Outdated legislation covering Defence Force members reporting mental health issues when they come before the military justice system are set to be overhauled.
After years of campaigning from the Director of Military Prosecutions a draft bill is set to be put before Parliament in 2020, and will "[align] with best practice in civilian criminal jurisdictions".
Director of Military Prosecutions Brigadier Jennifer Woodward had been calling for reform of the way mental health is dealt with in military trials for four years, including in the annual report for 2018, which was published last week, despite being handed to the former minister in March.
Defence Force members under investigation by the force's internal investigation and prosecution system are reporting mental health issues "in increasingly large numbers," either as a reason for offending, or a reason why a trial shouldn't proceed or a sentence should be lessened.
But under the Defence Force Discipline Act, written 37 years ago, if a person is deemed unfit to stand trial due to mental impairment, or if mental impairment is found to be the reason for the offence, they must be kept in custody "at the pleasure of the Governor General" indefinitely.
The provision is "clearly antiquated," Brigadier Woodward has said, and has never been used.
Most jurisdictions have moved beyond indefinite detention and have sentencing regimes aimed at rehabilitation and mental health treatment programs.
"The Government has provided policy approval for the modernisation of the mental health provisions in the Defence Force Discipline Act 1982, aligning with best practice in civilian criminal jurisdictions," Brigadier Woodward said in a statement on Tuesday, after The Canberra Times questioned the Defence Minister over the annual report.
"Defence is working with the Officer of Parliamentary Council, the Australian Government Solicitor and the Attorney-General's Department to prepare a draft bill which addresses these reforms. The bill will be proposed for inclusion in the 2020 parliamentary sitting calendar."
The Director of Military Prosecutions has previously said the laws "desperately" need changing.
"Particularly to establish treatment plans and diversionary conferencing, not only because of the growing prevalence of mental health issues, but because of the gross inadequacy of the existing legislative provisions in the DFDA," the annual report said.
Brigadier Woodward also used the annual report to draw attention to issues retaining capable staff, because of a perceived lack of career pathways within the individual defence services.
"Currently there appears to be little recognition of officers, by the Service career management agencies, who wish to focus their careers in the military justice arena. At the end of 2018, and moving into 2019, my Office only had three experienced prosecutors apart from me and two of those prosecutors have only two years' experience," she wrote.
In a statement on Tuesday Brigadier Woodward said some of the issues raised in her annual report had been addressed, including filling the Senior Prosecuting Officer position.
Just one vacancy remained within the office, she said.
"Defence is working to fill this vacancy as well considering how to bring the office of Director of Military Prosecutions back to full staffing levels both through full-time, permanent staff and reserves."
The Military Prosecutor's report comes after a survey by the Inspector General of the Australian Defence Force reported the use of administrative sanctions within the defence force had been increasing, with military trials through the Defence Force Discipline ACT declining over the same time period.
More than 200 people had their service terminated in 2017-18 through administrative sanctions, and 1130 administrative sanctions were handed down.
A survey completed by 10,000 defence force members in 2017 found less than half thought the discipline system was fairly and consistently applied.
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