MINISTER FOR DEFENCE
STEPHEN SMITH, MP
Stephen Smith, Minister for Defence
Question without Notice on Monday, 18 October 2010
Director of Military Prosecutions
I thank the member for Banks for his question. He has a long-standing interest in matters related to
justice. He asks me about the creation of the position of Director of Military Prosecutions. He asks me
for the rationale
for the independence of the prosecutor and he asks me what role, if any, there is for
government in this matter.
The position of the Director of Military Prosecutions was of course created by legislation introduced
by the Howard Government, of which the Leader of the Opposition was a Cabinet member. It was
passed by the Parliament with bipartisan support including with the support in the Senate of the now
Shadow Minister for Defence, Senator Johnston, in 2005. It had bipartisan support, as it should.
The first and current Director of Military Prosecutions was appointed by the Howard Government in
July 2006. The creation of the position of Director of Military Prosecutions was established following
upon consideration of a number of reports including, importantly, a seminal Senate report in June or
July 2005.
When the report was received on 16 June 2005 in the Senate, Senator Johnston, the now Shadow
Minister for Defence said, and he was referring to two reports:
The most crucial and telling aspect of both of those inquiries was that the reports handed down
were unanimous. There was no party politics and no point scoring involved in this exercise.
That is a very good analysis for the House to take. It is a very good analysis for Senator Johnston
himself to follow. It is a very good analysis for the Leader of the Opposition. It is an analysis which I
know the Member for Fadden has been following.
On 20 June 2008, again in Committee, Senator Johnston, when considering some of the reforms
proposed to Australia’s military justice system, said:
These statutory officers have to be completely independent.
They are statutory officers, so the notions of complete independence and of no point scoring or
partisan politics in these matters are referred to us as advice in analysis by Senator Johnston and we
should follow that.
We have seen in recent times the first illustration of the Director of Military Prosecutions bringing
charges against three Australian defence personnel, as a result of an incident in Afghanistan in
February 2009 which saw the tragic death of six civilians.
I make no comment on the incident itself; that would be inappropriate. I make no comment on the
processes other than to say that they are properly independent of Government as they should be and
that we allow the military justice system to take its course.
The one fundamental change that we are dealing with here has been the creation of the position of
Director of Military Prosecutions, presented to the Parliament by the Howard Government and
supported by legislation during its time.
It is the provision of that legislation that in the course of consideration of the Director of Military
Prosecutions bringing a charge or charges that defence service chiefs, the Chief of the Defence Force
or his representatives, can make representations under section 5A of the legislation to the military
prosecutor about general defence matters, not about guilt or innocence or whether charges should be
preferred or not.
Indeed, in this case when asking for such representations the Director of Military Prosecutions
expressly advised the CDF not to make comments about preferring of charges or not because that
would impact upon her independence.
It is of course clearly inappropriate for the Government of the day to seek to inveigle itself into these
matters. Where there is a role for Government of course is to ensure, as I, the Chief of Army and the
CDF have made clear, that the three personnel concerned have access to whatever legal resources and
advice they require to properly defend themselves. As well as other appropriate support and advice
from the Defence Forces so far as their families are concerned as they go through a very difficult
process, which we have no other opportunity or alternative other than as a result of legislation passed
by the House and the Senate to respect that independent process.
NEWS 
