Defence Legislation Amendment Bill 2007

Date introduced: 15 August 2007

House: House of Representatives

Portfolio: Defence

Commencement: Schedules 1 – 6 on a day to be fixed by Proclamation or 1 May 2008, whichever is the earlier; Schedule 7 items 1 and 39 to 43, Parts 2 and 7 and Schedule 8 on the date of Royal Assent; the remaining provisions following the commencement of the Defence Legislation Amendment Act 2006 or the date of Royal Assent, whichever is the later.

Links: The relevant links to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.

Purpose

To give effect to the Government’s response to the Report by the Senate Foreign Affairs, Defence and Trade References Committee entitled ‘The effectiveness of Australia’s military justice system’ by amending the Defence Act 1903 (the Defence Act), Defence Force Discipline Act 1982 (the DFDA) and Defence Force Discipline Appeals Act 1955 (the DFDAA). This will modernise and redesign the summary discipline procedures by providing for:

Background

Inquiries and oversight into the military justice system

Over the past decade, a number of court challenges and publicly aired complaints brought by former and serving personnel, their families and other community members suggested that the military justice system was flawed. Significant official inquiries included:

Each of these inquiries identified flaws in the Australian Defence Force (ADF) military justice system and processes, and recommended changes. As General Peter Cosgrove put it, while some of the recommendations were acted upon, there appeared also to be an element of resistance within the ADF, which viewed the military justice system as ‘sound, even if it has sometimes not been applied as well as we would like’. [1]

2003 Senate inquiry into effectiveness of military justice system

In March 2003, the Defence Legislation Amendment Bill 2003 was introduced into Parliament. After the second reading, in October 2003 the Senate referred the issue of military justice to the Foreign Affairs, Defence and Trade References Committee for inquiry (the 2003 Committee).

The 2003 Committee was instructed to inquire and report on the effectiveness of the military justice system in a number of areas. These included determining whether the system provided impartial, rigorous and fair outcomes for ADF members; mechanisms to improve transparency and public accountability of military justice procedures; the handling of inquiries into peacetime deaths in the ADF, from any cause; and allegations of mistreatment of ADF members and of drug abuse. The 2003 Committee was also to assess the impact, if any, of previous reports on the military justice system, and determine whether recommendations were acted upon effectively. Several well known cases were identified for special evaluation. [2]

The 2003 Committee heard evidence from former and serving members of the ADF, including senior officers, family members, and other interested parties. It concluded that ‘the ADF has proven itself manifestly incapable of adequately performing its investigatory function’. [3] Investigations were found to be inadequate as a result of ‘poorly trained and on occasion incompetent investigating officers’. [4] Boards of Inquiry were lacking in transparency and independence. Processes of investigation and trial were found to have placed great stress on individuals, leading to loss of confidence, loss of employment, suicidal thoughts, and attempted and actual suicides. ADF members were reluctant to lodge complaints about superior officers, non-commissioned officers or their peers because they doubted the effectiveness and impartiality of the system. Review processes were inadequate. The report on military justice declared: ‘The committee believes that the military justice system in its current form clearly needs a comprehensive, ground up reform.’ [5]

Its report was released on 16 June 2005. The 2003 Committee concluded that there was a need for a wholesale review of the military justice system and made 40 recommendations.

Government response

The Government issued its response on 5 October 2005. It agreed that 30 of the 40 recommendations should be accepted in whole, in part or in principle. [6] Many could be dealt with by new or enhanced processes within the ADF. The civil and military leaderships of the Department of Defence expressed their commitment to providing ‘a fair and equitable workplace that includes a transparent and cohesive military justice system’. [7]

Implementation of change

Because of the extent of the changes that were acknowledged to be necessary, implementation is being staged. The Defence Legislation Amendment Act 2006 (the 2006 Amendment Act) delivered on some of the recommendations. The relevant bills digest provides extensive background information and sections of it are reproduced in the ‘Background’ section of this digest.

This Bill provides for a further set of changes which, in part, build on the changes in the 2006 Amendment Act.

Australia’s military justice system

The military justice system has two distinct but interrelated elements: the discipline system and the administration system. They provide the framework for (discipline) investigation and prosecution of offences committed under the DFDA and (administrative) maintenance of professional standards in the ADF and investigation of certain occurrences, such as accidental deaths of ADF personnel.

Offences dealt with under the discipline system can be grouped into three categories:

The incorporation of civilian criminal offences into the military discipline system enables these offences to be dealt with should they occur when ADF members are overseas in circumstances where an adequate criminal law framework is absent (for example, in a war-torn country in which law and order has broken down) or if the application of host country law is undesirable (for example, if the death penalty were to apply). [9]

Under the existing discipline system:

This Bill relates to those less serious offences and aims to modernise and redesign the summary discipline system.

Financial implications

The Explanatory Memorandum states that the initial funding for these amendments has been identified and will be provided from current allocations. [10]

Key issues

Submissions to the Senate Standing Committee on Foreign Affairs, Defence and Trade

The Bill was referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade (the 2007 Committee) on 16 August 2007 with a reporting date of 5 September 2007. [11]

Eight written submissions were received by the Committee from the following:

Of these, submissions 1 to 6 fully support the Bill, on the grounds that its purpose is to put into effect the recommendations of the 2003 Committee.

Submission from the Office of the Director of Military Prosecutions

The submission from the Office of the Director of Military Prosecutions makes two comments being that:

Submission from the Law Council of Australia

The submission from the Law Council of Australia (the Law Council) relates to appeals from summary convictions. The Law Council noted that two distinct lines of authority have developed relating to appeal provisions in general criminal proceedings where matters arise while a trial is underway and the judge is required to make a ruling on a particular issue. These two lines of authority are:

1. that the prosecution should have no rights of appeal which can affect any ruling in favour of the accused at any stage: the most that can be done is that there be a criminal appeal reference which will clarify an issue of law (for future trials in different matters) but will not interfere with a final verdict in the case in which the reference is brought, and alternatively
2. that the prosecution be permitted to appeal interlocutory points and, indeed, to reverse a verdict of not guilty. This approach is favoured, for example, in the State of New South Wales by the terms of section 5F of the Criminal Appeal Act 1912 (NSW). [14]

There is nothing in the existing DFDA or the Bill which would provide for the second approach.

The Law Council submits that the recent Federal Court decision in Commonwealth of Australia v Westwood [2007] FCA 1282 (Westwood) demonstrates why such provisions are necessary. In that case, Justice Sackville ruled inadmissible a record of interview, without which the prosecution would not proceed. There was no right of appeal under any legislation.

According to the Law Council submission, in Westwood, the Court accepted it had jurisdiction to grant a declaration under section 39B of the Judiciary Act 1903 (Cwth), applying the observations of Brennan J in Sankey v Whitlam (1978) 142 CLR 1 that ’most exceptional’ circumstances would need to be shown before the Court would interfere in proceedings which were underway. However, Sackville J stated in Westwood, that it is almost impossible to conceive of a situation where there would be ‘most exceptional’ circumstances, within the meaning of this test. [15]

The Law Council states that it does not favour any amendment to the Bill which would allow any overturning of a verdict of not guilty. However, it does favour the introduction of provisions similar to those from section 5F of the Criminal Appeal Act (NSW) on the ground that they have the advantage of having been the subject of much appellate consideration and have a well settled meaning. [16]

The Law Council also noted that the members of the Australian Military Court will have had very limited experience in relation to the conduct of criminal trials. None of those currently appointed have held civilian judicial office before and some members may have had almost no criminal or litigation experience. That being the case the Law Council considers that it is appropriate that there be the right to bring interlocutory appeals to the Defence Force Discipline Appeal Tribunal which is composed of experienced judges of superior courts around Australia. [17]

Commonwealth of Australia v Westwood [18]

Background

The Westwood case relates to charges brought against a member of the ADF under the DFDA and so it is directly relevant to the contents of the Bill and the submissions by the Law Council.

Relevant law

The Registrar of Military Justice has power to convene a court martial and to appoint the members including a Judge Advocate under subsection 119(1) of the DFDA.

Subsections 134(1) and (2) of the DFDA provide that:

According to subsection 134(4), a ruling given by a Judge Advocate in accordance with subsection 134(1) is binding on the court martial.

At any time before an accused person is asked to plead at a trial by court martial, the accused may make any application he or she considers relevant in connection with the trial: paragraphs 141(1)(a)(v). Once the Judge Advocate is notified of an application the Judge Advocate must sit without members of the court for a hearing of the application: subsection 141(7).

What the Judge Advocate decided

In Westwood a court martial was convened by the Registrar of Military Justice to hear and determine two charges against a Lieutenant Colonel in the Australian Army. The charges related to the alleged loss of classified material giving rise to breaches of the DFDA. The Judge Advocate made an evidentiary ruling in accordance with the above sections of the DFDA that the record of interview with the accused was inadmissible on the grounds that the actions taken by the Senior Investigators who had obtained it, were not in accordance with any law of the Commonwealth.

What the Federal Court decided

An application was then made to the Federal Court for a declaration that the actions of the Senior Investigators were, in fact, in accordance with a law of the Commonwealth so that the evidence was admissible.

In contemplating whether to grant the declaration that was sought, the Federal Court carefully considered the opinion of the High Court in the earlier case of Sankey v Whitlam (1978) 142 CLR 1 as follows:

In Westwood, the Court did not consider that the circumstances were sufficiently ‘exceptional’ to grant the declaration that was sought.

In its written judgment, the Court commented on this Bill which was introduced into Parliament on the day after the date of the hearing, in the following terms:

Hearings by the Senate Standing Committee for Foreign Affairs, Defence and Trade

The 2007 Committee conducted hearings in person on 5 September 2007 at which the persons who had provided submissions numbered 1, 4, 7 and 8 had the opportunity to provide further comment.

The Law Council answered questions about its written submission and provided other comments about the proposed sections 146A [23] and 168B. [24] This digest makes further reference to those comments under the heading of ‘Main Provisions’. The spokesperson for the Law Council conceded that the failure to insert a provision into the Bill in the terms they had suggested would not be so serious that the Bill should not be passed.

The Bill provides for rulings such as the one made by the Judge Advocate in Westwood to be tested after the trial. This allows for the matters to be considered after the event with a view to creating precedent that can be followed in the future, whereas the Law Council favours the introduction of provisions which would allow for rulings to be appealed during the course of proceedings.

In Westwood the Court made it clear that allowing for an appeal on a ruling in mid trial can have the unfortunate effect of fragmenting proceedings. Given that many of the criticisms of military justice have related to inordinate delay in the trial process [25] it is doubtful that the introduction of such an additional amendment would be appropriate at this time. However it may be prudent for the ADF to place it on the agenda for consideration and policy development at some future time.

Main provisions

It is important to note that, at the time of preparing this Digest, some sections of the 2006 Amendment Act had not yet come into force. If the sections are not formally proclaimed by 1 October 2007, they will come into force on that date. [26]

In addition, the Bill has been prepared with eight schedules which are in topic order rather than in numeric order. This means that there are cross references in the earlier schedules to sections which make their first appearance in the later schedules.

Schedule 1 – election for trial by the Australian Military Court

The 2006 Amendment Act will create the Australian Military Court (the AMC). The AMC replaces the system of individually convened trials by Courts Martial or Defence Force magistrates. It also establishes the makeup of the AMC which will include a Chief Military Judge and two permanent military judges, a part-time reserve panel and appropriate paralegal support for it to function independently from the chain of command.

The ADF summary discipline system forms one part of the military discipline system which, taken as a whole, must provide the safeguards necessary to protect the interests of ADF members. Commanders use the summary discipline system on a daily basis. It is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. It must operate quickly, be as simple as possible and it must be capable of proper, fair and correct application by commanding officers. [27]

‘Summary Authorities’ have limited powers of punishment and are generally used to try less serious offences. [28] Section 3 of the DFDA defines ‘summary authority’ as:

The submission by the Inspector General – Australian Defence Force states that:

Item 2 of the Bill proposes to insert a new section 111B. The proposed section will require a ‘summary authority’ to give an accused person the opportunity to elect to have charges against them tried by the AMC. Where the charge relates to a schedule 1A offence, the opportunity to elect to have the charge tried by the AMC will only be available to certain specified ranks: [32] subsection 111B(2).

Item 1 of the Bill proposes to insert a new definition of ‘schedule 1A offence’ into subsection 3(1) of the DFDA. A schedule 1A offence is one of 14 specific offences under the DFDA including:

An accused person must be given the opportunity to obtain legal advice about the election if a legal officer is reasonably available [33] to give such advice: subsection 111B(3).

Under proposed subsection 111C(1) an accused person must make the election within 24 hours or within a longer period that the summary authority allows, but not exceeding 14 days. This conforms with the stated desire of the Acting Chief of the Defence Force that the summary discipline system be able to be applied expeditiously and as consistently as possible across the Australian Defence Force. [34]

If the accused person elects to have the charge tried by the AMC, the summary authority must refer the charge, and any other charges arising from the same circumstances to the Director of Military Prosecutions and inform the Registrar of Military Justice that the charge has been referred: proposed subsection 111C(3). Charges are linked for the purposes of this section to provide an accused person with the additional safeguard of having all charges considered by the Director of Military Prosecutions and dealt with at the same time. [35]

If the accused person elects not to have the charge tried by the AMC, or does not make the election within the time allowed, the summary authority will deal with and try the charge: proposed subsection 111C(5).

Under proposed subsection 111C(6), the accused person may withdraw the election at any time before a date is fixed for hearing by the AMC. In that case the Director of Military Prosecutions must inform the Registrar of Military Justice and refer the charge back to the summary authority who will deal with and try the charge: proposed subsection 111C(7).

Item 3 proposes to repeal the existing section 131 and insert a new section 131 which relates to a trial of a charge of a Schedule 1A offence by a summary authority who is either a superior summary authority or a commanding officer (but not a subordinate summary authority). Under proposed subsection 131(3), if it is considered that the evidence adduced during the trial is sufficient to support the charge, and if the accused person were convicted an elective punishment [36] would be imposed upon the person, then the summary authority must give the accused person the opportunity to elect to have the charge tried before the AMC, before making a finding in relation to the charge.

Under proposed section 131AA where the opportunity to elect has been given under the new section 131, the accused person must make the election within 24 hours or within a longer period that the summary authority allows, but not exceeding 14 days.

Proposed subsections 131AA(3) to (7) are in the same terms as subsections 111C(3) to (7) as outlined above.

Item 4 proposes to insert a new paragraph 132A(3)(c) which provides that where an accused person has made an election to have the charge tried under subsection 111C(1) or 131AA(1) by the AMC, then the charge will be heard by a Military Judge sitting alone.

Item 6 proposes to insert a new schedule 3 to the DFDA. Schedule 3 has three sections:

Schedule 2 – appeals to the Australian Military Court

Items 2 to 4 of Schedule 2 amend sections 115, 116 and 118 of the DFDA. It is important to note that these sections were also the subject of change by the 2006 Amendment Act and have not yet been proclaimed. Proposed changes to subsections 115(3) and (4) establish the AMC’s jurisdiction to hear and determine appeals from a decision of a summary authority.

The Chief Military Judge must nominate the Military Judge who is to try a charge referred to the AMC or to determine an appeal to the AMC. According to the Explanatory Memorandum, this reinforces that the determination of appeal is independent of the chain of command. [37]

Item 9 repeals the existing Part IX relating to review of a decision by a service tribunal and inserts a new Part IX about Appeals to the AMC.

Proposed section 160 inserts definitions which relate to the new Part IX. In particular ‘Part IV order’ is defined as a restitution order, a reparation order or an order made under subsection 75(1). [38]

Proposed sections 161 to 166 are about appeals which arise from a conviction.

Under proposed subsection 161(1) a person who has been convicted of a service offence by a summary authority may appeal to the AMC against either the conviction, the punishment imposed or a Part IV order that has been made. The person must specify the grounds of appeal and lodge them with the Registrar within the appropriate period: subsection 161(2). If the appeal is against a conviction the appropriate period is 14 days from the date of the conviction: paragraph 161(3)(a). If the appeal is against a punishment or a Part IV order, the appropriate period is 14 days from the date that the punishment or order took effect: paragraph 161(3)(b). The AMC may allow for a longer period: subparagraph 161(2)(b)(ii).

If the summary authority has reopened proceedings, the proposed subsections 161(4) and (5) allow it to complete those proceedings before the convicted person exercises their right to appeal. The convicted person then has 14 days in which to lodge the appeal.

Proposed sections 162 to 164 set out the circumstances in which the AMC must allow an appeal and quash a conviction by a summary authority where:

Where the AMC does quash a conviction, it may:

Proposed section 167 is about appeals which arise from a punishment. The AMC may confirm, quash or vary the punishment. If the AMC varies a punishment, it takes effect as varied: subsection 167(3).

Proposed section 167A is about appeals which arise from the imposition of a Part IV order. As with proposed section 167, the AMC may confirm, quash or vary the order, and where the AMC varies the order, it takes effect as varied.

Sections 168 to 168E contain general provisions about the conduct of appeals.

Proposed section 168B provides that, in determining an appeal from a summary authority, the AMC must follow the same rules about evidence as a summary authority. Those rules are set out in proposed section 146A. Essentially both the summary authority at first instance and the AMC on appeal:

The Explanatory Memorandum states that the reason for this process is to ensure that an appeal is based on the same evidentiary basis that was used at a summary trial. [39]

Mr Paul Willee QC made comments to the 2007 Committee in relation to this proposed section at the public hearings of 5 September 2007, making clear that the comments should be attributed to him personally rather than the Law Council. [40] He expressed concern that a right of appeal does not provide a protection for an accused person where the appeals body is bound by the same rules of evidence as the original decision maker. It may be that the decision could not be set aside on appeal because the summary authority was entitled to come to the decision that it had. [41]

Neil Rees argues in relation to ‘court substitute tribunals’ that:

Even though he directs his comments to ‘court substitute tribunals’ they are analogous to the terms of the Bill. That is, the fact that the summary authority in considering the charges against an accused person, and the AMC in considering an appeal from the same circumstances, are not bound by the rules of evidence does not mean that they will not apply them. Under section 188AR of the 2006 Amendment Act, the AMC is staffed by, amongst other things, military judges who have been enrolled as legal practitioners for not less than 5 years. This creates an expectation that an appeal conducted by the AMC would be conducted in the manner expected of an officer of the Court.

Proposed section 168 provides that where the appeal hearing is conducted in Australia the appellant person may be represented by a member of the Defence Force or a legal practitioner. Where the appeal is conducted outside Australia the appellant may, in addition, choose to be represented by a person qualified to practise in the courts of that place. The AMC must, to the extent that the exigencies of service permit, cause the convicted person to be afforded the opportunity to be represented at the appeal, and to be advised before the appeal, by a legal officer: proposed subsection 168(2).

Proposed section 168A provides that the AMC may determine an appeal by holding a hearing or by considering the documents or other material provided to it. There is no requirement to hold a hearing if it appears that the issues can be determined in the absence of the parties. The Explanatory Memorandum states that:

According to proposed section 168E the AMC may use video and audio links in the hearing of appeals as for conducting trials. The relevant provisions are contained in the 2006 Amendment Act which will come into force on 1 October 2007.

Part 2 of Schedule 2 contains consequential amendments to the DFDA to reflect the new appeals system. For example proposed section 172A provides that the operation of a restitution order or a reparation order made by a ‘summary authority’ is suspended until the appeal is determined or abandoned. Similarly, the proposed subsection 176(1) provides that where a punishment is imposed by a ‘summary authority’, it must not be carried out pending the determination of the appeal. The Explanatory Memorandum states that this will ensure that a person is not disadvantaged by having to serve any punishment pending the determination of their appeal which may find the original conviction and punishment were unwarranted. [44]

Schedule 3 – evidence in summary proceedings

Schedule 3 sets out the rules of evidence to be followed in a trial by a summary authority and in a trial by the AMC of a summary matter.

The amendments to section 146 set out the rules of evidence for a trial by the AMC.

These rules are different from those which are contained in proposed section 146A which relate to a trial by a summary authority. The rules in proposed section 146A are the same as in proposed section 168B and provide that formal rules of evidence need not be followed.

As already stated, Mr Paul Willee QC made comments to the 2007 Committee in relation to this proposed section at the public hearings of 5 September 2007, making clear that the comments should be attributed to him personally rather than the Law Council. His concerns were, essentially, that the removal of the requirement that the summary authority must apply the rules of evidence would be a backward step which would return the ADF to an era when summary authorities acted with caprice and there was a pervasive sense that the outcome of summary proceedings was predetermined. [45]

He acknowledged that review and appeal procedures are a protection to an accused person but questioned why a person should be forced through the review and appeal process when it was preferable to make the correct decision at first instance. [46]

The Explanatory Memorandum states that these changes create simplified rules of evidence which are based on the Canadian Forces summary discipline system. [47] In addition

Item 10 revises section 149 which provides for the making of Summary Authority Rules so that they are made by the Chief Military Judge. The effect of proposed section 146A is that a summary authority must comply with the summary authority rules in any proceedings which it conducts. The Summary Authority Rules will be legislative instruments as defined by the Legislative Instruments Act 2003 and may be disallowed by the Parliament. Under item 9 existing section 147 is repealed and the proposed section 147 requires that the AMC take judicial notice of all matters within the general service knowledge of the Court and where applicable, the jury.

Schedule 4 – review of summary proceedings

Schedule 4 inserts a new Part VIIIA into the DFDA and is about formal review of the proceedings of a summary authority which have resulted in conviction of a person for a service offence: proposed section 150A.

Review is undertaken in respect of technical errors related to the awarding of punishments and orders, for example where the imposition of a punishment is beyond the power of the summary authority. In the case of certain more severe punishments, an additional safeguard will apply through the continuation of the requirement for them to be approved by a reviewing authority before they take effect. [49]

Proposed section 150 introduces two new definitions as follows:

Proposed section 151 is about reviewing the proceedings of a subordinate summary authority and sets out the following process:

Proposed subsections 151(7) to (9) set out who must notify the parties of the outcome of the review.

Proposed section 152 is about review of the proceedings of a superior summary authority or a commanding officer and sets out the following process:

Proposed sections 153 and 153A are about the circumstances in which proceedings are reopened. If a ‘reviewing authority’ or ‘competent reviewing authority’ concludes that the summary authority imposed a punishment or made an order against the convicted person that it had no power to make, then they can require the ‘summary authority’ to reopen the proceedings. In that case the ‘summary authority’ must:

The exception to this is if the convicted person has lodged an appeal to the AMC. If there is no appeal lodged prior to the reopening, the convicted person has a right of appeal to the AMC after the reopening process has been finalised: proposed section 154. In addition, the reviewing authority may recommend to the convicted person that they lodge an appeal to the AMC in the circumstances specified in proposed section 155. In those circumstances the reviewing authority must tell the convicted person in writing of the reasons for that recommendation and provide a copy of their notice to the convicted person’s commanding officer.

Proposed sections 156 to 159 deals with review of certain punishments that are subject to approval by a reviewing authority. If a ‘summary authority’ imposes a punishment specified in section 172(2) or an order under Part IV, the reviewing authority must approve or not approve the punishment or order and the date from which it must take effect.

Proposed subsection 159(3) contains a protection for a convicted person so that a reviewing authority cannot impose a punishment or make an order under Part IV that is more severe than that which was originally imposed by the summary authority.

Items 3 to 20 of Schedule 4 make consequential amendments to various provisions of the DFDA as a result of the new review system and to reflect new definitions and phrases such as ‘review’ and ‘reviewing authority’.

In addition to his earlier comments to the 2007 Committee at the public hearings of 5 September 2007, Mr Paul Willee QC expressed his concern about the qualifications of reviewing authorities. He advised the 2007 Committee that there had formerly, under section 154 of the DFDA been a requirement that a reviewing authority not commence a review without first obtaining a report a legal officer who was appointed by the Chief of the Defence force on the recommendation of the Judge Advocate General. [50] He was concerned that there is no person of that type referred to in the proposed Schedule 4. Mr Willee stated that he was concerned that those persons who were called upon to give advice to reviewing authorities under the proposed legislation would be lacking in military trials experience and that this would be a retrospective step. [51]

By way of response Rear Admiral Bonser, Head of the Military Justice Implementation Team, Department of Defence stated:

It should be noted that under proposed section 151, the reviewing authority may obtain advice from a legal officer whereas under proposed section 152, the competent reviewing authority must obtain advice from a legal officer.

Schedule 5 – offences and punishments

Items 1 to 11 of Schedule 5 amend existing section 59 which currently relates to dealing in or possession of narcotic goods by members of the Australian Defence Force either within or outside of Australia. Proposed subsection 59(9) provides for three definitions as follows:

According to the Explanatory Memorandum these changes have been made to more properly reflect contemporary illicit drugs use. [53] In particular the limited quantity and range of drugs specified in the existing section 59 is insufficient to support enforcement and application of the Australian Defence Force’s ‘no drug’ policy.

Items 12 to 17 amend existing section 60. In its current form it provides that a defence member is guilty of an offence if the member engages in conduct that is likely to prejudice the discipline of, or bring discredit on the Defence Force. The maximum punishment is imprisonment for three months. Item 13 proposes to insert a new subsection 60(1A) which will add that the offence can also be committed by omitting to do something. Item 17 provides for a defence of ‘reasonable excuse’ for omitting to perform the relevant act.

It is important to note that according to the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, a phrase such as ‘without reasonable excuse’ should not be used in the context of Commonwealth offences because the phrase is too open-ended. Generally, the only circumstance in which the use of a ‘reasonable excuse’ defence can be justified is if the potential for innocuous conduct being caught by the offence is so great that it is not practical to design specific defences. In such cases there will be real questions about whether the width of the offence is too broad. [54]

In addition, subsection 60(1) and the proposed subsection 60(1A) are strict liability offences. This means that it is not necessary to prove that there has been any mental element such as intent in order to establish guilt. The Explanatory Memorandum states that a trade off for a strict liability offence would normally be to reduce the maximum penalty for the offence, and that criminal law policy considerations provide that for a strict liability offence, the maximum punishment should be limited to a substantial fine. [55]

However in this Bill no such trade off has occurred. As the purpose and jurisdiction of the offence is limited to members of the ADF, the existing maximum punishment of 3 months imprisonment has been retained. It is noted that the Office of the Director of Military Prosecutions has supported these amendments. [56]

Under the current system, sentences of detention must either be served or suspended in full. Items 19 to 38 amend various provisions in the DFDA so that a service tribunal can suspend part of a punishment in addition to full suspension. The Explanatory Memorandum states that this is consistent with the options available to civilian courts and with section 79 of the DFDA which allows for part suspension of fines. [57]

Schedule 6 – minor disciplinary infringements

Schedule 6 amends Part IXA of the DFDA.

Item 1 inserts the definition of ‘prescribed defence member’, being:

Existing section 169B provides that a commanding officer may, in writing, appoint officers or warrant officers to be ‘discipline officers’. Item 3 inserts proposed subsection 169C(2) which provides that ‘discipline officers’ have the jurisdiction to deal with discipline infringements by certain classes of specified officers.

Items 4 to 9 makes consequential amendments to various provisions of Part IXA to reflect the new definition of ‘prescribed defence member’.

Item 10 inserts proposed subsection 169F(1A). It limits the punishments which a discipline officer can give to a prescribed defence member to

Item 11 inserts a new section 169FB which is about the consequences of punishments. The proposed section allows the Chief of the Defence Force or a service chief to make rules that apply to the punishments imposed by a discipline officer. These rules are legislative instruments under the Legislative Instruments Act 2003 and as such may be disallowed by the Parliament. Under proposed subsection 169FB(2) the commanding officer of a defence member who is subject to a punishment for a disciplinary infringement may moderate the consequences of the punishment in a way that they think is appropriate.

Item 14 inserts new section 169GA to require a discipline officer to provide a report to their commanding officer in relation to the nature and extent of any punishment imposed. The Explanatory Memorandum states that the intention of the amendment is to provide a safeguard through legislated oversight of the discipline officer scheme. [59]

Schedule 7 – other amendments

Part 1 of Schedule 7 relates to the powers of the Director of Military Prosecutions.

Items 1-3 clarify the powers of the Director of Military Prosecutions including:

Brigadier McDade advised the Committee of her approval of these amendments which will enhance the ability of the Office of the Director of Military Prosecutions to perform its statutory functions. [61]

Items 5 – 14 amend the DFDAA. In particular items 7 to 12 insert new Division 1A in Part III to enable the Director of Military Prosecutions to seek a determination from the Defence Force Discipline Appeal Tribunal on a question of law that arose in a trial before the AMC. See the earlier comments under the heading ‘Key Issues’.

Part 2 of Schedule 7 relates to the powers of the Provost Marshal Australian Defence Force. Items 15 – 17 amend the DFDA so that the Provost Marshal Australian Defence Force, defined in proposed subsection 3(1), can refer a serious service offence to the Director of Military Prosecutions in appropriate circumstances. The Explanatory Memorandum states that this provision will allow more serious matters to be referred directly to the Director of Military Prosecutions and trial before the AMC without the requirement for unnecessary proceedings before a summary authority. [62]

Part 3 of Schedule 7 amends the DFDA to expand the jurisdiction of superior summary authorities. Under proposed amendments a superior summary authority will cover ranks up to rear admiral, major-general or air vice-marshal: paragraph 106(a).

Item 22 inserts a new section 108A. Under the proposed section a ‘summary authority’ is disqualified from trying a charge of a service offence against a person if the ‘summary authority’ has been involved in the investigation of the offence, issuing a warrant for the arrest of the person or charging the person with the offence. If any of those circumstances arise the ‘summary authority’ must refer the charge to another summary authority which is not similarly disqualified from hearing the charge: proposed subsection 108A(2).

Existing subsection 141(1) provides that at any time before an accused person is asked to plead at a trial by a service tribunal the accused person can, according to paragraph (b), enter an objection to the charge on any ground. Item 23 proposes to insert a new subparagraph (vi) which will provide that one of the reasons for objecting is where a summary authority has failed to disqualify itself in accordance with proposed subsection 108A(1).

Part 4 of Schedule 7 is about trials by summary authorities. Item 25 inserts proposed section 129 which provides that the trial of a charge of a service offence by a summary authority must be commenced within the period of 3 months after the person is charged or such longer period if the exigencies of the service do not allow for this time frame. Where the trial cannot be commenced within 3 months the summary authority must refer the charge to the Director of Military Prosecutions.

Item 26 substitutes a new paragraph 130(1)(a) for the existing paragraph. The new paragraph provides that where an accused person is present, pleads guilty and is found to understand the implications of their plea, the person will be convicted. In addition it provides that, subject to subsection 139(4) an accused person may be absent and plead guilty to a charge in writing. In that case, the accused person will be convicted.

Item 28 inserts proposed section 131B which provides that where a person has been convicted by a summary authority of a service offence the conviction has effect for service purposes only and the person is not required to disclose to any person the fact of the conviction.

Items 31 to 34 make consequential amendments to the DFDA to reflect the functions of the Registrar of the AMC.

Item 36 provides for new subsections 171(1B) and (1C). These subsections give the AMC the authority to impose a punishment of dismissal which will take effect within a period of 30 days. This is appropriate where a person has been found guilty and dismissed whilst in an operational theatre. [63]

Item 37 amends the Defence Act to provide for the rights and duties of legal officers. Proposed section 122B provides that a legal officer in the ADF will discharge their professional rights, duties and obligations in accordance with the generally accepted rights, duties and obligations applying to legal practitioners. The purpose of this new section is to ensure that ADF legal officers are not subject to inappropriate command direction in the exercise of their professional capacity as ADF legal officers. [64]

Schedule 8 – application, saving and transitional provisions

The transitional provisions in items 1 -7 of Schedule 8 operate so that:

under the ‘old law’ will continue to be dealt with under that law until completed.

Conclusion

There have been a number of formal inquiries since 1997 into the administration of justice within the ADF. Many made suggestions for improvements to the military justice system. Some of those suggestions were acted upon and some were not. By the time the 2003 Committee published its report in June 2005, it acknowledged that ‘for 10 years now, there have been increasing calls from servicemen and women and their families that all is not well in the military justice system.’ [65]

That report contains significant criticisms of the existing disciplinary system as follows:

The 2003 Committee made 40 recommendations for change. 30 of the 40 were accepted in whole or in part by the Government. This Bill is a direct response to those recommendations, particularly recommendation 23 and to the above comments about the need for reform of summary proceedings. The Bill contains core initiatives such as:

The 2003 Committee stated in its report of 2005 that it ‘believes that the military justice system in its current form clearly needs a comprehensive, ground up reform’. [67] This Bill delivers that ‘ground up’ reform.

On 16 August 2007, the Senate referred the provisions of the Bill to the 2007 Committee for inquiry and report.

As already stated there was some criticism to the 2007 Committee by way of written and oral submissions by the Law Council of Australia about the absence in the Bill of a right for the prosecution to appeal interlocutory points in an appeal from a summary conviction. In addition, Mr Willee on his own behalf made oral submissions, critical of the simplification of the rules of evidence in summary trials.

By contrast, the Bill has been fully supported by each of the arms of the ADF. Written and oral submissions endorsed the Bill on the grounds that its terms have been drafted after considerable consultation with those parties who will be most affected by it.

The 2007 Committee report was published on 10 September 2007. Whilst its final recommendation was that the Bill be passed, the 2007 Committee also recommended that:

The Bill delivers on the recommendations of the 2003 Committee report. It creates a new system with many built in safeguards. There is a system of review and appeal which, on its face, should deliver outcomes that are fair, informal and timely. However, the simplification of the rules of evidence is an issue. The transcript of the hearings by the 2007 Committee shows the following interaction between one of the members of the 2007 Committee and Mr Geoff Early, Inspector General, Australian Defence Force, Department of Defence which cuts to the heart of the matter:

The ADF has asked for simpler rules of evidence and they have been delivered, despite the concerns of the Law Council and the 2007 Committee. However, a system is only as good as those persons who administer it. The Bill proposes legislative change. It is now up to the ADF to do its part.

Implementation of the Bill will require cultural change. The simplification of the rules of evidence does not mean that no evidence is required, rather that evidence will be weighed and analysed and even disregarded if it is unreliable. It will be up the ADF to put in place sufficient training to ensure that those who operate as a summary authority understand that.

The Bill does not contain any provisions which would require a review of the amendments within a specified time frame. The Bill puts in place many of broad changes recommended by the 2003 Committee. Given the scope of those changes, a timely review would be prudent.

Endnotes