57 Though the reasons just given are sufficient to explain why we have made the orders mentioned, we consider ourselves duty bound to make the following additional observations.
58 One of the documents which, by reg 8(1)(b) of the Defence Force Discipline Appeals Regulation 2016 (Cth), the Registrar of Military Justice is obliged to transmit to the Tribunal’s Registrar is “a record of any review with respect to the proceedings of the court martial or Defence Force magistrate”. The reviewing officer’s report under s 154 of the DFDA is such a document. Such reports in no way bind the Tribunal but they can be of assistance in provoking thinking on the part of an appellant, a service chief respondent, and the Tribunal about legal issues or, as in the present case, for the summaries of evidence they may offer. Their transmission to the Tribunal, and thus the Tribunal’s scrutiny of them, is not coincidental but intended by the Governor-General in Council in making this regulation pursuant to the Appeals Act.
59 In the case of a conviction by a court martial or Defence Force magistrate, such a report must be prepared by a legal officer appointed by instrument in writing by the Chief of the Defence Force or a service chief on the recommendation of the Judge Advocate General: s 154(1)(a) DFDA. Subject to any contrary opinion which may be expressed by the Judge Advocate General or a Deputy Judge Advocate General upon any further review, a reviewing authority is bound by any opinion on a question of law set out in a report obtained under s 154: ss 154(2) and 154(4), DFDA.
60 The report made by a reviewing officer or the Judge Advocate General or a Deputy Judge Advocate General under s 154 of the DFDA in respect of a conviction and sentence is intended to be an independent, internal opinion in respect of that conviction and sentence. Unfortunately, the report provided in this case, which was otherwise comprehensive, careful and balanced, did not confine itself to expressing such an opinion, but also offered policy advice to the reviewing authority in respect of the taking of administrative action against CAPT [William Michael] Howieson regardless of the outcome of the disciplinary proceedings. The administrative action contemplated was apparently early termination of his service pursuant to reg 24 of the Defence Regulation 2016 (Cth). This policy advice, with respect, ought not to have been furnished by the reviewing officer.
61 Under the DFDA, it is no part of the functions of the Judge Advocate General or a s 154 reviewing officer to furnish such policy advice to the Chief of the Defence Force, a service chief or any reviewing authority. Those officers must look to other advisers for such policy advice. The author of a s 154 report must not just be independent but be seen to be independent. Presuming to furnish such policy advice is antithetical to that independence.
62 In a case where a court martial panel has deliberately chosen not to impose a sentence of dismissal from the Australian Defence Force on a defendant and, instead, imposed a sentence in which an opportunity for rehabilitation is an element, the taking of such administrative action could be regarded as undermining the court martial process. We otherwise expressly refrain, because it is no part of the Tribunal’s function, from expressing any view about the merits, if any, of the policy advice furnished in the s 154 report. However, having noted that it has been given, we do consider ourselves duty bound to draw the report and our observations concerning it to the attention of the Judge Advocate General. We shall therefore give a direction to the Registrar to furnish the Judge Advocate General with a copy of these reasons and that report.
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