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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Defence Force Discipline Act 1982
to:
• expand the operation of the disciplinary infringement scheme in
dealing with minor breaches of military discipline;
• remove the subordinate summary authority, to reduce the number of
summary authority levels; and
• introduce several new service offences relating to failure to
perform duty or carry out activity, cyber-bullying, and failure
to notify change
in circumstances concerning the receipt of a benefit or allowance
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Portfolio
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Defence
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Introduced
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House of Representatives, 12 August 2021
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Rights
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Freedom of expression
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2.55 The committee requested a response from the minister in relation to the bill in Report 10 of 2021.[2]
2.56 The bill proposes to make a number of new service offences that would apply to Australian Defence Force (ADF) personnel. This includes making it an offence for a defence member to use a social media service or relevant electronic service (such as email, text or chat messages), 'in a way that a reasonable person would regard as offensive or as threatening, intimidating, harassing or humiliating another person'. The maximum punishment would be imprisonment for two years.[3]
2.57 In addition, if a defence member is convicted of this offence a service tribunal can make an order that the member take reasonable action to remove, retract, recover, delete or destroy the material.[4] A failure to comply with such an order would also be an offence punishable by up to two years imprisonment.[5]
2.58 Making it a service offence for an ADF member to use social media, or send text messages or emails, that might offend a reasonable person, engages and limits the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual's choice.[6] The right to freedom of expression protects all forms of expression and the means of their dissemination, including spoken, written and sign language and non-verbal expression, such as images and objects of art.[7] This right embraces expression that may be regarded as deeply offensive.[8] This right may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.59 Maintaining or enforcing military service discipline would be likely to constitute a legitimate objective for the purposes of international human rights law, and having an enforceable service cyber-bullying offence may be rationally connected to that objective. The key issue as to whether this limitation can be justified is whether the limitation is proportionate to the objective being sought.
2.60 In order to assess the proportionality of this measure with the right to freedom of expression, further information is required, and in particular:
(a) what type of use is likely to be considered 'offensive' for the purposes of proposed section 48A;
(b) is it intended that the term 'offensive' will be considered together with the terms 'threatening, intimidating, harassing or humiliating', or is it intended to have a stand-alone meaning, and, if so, is it intended that this would capture uses that a reasonable person would merely find offensive, without necessarily any profound and serious effects;
(c) could this service offence apply to ADF members in their personal capacity where the offensive use has no, or little, link to their ADF service;
(d) what safeguards are in place to ensure the proposed service offence does not unduly restrict an ADF member's freedom of expression; and
(e) what other, less rights restrictive approaches would be available to achieve the stated objective. In this respect, further information is required as to the approach currently taken to deal with cyber-bullying in the ADF and why this has proved not to be effective to achieve the objective of maintaining military discipline.
2.61 The committee considered that this measure engages and limits the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, including expression that may be regarded as offensive. The committee considered that the measure sought to achieve the legitimate objective of maintaining or enforcing military service discipline, and the proposed offence may be effective to achieve this. However, questions remained as to whether the measure is proportionate, and as such the committee sought the minister's advice as to the matters set out at paragraph [2.60].
2.62 The full initial analysis is set out in Report 10 of 2021.
2.63 The minister advised:
To assist the Committee in forming a view on the human rights implications of the proposed s.48A cyber-bullying service offence, namely the proportionality of this provision with Defence members right to freedom of expression, the following additional information is provided in support of responses to the specific matters set out in paragraph 1.31 of the Committee's Report. This additional information may assist the Committee's consideration of the purpose and unique nature of the Defence Force Discipline Act 1982 (DFDA) to maintain and enforce the high level of discipline required by the Australian Defence Force to ensure operational readiness and effectiveness and the requirement for proscribing cyber-bullying conduct as a service offence. The purpose of the DFDA is distinct from the criminal law.
The objective of the proposed s.48A service offence (and complementary proposed s.84A Removal order and s.48B Failure to comply with a removal order) is to prevent members of the Defence Force from engaging in cyber-bully [sic] by providing command with an effective and efficient means to deal with cyber-bullying via social media that can adversely impact the good order and discipline of the Defence Force. Collectively, the cyber-bullying offences have a rational connection to the maintenance and enforcement of good order and discipline in the Australian Defence Force, which the High Court has consistently held as the purpose of the discipline system under the DFDA. It will also send a strong message to the 'predominately digitally literate young adult demography' of the Australian Defence Force (source: Inspector-General of the Australian Defence Force submission to the Senate Foreign Affairs, Defence and Trade Legislation Committee) that cyber-bullying of any form is not tolerated and that such behaviour is not consistent with the Defence Value of Respect.
Proportionality
The High Court in McCloy v State of NSW [2015] HCA 34 established a 'proportionality' test which deals with a legislative measure that may restrict a freedom, and is addressed below.
Suitability: is there a rational connection to the legitimate purpose of the provision? Yes, the s.48A 'offensive' cyber-bullying offence is directly related to the purpose of the provision which is to prevent members of the Defence Force from engaging in cyber-bully [sic] by providing command with an effective and efficient means to deal with cyber-bullying by social media that can adversely impact the good order and discipline of the Defence Force.
Necessary: is there an obvious or compelling alternative reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom? No there is not. Administrative sanctions (see below response to question (e)) lack an immediate and public deterrent effect for maintaining or enforcing service discipline nor preventing the misuse of social media as proscribed by s.48A.
Adequate in its balance. Only defined aspects of the freedom of expression will be limited. The limited aspects are necessary and reasonable within a disciplined Defence Force. Consider for example a social media post that made 'offensive' comments (applying the reasonable person test), concerning the commanding officer of a unit - the social media post being visible to the commanding officer's unit. The importance of the restrictive measure by application of s.48A will enable the maintenance and enforcement of discipline where a reasonable person (service tribunal) determines that the use of social media etc. is regarded as 'offensive'. S.48A does not restrict the freedom of expression in all circumstances, but for social media use that is reasonably regarded in the circumstances as 'offensive'. An interpretive provision dealing with 'offensive' modelled on s.8 of the Online Safety Act 2021 and s.473.4 of the Criminal Code will be included.
The scope of s.48A extends to cyber-bullying by a Defence member to another person, meaning that cyber-bullying can include any person. To the extent that such behaviour could amount to conduct undertaken after hours by a Defence member or beyond the scope of defence duty, it is appropriate and relevant to note what McHugh J said in Re Aird; ex parte Alpert (with whom Gleeson CJ, Gummow and Hayne JJ agreed), a case which involved a member of the Army who was off-duty on recreational leave in another country who challenged his prosecution before a superior service tribunal:
'A soldier who...undermines the discipline and morale of his army...does so whether he is on active service or recreation leave.'[10]
In the present context, the reference to the offence can be readily substituted with the proposed cyber-bullying offence.
I am satisfied, and the Committee can be satisfied that s.48A and its element of 'offensive' social media use, meets the criteria of proportionality test as laid down by the High Court in McCloy, and as a consequence does not exceed the implied limitation on freedom of speech.
Additionally I consider that the Full Court of the Federal Court decision in Chief of the Defence Force v Gaynor (2017) 344 ALR 317 suggests that the courts recognise that reasonable restrictions can be placed on a Defence member's use of social media where that use would compromise their capacity to be a member of, undermine the reputation of, the Australian Defence Force.
Furthermore the decision of Comcare v Banerji [2019] HCA 23; (2019) 372 ALR 42 suggests that the High Court itself is not unsympathetic to constraints on social media communications where that is reasonably necessary to protect the integrity and good reputation of public institutions such as the Australian Defence Force.
However, noting the issues raised by the Committee I believe the Bill would benefit from a suitable interpretive provision in relation to offensive behaviour in a similar manner to its depiction in the Online Safety Act 2021 s.8 and the Criminal Code s.473.4.
The DFDA
The DFDA provides a system of military discipline that applies to members of the Defence Force at all times, whether they are deployed on operations or exercises within Australia or overseas, in times of peace, conflict and war. The purpose of the DFDA is to enable the Chief of the Defence Force, through delegated command authorities, to enforce and maintain discipline within the Defence Force. The legitimacy of legislation for the purposes of military discipline has been consistently upheld by the High Court of Australia.[11]
Disciplinary breaches under the DFDA. The DFDA regulates three kinds of disciplinary breaches:
a. Disciplinary infringements: examples include absence without leave, absence from duty, disobeying a lawful command. These are minor forms of disciplinary breaches.
b. Service offences: examples include assaulting a superior officer, theft of service property, alteration I falsification of service documents, conduct relating to operations against an enemy force. Some service offences have elements that are the same or similar to a civilian offence.
c. Territory offences: these are service offences applicable by virtue of the incorporation of the law of the Australian Capital Territory and certain Commonwealth law into the DFDA through s.61. With some exceptions, generally only superior tribunals may deal with these offences.
Service tribunals. An offence under the proposed s.48A may only be prosecuted before a Summary Authority (being either a Commanding Officer or Superior Summary Authority) or a superior service tribunal (being either a General or Restricted Court Martial or a Defence Force magistrate).
Breaches of military discipline. The DFDA must deal with a wide range of breaches of military discipline at various levels or ranges of seriousness and in a wide variety of circumstances, not just those that cross the criminal threshold and in a benign domestic setting. It must be effective when it is most needed, when units are deployed on operations and in situations of conflict. As far as possible breaches must be dealt with by the appropriate commander in the theatre of operations.
Punishments. The DFDA provides for a number of punishments (14 in total) that may be imposed by a service tribunal ranging from receiving a reprimand to imprisonment for life. This range of punishments is subject to limitations dependent upon the service tribunal determining the matter and the rank of the convicted Defence member.
A Summary Authority cannot impose a punishment of imprisonment. Examples of the punishments that a Summary Authority may impose include: extra duties, stoppage of leave, a fine (up to specified limits, normally 7 days pay), forfeiture of seniority and for members below non‑commissioned rank, a period of detention (see Schedule 2 Part 2 of the Bill).
A Restricted Court Martial and Defence Force magistrate cannot impose a punishment of imprisonment greater than 6 months. Only a General Court Martial can impose a punishment of imprisonment greater than 6 months.
While the maximum punishment for the proposed s.48A is 2 years imprisonment, only a General Court Martial can impose such a punishment and this would be for the most serious of matters. The majority of prosecutions against the proposed s.48A would occur before a Summary Authority who cannot impose a punishment of imprisonment as noted above.
As a service offence the proposed s.48A is able to be applied in a wide range of circumstances as there is a requirement to allow offending to be dealt with at an appropriate level while sending a clear message that cyber-bullying is treated seriously. Offences attracting greater than 2 years maximum imprisonment are prescribed offences and cannot be dealt with by a Summary Authority. Alignment with the maximum punishment available as a criminal matter is available as a Territory Offence under DFDA s.61, such as s.474.17 Misuse of a carriage service, but this can only be dealt with by a superior service tribunal.
It is also important to note that in determining what punishment to impose and / or order to make on a convicted Defence member a service tribunal must have regard to the principles of sentencing applied by the civil courts, from time to time and the need to maintain discipline in the Defence Force (see DFDA s.70). A prosecution before a civilian court following conviction and punishment, does not have regard to the need to maintain discipline in the Defence Force.
Protections - review and appeal. All proceedings before a service tribunal resulting in a conviction are subject to an automatic review by command (a Reviewing Authority (a senior ranking member of the Defence Force appointed by the Chief of the Defence Force or a Service Chief)) which is supported by a report on the proceedings provided by a legal officer (see DFDA ss.152 and 154). A Reviewing Authority is bound by an opinion on a question of law in the legal report (see DFDA s.154(2)). The Reviewing Authority may refer the issue on a question of law to the Judge Advocate General for an opinion (see DFDA s.154(3)).
A Reviewing Authority has the power to quash a conviction on specified grounds and, in undertaking their review, may take into account credible and admissible evidence that was not reasonably available during the proceedings (see DFDA s.158); order a new trial (see DFDA s.160); substitute a conviction for an alternative offence to the [original] service offence (see DFDA s.161); and quash a punishment and I or revoke an order and substitute the punishment and / or order with a different, but no more severe, punishment and I or order (see DFDA s.162).
Defence members convicted either before a Summary Authority or a superior service tribunal have the right to petition a Reviewing Authority for a review of their conviction (see DFDA s.153) in addition to the 'automatic' review mentioned above. They also may petition the Chief of the Defence Force or a Service Chief for a 'further' review of their conviction following either the 'automatic' review or review on petition to a Reviewing Authority (see DFDA s.155).
Defence members convicted before a superior service tribunal may appeal to the Defence Force Discipline Appeal Tribunal (see Defence Force Discipline Appeals Act 1955 s.20) or to the Federal or High Court.
Oversight of military discipline. In addition to the 'protections' mentioned above, the operation of the military discipline system is overseen by the Judge Advocate General and the Inspector-General of the Australian Defence Force who both provide annual reports to Parliament on the operation of the DFDA and military justice as a whole. The Inspector‑General conducts regular 'military justice audits' which include surveys of Defence members on issues relating to the application of discipline. The results of those surveys are provided to senior command of the Defence Force and published in Annual Reports.
Policy and procedural guidance. To support the administration of discipline as provided by the DFDA, Defence has comprehensive policy guidance and procedural forms.
The purpose of the policy guidance is to provide procedural and practical guidance to those members of the Defence Force involved in the disciplinary process from the initial investigation of a service offence, determination of whether or not to charge a Defence member with a service offence, determination of whether a charge should be referred to a Summary Authority for prosecution or to the Director of Military Prosecutions for consideration of prosecution before a superior tribunal, and guidance for Summary Authorities trying a service offence.
The policy guidance includes:
a. Commanders' Guide to Discipline - issued by the Chief of the Defence Force.
b. Summary Discipline Manual - issued by the Vice Chief of the Defence Force.
Specific questions raised by the Committee
(a) what type of use is likely to be considered 'offensive' for the purposes of proposed section 48A;
The purpose of the proposed s.48A cyber-bullying offence is to prevent defence members from using a social media service or relevant electronic service (as defined within s.48A(2)), in a way that a reasonable person would regard as offensive or as threatening, intimidating, harassing or humiliating another person. As presently drafted, there is no explanatory provision within the Bill or the Act regarding the meaning of 'offensive' generally, or specifically in aid of s.48A.
I recognise that one of the benefits of the proposed s.48A cyber-bullying offence is that there are many and varied circumstances of social media etc. use that s.48A will deal with. On one level, s.48A as drafted, does not require further detail or explanation. But overall, on balance and having regard to the questions raised by the Committee, I believe all Defence members should be fully aware of what is to be considered 'offensive' social media use, contrary to s.48A.
In response to the Committee's questions, I consider that the Bill would benefit by including interpretative guidance of the use of a social media service etc. in a way that a reasonable person would regard as "offensive". The 'reasonable person' should be I believe be guided in the legislation in making this assessment. This guidance would be achieved by including within the Bill an interpretive provision along similar lines to s.8 of the Online Safety Act 2021 and s.473.4 of the Criminal Code (which deals with 'offensive' use of social media and telecommunication services respectively), and which could be suitability modified for inclusion within the DFDA to address the meaning of 'offensive' social media etc. use for the purpose of s.48A. This will require further drafting instructions to the Office of Parliamentary Counsel (OPC), a revised Explanatory Memorandum and Additional Legislative Approval process. I have instructed Defence to proceed with instructions to OPC for an interpretive clause for inclusion within s.48A as follows:
48A (xx) Determining whether social media etc. use is offensive
(1) The matters to be taken into account in deciding for the purposes of this Part whether a reasonable person would regard a particular use of a social media service or relevant electronic service, as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material; and
(c) the general character of the material (including whether it is of a medical, legal or scientific character).
Appropriate policy guidance will be provided in the Summary Discipline Manual to assist an 'authorized member' to determine if there are reasonable grounds for believing that a Defence member has committed the service offence of 'cyber-bullying' and cause the person to be charged.
This policy guidance will also assist a Summary Authority trying a charge against s.48A.
At all times legal advice, provided by Australian Defence Force legal officers is available to assist those involved in either the investigation or prosecution of a cyber-bullying matter. This provision of legal advice also extends to an accused person.
(b) is it intended that the term 'offensive' will be considered together with the terms 'threatening, intimidating, harassing or humiliating', or is it intended to have a stand-alone meaning, and, if so, is it intended that this would capture uses that a reasonable person would merely find offensive, without necessarily any profound and serious effects;
The term 'offensive' is intended to stand-alone and capture social media use that a reasonable person would regard as offensive without the requirement of any 'profound or serious effects' (see proposed interpretive provision for s.48A above).
The maintenance and enforcement of discipline requires that Defence must be able to deal with cyber-bullying as defined by any of the elements within s.48A. This is essential to maintaining discipline, morale, protecting other Defence members and maintaining the reputation of Defence by upholding the Defence Value of Respect.
Defence must be able to deal with cyber-bullying on a number of levels. It is envisaged that the majority of matters would be for lower level offending and be tried before a Summary Authority where appropriate. More serious offending or complicated matters would be referred to the Director of Military Prosecutions for determination of prosecution before a superior tribunal either under proposed s.48A or as a Territory offence (i.e., relevant Criminal Code offence) or for referral to civilian authorities as is the practice for other service offences of a serious nature.
(c) could this service offence apply to ADF members in their personal capacity where the offensive use has no, or little, link to their ADF service;
Yes. It is possible for members of the Australian Defence Force to be prosecuted for a service offence (including a Territory offence) committed in circumstances which have little link to their service in the Defence Force (see Private R v Cowen [2020] HCA 31), other than the offence being committed as a Defence member.
Conduct of the kind proscribed by the proposed offence impacts upon the discipline of the Defence Force regardless of the identity or status of the victim or whether it occurs within or outside regular hours of duty. Australian Defence Force personnel are required to maintain a high standard of personal behaviour at all times and conduct of this kind is inimical to a disciplined force.
(d) what safeguards are in place to ensure the proposed service offence does not unduly restrict an ADF member's freedom of expression; and
A Defence member's freedom of expression is not unduly restricted by the proposed s.48A, but will be restricted only to the extent that a reasonable person in the circumstances would regard the member's social media use as 'offensive or as threatening, intimidating, harassing or humiliating another person'.
(e) what other, less rights restrictive approaches would be available to achieve the stated objective. In this respect, further information is required as to the approach currently taken to deal with cyber-bullying in the ADF and why this has proved not to be effective to achieve the objective of maintaining military discipline.
Defence has in place a Media and Communication Policy including Personal/Private Social Media Policy which places the following restrictions upon members of the Defence Force:
7.11 Private social media profiles of Defence personnel must not use any Defence branding, logo, official title, position or organisational grouping connected to or representing Defence. The exception is Linked In, where personnel are permitted to reflect their role within Defence, provided no operational or classified information is contained in the profile.
7.12 If a profile appears to be representing Defence, and is administered by Defence personnel, all content and activity will be deemed departmental public comment and that individual will be accountable for compliance with the requirements of this policy.
7.13 Defence personnel using social media in a private capacity must not:
a. join or remain a member of a group, forum, site or discussion that is involved in or promotes behaviour that is exploitative, objectifying or derogatory or in any other way breaches any relevant legislation or Defence policies;
b. post any defamatory, vulgar, obscene, abusive, profane, threatening, racially or ethnically hateful or otherwise offensive or illegal information or material;
c. criticise the work or administration of the Department, Group or Service; and must professionally and impartially serve the government of the day;
d. forecast, announce or promote Defence activities that have not been disclosed previously in the public domain;
e. use imagery of Defence activities that is not cleared for public release or represents Defence negatively in the public domain; or
f. claim or appear to represent Defence as an official spokesperson.
Currently breaches of the policy may be dealt with by way of administrative action, which may include termination of the member's service in the Australian Defence Force pursuant to the relevant Defence regulation (see for example Chief of the Defence Force v Gaynor (2017) 344 ALR 317). Administrative action by a decision-maker does not address legislative requirements of DFDA s.70, which includes the need to maintain discipline in the Defence Force which follows a conviction for a service offence (such as the proposed s.48A) and consideration of punishment action, including specific and general deterrence (see DFDA Part IV).
The deterrent effect of being able to deal with breaches of military discipline swiftly under the provisions of the DFDA are not able to be achieved through administrative action, such as termination, formal warning or censure. While administrative action may be appropriate in certain circumstances, it is not an effective means of promptly addressing instances of cyber-bullying which may occur in operational environments such as overseas deployments or in close quarter environments such as on-board Navy ships.
I have enclosed a copy of the proposed Supplementary Memorandum addressing the issues raised in the Committee's Report.
2.64 The proposed service offence applies broadly to where a defence member uses a social media service or relevant electronic service in a way that a reasonable person would regard 'as offensive or as threatening, intimidating, harassing or humiliating another person'. While ‘threatening, intimidating, harassing or humiliating’ another person would appear to be limited to serious online abuse, the proposed service offence of using a service in a way that is 'offensive' to a reasonable person may be employed in relation to conduct with effects that range from slight to severe, and could capture a large range of uses that may not constitute cyber-bullying.
2.65 The minister has advised that there are many and varied circumstances of social media and other uses that this proposed service offence will deal with, and the term 'offensive' is intended to be stand-alone and capture social media use that a reasonable person would regard as offensive without the requirement of any 'profound or serious effects'. The minister has advised that the government plans to move amendments to the bill to include interpretative guidance as to what use a reasonable person would regard as ‘offensive’, along similar lines to that contained in the Online Safety Act 2021 (Online Safety Act) and the Criminal Code Act 1995 (Criminal Code). This guidance would provide that the matters to be taken into account in deciding whether a reasonable person would regard the use of a social media service or relevant electronic service to be offensive include ‘the standards of morality, decency and propriety generally accepted by reasonable adults’.
2.66 It is noted that the provisions in the Online Safety Act and the Criminal Code referenced by the minister apply in a different context to this proposed service offence. Section 473.4 of the Criminal Code applies a definition of what might be considered ‘offensive’ in relation only to a Part of the Criminal Code relating to depictions of sexual material, particularly that involving child abuse. It does not apply to the more general offence of using a postal or other service that reasonable persons would regard as menacing, harassing or offensive[12] (which has been held to require that the communication be likely to have a serious effect on the emotional well-being of who it is addressed to).[13] The Online Safety Act contains an interpretative clause of ‘offensive’ but this is in the context of the material being 'menacing, harassing or offensive', and with the added requirement that it is likely that the material was intended to have an effect of causing serious harm to a particular person.[14] In contrast, the proposed service offence would use this definition in a general context, such that it would prohibit the use of social media or other electronic services in a way that a reasonable person would consider to be contrary to the standards of morality, decency and propriety. This would appear to capture a potentially wide variety of uses, and as the minister advised, such uses need not have any profound or serious effects.
2.67 As stated in the initial analysis, the right to freedom of expression, to be meaningful, protects both popular and unpopular expression and ideas, including expression that may be regarded as deeply offensive (so long as it does not constitute hate speech).[15] The European Court of Human Rights has consistently held that freedom of expression constitutes ‘one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment’. It applies both to information and ideas that may be favourably received or regarded as inoffensive, as well as to those that offend, shock, or disturb. It is ‘all the more important when it comes to conveying ideas which offend, shock or challenge the established order’. This is a requirement of pluralism, tolerance, and broadmindedness ‘without which there is no “democratic society”’. The courts have held the same is true when the persons concerned are members of the defence force, although limitations are permissible to ensure military discipline is not undermined.[16] The courts have also held that discussion of ideas must be tolerated in the army of a democratic State,[17] and while freedom of expression is subject to exceptions, these must be construed strictly, and the need for any restrictions must be established convincingly.[18] The courts have also held that special scrutiny is required when criminal punishment is imposed for offences related to freedom of expression.[19]
2.68 In this case, while breach of a service offence does not result in the imposition of criminal punishment, it could result in the imposition of imprisonment for up to two years. The minister advised that the range of punishments depends on the service tribunal determining the matter and the rank of the convicted defence member. The minister advised that a summary authority cannot impose a punishment of imprisonment, which can only be imposed by a superior service tribunal. However, it is noted that a summary authority can impose a period of detention of up to 14 or 28 days,[20] which still results in a significant deprivation of liberty, and as a matter of law any offensive use is liable to be punished by up to two years imprisonment.
2.69 Further, the service offence applies not only to conduct by an ADF member in the course of their employment, but also in their personal capacity. The minister advised that it would be possible for an ADF member to be prosecuted for this offence ‘committed in circumstances which have little link to their service in the Defence Force’, and ‘regardless of the identity or status of the victim’ or whether it occurs within or outside regular hours of duty. As the Judge Advocate General for the Defence Force has said, an offence which requires no connection to the discipline of the defence force beyond the accused being a member of the ADF is exceptional. Other service offences have either explicit connection to service in the ADF or a close civilian criminal law counterpart with equivalent penalties, which means that ADF members charged are not being treated more harshly than other members of the community.[21] The Judge Advocate General has cautioned ‘care should be taken before legislatively intruding into the otherwise private lives of Defence members by imposing obligations on their private behaviour stricter than those required of other Australian citizens, and then giving summary discipline authorities the power to enforce those obligations’.[22]
2.70 Given the breadth of the potential restriction on an ADF member’s right to freedom of expression by prohibiting any speech that is deemed to be offensive according to broadly stated notions of morality, decency and propriety; that a period of detention or imprisonment may be imposed; and as the minister advises, it is intended to apply to members in their personal capacity and without any link to their service, the onus is on the government to establish this is a permissible limit on the right to freedom of expression. In this regard, as stated in the initial analysis, maintaining or enforcing military service discipline would be likely to constitute a legitimate objective for the purposes of international human rights law,[23] and having an enforceable service cyber-bullying offence may be rationally connected to that objective. The key question is whether the measure is a proportionate way to achieve the stated objective.
2.71 In this regard, the minister provided detailed advice as to the process for review of any convictions for a service offence, including a right of automatic review and right to apply for review, and appeal rights. These review and oversight rights help to assist with the proportionality of the measure. However, there appear to be no other safeguards that would ensure the measure is proportionate to the objectives sought to be achieved. The minister advised that there is no less rights restrictive way of achieving the objective of maintaining military discipline, as administrative sanctions, such as termination, formal warning or censure, cannot promptly address instances of cyber-bullying in operational environments such as overseas or on board a navy ship. However, no information was provided as to why such administrative sanctions cannot be imposed promptly in operational environments. It is also not clear why the service offence could not be restricted to use of social media and other electronic services which threaten, intimidate, harass or humiliate another person. It remains unclear why prohibiting merely offensive uses, including those unrelated to defence service, is required to achieve the purpose of maintaining military discipline. Under the current phrasing of the service offence it would appear that even private messages between an ADF member and civilian friend, that a reasonable person might regard as offensive, could make an ADF member liable for prosecution under this proposed offence. For example, it would appear that sexual messages, even between consenting adults (if one were an ADF member), may breach this proposed service offence. It is also not clear if the discussion of ideas (such as questioning the legacy of the ANZACs) might give rise to prosecution if it were deemed offensive.
2.72 Noting the breadth of the potential restriction on an ADF member’s right to freedom of expression; that a period of detention or imprisonment may be imposed; that the service offence applies to members in their personal capacity and without any link to their service; and that it appears there may be less rights restrictive ways to enforce military discipline, it has not been established that a service offence of using social media services or relevant electronic services in a way that a reasonable person would regard as merely offensive, is a permissible limit on the right to freedom of expression.
2.73 The committee thanks the minister for this response. The committee notes this bill seeks to make it an offence for Australian Defence Force members to use a social media service or relevant electronic service (such as email, text or chat messages), 'in a way that a reasonable person would regard as offensive or as threatening, intimidating, harassing or humiliating another person'. The maximum punishment would be imprisonment for two years. While ‘threatening, intimidating, harassing or humiliating’ another person would appear to be limited to serious online abuse, the proposed service offence of using a service in a way that is 'offensive' to a reasonable person may be employed in relation to conduct with effects that range from slight to severe, and could capture a large range of uses that may not only constitute cyber-bullying.
2.74 The committee considers that this measure engages and limits the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, including expression that may be regarded as offensive. This right may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
2.75 The committee considers that the measure seeks to achieve the legitimate objective of maintaining or enforcing military service discipline, and the proposed offence may be effective to achieve this. The committee welcomes the minister’s commitment to amend the bill to provide greater clarity as to the factors that should be considered in determining if content may be considered ‘offensive’. However, while limitations on the right to freedom of expression are permissible to ensure military discipline is not undermined, the committee considers it has not been established that the offence relating to uses that may be regarded as ‘offensive’ would be a permissible limit on this right. This is particularly so noting the breadth of the potential restriction on an ADF member’s right to freedom of expression; that a period of detention or imprisonment may be imposed; that the service offence applies to members in their personal capacity and without any link to their service; and that it appears there may be less rights restrictive ways to enforce military discipline.
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Suggested action
2.76 The committee considers that the proportionality of the measure may
be assisted were proposed section 48A of the bill amended
to:
(a) limit the offence to uses of social media or other electronic
services that a reasonable person would regard as threatening, intimidating,
harassing or humiliating to another person (and not merely offensive);
or
(b) the prohibition on offensive uses of social media or other
electronic services be restricted to situations where there is a connection
to
service in the ADF and the need to maintain military discipline.
2.77 The committee recommends that the statement of compatibility with
human rights be updated to reflect the information which has
been provided by
the minister.
|
2.78 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Defence Legislation Amendment (Discipline Reform) Bill 2021, Report 12 of 2021; [2021] AUPJCHR 120.
[2] Parliamentary Joint Committee on Human Rights, Report 10 of 2021 (25 August 2021),
pp. 8-13.
[3] Schedule 3, item 2, proposed section 48A.
[4] Schedule 3, item 5, proposed section 84A.
[5] Schedule 3, item 2, proposed section 48B.
[6] International Covenant on Civil and Political Rights, article 19(2).
[7] UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [12].
[8] UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [11]. This is subject to the provisions of article 19(3) and article 20 of the International Covenant on Civil and Political Rights. Article 19(3) states that the right to freedom of expression carries with it special duties and responsibilities, and may be subject to restrictions but only such that are provided by law and are necessary for respecting the rights or reputations of others, or to protect national security, public order, public health or morals. Article 20 provides any propaganda for war, and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited.
[9] The minister's response to the committee's inquiries was received on 8 October 2021. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[10] Re Aird; Ex parte Alpert {2004) 220 CLR 308 at 314, 324, 325 and 356 - (21004) 220 CLR 308 at314, 324, 325 and 356; cited with approval in Cowen per Keiffel O; Bell and Keane JJ).
[11] See Private R v Cowen [2020] HCA 31. The exception to this line of authority is Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 which unanimously found that the establishment of the Australian Military Court as a legislative court operated outside of the traditional system of military justice supported by s51(vi) of the Constitution.
[12] Section 473.4 of Schedule 1 of the Criminal Code Act 1995 applies in relation to Part 10.6 of the Criminal Code. The offence, in section 471.12, to use a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, is contained in Part 10.5 of the Criminal Code.
[13] Monis v R; Droudis v R [2013] HCR 4 [310].
[14] Online Safety Act 2021, sections 7 and 8.
[15] See Palomo Sánchez and Others v. Spain, European Court of Human Rights (Grand Chamber), Application Nos. 28955/06, 28957/06, 28959/06, and 28964/06 (2011) [53]; Handyside v. the United Kingdom, European Court of Human Rights (Grand Chamber), Application No. 5493/72 (1976) [49].
[16] See Engels and Others v The Netherlands, European Court of Human Rights, Application Nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (1976) [100]; and Vereinigung Demokratischer Soldaten Österreichs et Gübi v Austria, European Court of Human Rights, Application No. 5153/89 (1994) [27].
[17] Vereinigung Demokratischer Soldaten Österreichs et Gübi v Austria, European Court of Human Rights, Application No. 15153/89 (1994) [38].
[18] See UN Human Rights Committee, General Comment 34: Freedom of opinion and expression (2011) [11].
[19] Bingöl v. Turkey, European Court of Human Rights, Application No. 36141/04 (2010) [41].
[20] See Schedule 2 Part 2 of the Bill, in particular item 23, proposed section 69B.
[21] Judge Advocate General, Report for the period 1 January to 31 December 2020 (June 2021) [93]‑‑[94].
[22] Judge Advocate General, Report for the period 1 January to 31 December 2020, (June 2021) [95]. See also the submission by the current Judge Advocate General who endorsed these comments in relation to this bill, see Senate Foreign Affairs, Defence and Trade Legislation Committee, Inquiry into the provisions of the Defence Legislation Amendment (Discipline Reform) Bill 2021, Submission 2.
[23] Noting that limits can be placed on the right to freedom of expression to protect public order, which would include order within the defence force, see Engels and Others v The Netherlands, European Court of Human Rights, Application Nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (1976) [98].
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