Defence Criminal Investigations Hamstrung by Discipline Laws: Prosecutor

Military prosecutors should take a more active role in investigating cases in a bid to improve confidence in the military discipline system, a prosecutor argues.

Laws governing defence force disciplinary investigations are also decades out of date and in “urgent need of review”, Director of Military Prosecutions, Jennifer Woodward, CSC, said.

Brigadier Woodward warned that without reform, most fraud offences committed by defence force personnel would need to be investigated and prosecuted by civilian authorities.

The military’s top prosecutor used her annual report to argue the Australian Defence Force should consider abandoning the current military discipline system – based on the largely adversarial civil criminal justice model – and adopt alternative approaches, such as an inquisitorial system.

In inquisitorial-based court systems, such as those in Europe, judges and magistrates play an active role in the gathering of evidence and questioning witnesses.

The Brigadier said there was a “level of dissatisfaction with the current state of the military discipline system” with concerns the system had become “overly complex and difficult to use, unresponsive and characterised by delay, and was costly to operate”.

“As a consequence, there have been a number of initiatives to reform the discipline system in order to ensure it would become responsive, and enable command to take timely and effective action in response to allegations of misconduct.”

Brigadier Woodward argued the current reform process was an opportunity take a fresh look at the purpose of the military justice system.

She said the system was expected to meet international obligations and fundamental human rights, while also making ADF personnel accountable, and maintain an effective, disciplined military that followed professional standards and met government and community expectation.

“Currently, we have an investigative model … with statutory guarantees such as of a right to silence and even a right to opt out of a disciplinary investigation.

“The idea of adopting alternative investigative approaches including an inquisitorial approach is something that I think, must be contemplated.

“What is important is that individuals, command, government and the community can have certainty and confidence in the system and its various interactions, and the achievement of fair outcomes and finality.”

Brigadier Woodward also said some provisions within the Defence Force Discipline Act currently inhibited inquiries into matters such as fraud and there was an urgent need to reform the law so investigators could properly respond to offending in the 21st century.

She said the laws often prevented the Australian Defence Force Investigative Service from collecting enough material to form a brief of evidence.

Brigadier Woodward said a number of other blocks to the collection of information by defence investigators also existed, including privacy and telecommunications law, and the fact ADFIS could not issue search warrants, instead relying on civil police to extract information from civilian entities such as banks, airlines, real estate agents, and even from Defence Housing Australia.

“Regrettably … there have been no significant changes made to these provisions since the enactment of the DFDA in 1982. Consequently, the investigative provisions of the DFDA are over 40 years old.”

“As much of the evidence required for prosecution of fraud and related offences now comes from external sources outside the Department of Defence, it is increasingly apparent that without DFDA reform, all fraud offences committed by ADF members will need to be investigated and prosecuted outside the ADF.”