 Department of Defence, Re-Thinking Systems of Inquiry, Investigation, Review and Audit in Defence: Report on Stage A (Research and Analysis Stage), supra note 2. A report on the second stage of the project, concerning possible models for a new system of inquiry, investigation, and review, was scheduled to be presented in February 2013.
 Street & Fisher, supra note 1.
 Id. at 5–6.
 Id. at 8.
 Id. at viii.
 Id. See also id. at 9, 16–17.
 Pathway to Change: Review of the Management of Incidents and Complaints in Defence, Department of Defence, http://www.defence.gov.au/pathwaytochange/docs/incidentscomplaints/index.htm (last visited July 8, 2013).
 Inspector General Australian Defence Force, supra note 31, at 33.
 Id. at 49.
 Gary Rumble et al., Report of the Review of Allegations of Sexual and Other Abuse in Defence: Facing the Problems of the Past 105, 119–21 (Vol. 1, Oct. 2011), http://www.defence.gov.au/culturereviews/ docs/DLAPiper/Volume1.pdf.
 Id. at 106.
 Id. at 111, 116, 139–45, 152.
 Id. at 106.
 Id. at 135.
 Department of Defence, Annual Report 2011–12, at 282 (2012), http://www.defence.gov.au/budget/11-12/dar/dar_1112_3.pdf.
 Press Release, Stephen Smith MP, Paper Presented on the Defence Abuse Response Taskforce, supra note 83.
 See generally, Review into the Treatment of Women in the Australian Defence Force Academy and Australian Defence Force, Australian Human Rights Commission, http://defencereview.humanrights.gov.au/ (last visited July 8, 2013). For information on the government’s response to the review, see Press Release, Stephen Smith MP & Warren Snowdon MP, Review into the Treatment of Women in the Australian Defence Force (Aug. 22, 2012), http://www.minister.defence.gov.au/2012/08/22/minister-for-defence-and-minister-for-defence-science-and-personnel-joint-media-release-review-into-the-treatment-of-women-in-the-australian-defence-force/; Press Release, Stephen Smith MP, Treatment of Women in the ADF (Nov. 26, 2012), http://www.minister.defence.gov.au/2012/11/26/minister-for-defence-treatment-of-women-in-the-adf/.
 Australian Human Rights Commission, Review into the Treatment of Women in the Australian Defence Force: Phase 2 Report 254 (2012), http://defencereview.humanrights.gov.au/sites/default/files/adf-complete.pdf.
 Id. at 255.
 Australian Human Rights Commission, supra note 104, at 36.
 Id. at 135–39.
 Press Release, Stephen Smith MP, Treatment of Women in the ADF, supra note 103.
 See generally, The Report of the Review of Allegations of Sexual and Other Abuse in Defence, Conducted by DLA Piper, and the Response of the Government to the Report, Senate Standing Committee on Foreign Affairs, Defence and Trade, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=fadt_ctte/dla_piper/index.htm (last visited July 8, 2013).
 The full list of recommendations can be found in the Committee’s report: Senate Foreign Affairs, Defence and Trade References Committee, Report of the DLA Piper Review and the Government’s Response xi-xii (June 2013), http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=fadt_ctte/dla_piper/report/index.htm.
 For a more complete list of current activities in this area, see Press Release, Stephen Smith MP, Paper Presented on the Defence Abuse Response Taskforce, supra note 83.