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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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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 to
enhance its effectiveness in dealing with minor breaches of
military
discipline;
• remove the subordinate summary authority, to reduce the number of
summary authority levels and therefore simplify the manner
in which minor
disciplinary issues are enforced; 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/Sponsor
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Defence
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Introduced
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House of Representatives on 12 August 2021
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Bill status
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Before the Senate
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2.133 In Scrutiny Digest 13 of 2021 the committee requested the minister's advice as to:
• why it is considered necessary and appropriate to leave the significant elements of the operation of the disciplinary infringement scheme set out in proposed sections 9FA and 9J to delegated legislation; and
• whether the bill can be amended to include at least high-level guidance regarding the operation of these elements on the face of the primary legislation.[2]
Minister's response[3]
2.134 The minister advised:
S.9FA (discipline officer procedure) and 9J (consequences of punishments) within Part IA of the Bill, are very similar in substance to existing provisions of the DFDA dealing with the same subject matter (see: ss.169G and 169FB respectively).
The key purpose and object of Part IA is to provide a means of dealing with minor service discipline matters which is fair and efficient; and meets the disciplinary needs of the Australian Defence Force.[4] The need to maintain and enforce service discipline applies at all times and all locations, and for which Part IA will deal with the majority of minor discipline breaches in the Australian Defence Force.
In particular, the disciplinary infringement scheme only applies where an infringed member elects to be dealt with under the scheme, and by so doing, acknowledges the discipline breach. The disciplinary infringement scheme does not deal with contested infringements – this can only occur before a service tribunal on a charge of a DFDA service offence. The discipline officer procedures are therefore limited in scope and are provided for on the face of the Bill (see: by s.9FA, and additionally by ss.9EB, 9F, 9FB and 9FC).
The procedural requirements for discipline officers under Part IA of the Bill are covered within the Part, and mirror those provisions within the existing DFDA Part IXA, which Part IA will replace. The procedural requirements are comprehensively detailed within Australian Defence Force discipline policy guidelines, as approved by the Chief of the Defence Force. The administrative guidelines are widely published and available within the Australian Defence Force. On commencement of Part IA, the procedural and policy guidelines for discipline officer procedures will be widely published by the authority of the Chief of the Defence Force.
Additionally, s.9E(4) prescribes that a disciplinary infringement notice must be in accordance with a form approved by the Chief of the Defence Force. The disciplinary infringement notice provides explanatory detail to the infringed member of matters including the discipline officer and senior discipline officer procedure, including the right of the member to call witnesses and present evidence in relation to the discipline officer’s powers and punishment options.
Office of Parliamentary Counsel (OPC) drafting policy is to use legislative instruments rather than regulations for all matters that do not need to be prescribed by regulation (see: OPC Drafting Direction 3.8 - subordinate legislation). Consequently, procedural rules for the disciplinary infringement scheme within Part IA, are not matters that need to be done by regulation as reflected within s.9FA of the Bill.
S.9J(1) relates to the consequences of the punishments under the disciplinary infringement scheme (and service tribunals), and rules detailing the consequences that are to flow, as may be prescribed by the Chief of the Defence Force or a service chief. S.9J(1) is in the same terms as the current s.169FB(1). The Defence Force Discipline (Consequences of Punishment) Rules 2018 (see: s8-10) issued by the Chief of the Defence Force, detail the specific consequences that apply in respect of the respective punishments imposed by a discipline officer (and service tribunals). The Rules cover a wide range of command and administrative arrangements such as deferral of punishment commencement, access to bars etc.
The same consequences apply irrespective of whether the punishment is imposed by the authority of discipline officer or service tribunal. Following the passing of Part IA of the Bill, it is intended that the Consequences of Punishment Rules will be amended following authorisation by the Chief of the Defence Force, and include reference to senior discipline officer punishments – the amended rules will commence with effect the commencement of Part IA.
All instruments that may be made by the Chief of the Defence Force pursuant to the rule making power within s.9FA and 9J(1), will by the express terms of their respective provisions, be legislative instruments and subject to the Legislation Act 2003 (including explanatory statement, tabling before Parliament, disallowance and sun-setting regimes) (see: OPC Instruments Handbook).
In response to the Committee’s question as to whether the provision of high level guidance on the operation of ss.9FA and 9J should be included on the face of the Bill, I do not believe such guidance is necessary. Indeed, high level procedural requirements that give effect to the legislation are detailed on the face of the Bill by s.9FA, and additionally by ss.9EB, 9F, 9FB and 9FC. I consider the high level guidance as detailed within Part IA of the Bill to be appropriate and that detailed procedural issues are most appropriately addressed within any legislative instrument that may be issued by the Chief of the Defence Force. I also consider the additional procedural and policy guidance published by the Australian Defence Force, together with notes for the infringed member within the Disciplinary Infringement Notice (as approved by the Chief of the Defence Force) to be sufficient and appropriate.
Furthermore, for s.9J, I do not consider higher level guidance within the DFDA is required, additional to the detail within s9J(1), and I am satisfied that subordinate legislation within the Defence Force Discipline (Consequences of Punishment) Rules 2018 will give effect to the legislative requirements.
The discipline officer procedures and the consequences of punishments that may flow, I believe are best addressed within subordinate legislation as expressed within the Bill.
Committee comment
2.135 The committee thanks the minister for this response. The committee notes the minister's advice that section 9FA (discipline officer procedure) and section 9J (consequences of punishments) within Part IA of the bill, are very similar in substance to existing provisions of the Defence Force Discipline Act 1982 dealing with the same subject matter.
2.136 The committee also notes the minister's advice that the high-level guidance as detailed within Part IA of the bill to be appropriate and that detailed procedural issues are most appropriately addressed within any legislative instrument that may be issued by the Chief of the Defence Force. The minister also advised that the additional procedural and policy guidance published by the Australian Defence Force, together with notes for the infringed member within the Disciplinary Infringement Notice (as approved by the Chief of the Defence Force) to be sufficient and appropriate.
2.137 The committee's consistent scrutiny view is that significant matters, such as the operation of a disciplinary infringement framework, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee has not generally accepted consistency with existing legislation or a reliance on non-legislative policy guidance to be a sufficient justification for leaving significant matters to delegated legislation.
2.138 It remains unclear to the committee why at least high-level guidance in relation to these matters cannot be provided on the face of the primary legislation. The committee's concerns in this instance are heightened noting the potential impact on personal rights and liberties that may flow from how prescribed defence members are to be dealt with under the disciplinary infringements scheme
2.139 The committee thanks the minister for providing a proposed supplementary explanatory memorandum addressing the scrutiny issues identified by the committee.
2.140 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving significant elements of the operation to the proposed disciplinary infringements scheme set out in proposed sections 9FA and 9J to delegated legislation.
2.141 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
2.142 In Scrutiny Digest 13 of 2021 the committee requested the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in proposed sections 35A and 48B. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.[6]
2.143 The committee also requested the minister's advice as to whether the bill can be amended to provide for a more specific defence in proposed subsection 35A(3).[7]
Minister's response[8]
2.144 The minister advised:
S.35A of the Bill creates an offence of failure to perform duty or carry out an activity.
S.35A(3) provides a reasonable excuse defence. This will mean all Criminal Code defences will be available for the charged member, including the defence of mistake of fact under s.9.2 of the Code in relation to that physical element (s35A(2)). Additionally, an offence specific defence of reasonable excuse for the relevant conduct will be available, with the charged member bearing an evidential burden for the defence that is consistent with the Criminal Code s.13.3(3).
The Guide provides that the defence of reasonable excuse should generally be avoided, unless it is not possible to rely on the general defences in the Criminal Code or to design more specific defences. The Guide further provides this is because the defence of reasonable excuse is too open-ended. This makes it difficult for the defendant to rely on, as it is unclear what needs to be established. Equally, it may be difficult for the prosecution to respond to the defence, if raised.
The Guide nevertheless provides generally, that if the Criminal Code defences are insufficient, offence-specific defences adapted to the particular circumstances should be applied. S.35A(3) of the Bill provides an offence-specific defence, as opposed to being specified as an element of the offence, because circumstances that a charged member would likely raise for failing to perform a duty or carry out an activity contrary to s.35A, would in most cases, be peculiarly within the knowledge of the charged member.
Equally, it would be more difficult for the prosecution to disprove than for the charged member to establish the matter. For example, circumstances peculiarly within the knowledge of the charged member might include the non-performance of duty or carrying out of an activity where the member claimed not being confident to perform the duty etc. as the reason for non-performance. This explanation would be peculiarly within the knowledge of the charged member and does not directly fit within any of the Criminal Code defences.
Additionally, a reasonable excuse defence is not central to the question of culpability for the service offence.
A reasonable excuse defence provides an additional protection for a charged member in addition to, and not as a substitute for the Criminal Code defences. DFDA discipline tribunals are presided over by military personnel comprising military officers who invariably are not legally trained. The application of a reasonable excuse defence where it arises, will be considered by the service tribunal having regard to the circumstances of the alleged offence and the military context of the conduct. A service tribunal is well able to have regard to an excuse raised, and to determine the reasonableness of that excuse, having regard to the military context. Recognising also the availability of a reasonable excuse statutory defence, applies to a substantial number of offences already within the DFDA and will extend to disciplinary infringements; it is a concept well understood by the lay commanders and non-commissioned officers who must apply the DFDA.[9]
The evidential burden on the charged member is clear on the face of the Bill (see: Note to s.35A(3)) and s.48B(2) (see: Note 1).
Additional factors that support the inclusion of a reasonable excuse defence include: the wide variety of duties and activities that defence members may be called upon to perform with the correlating exculpatory circumstances or explanation for non-performance which can be raised and considered with a reasonable excuse defence, supplementary to Criminal Code defences.
Evidential burden
The Guide also provides that an evidential, rather than legal, burden of proof should usually apply to a defence, and that placing a legal burden of proof on a defendant (charged member) should be kept to a minimum. The Bill at s.35A(3), provides an evidential burden on the charged member, consistent with the Criminal Code (ss.13.3(3)) together with the note to the section, which is consistent with the Guide.
Where the law imposes a burden of proof on the defendant (charged member), it is an evidential burden, unless the law expresses otherwise (see Criminal Code ss.13.3 and 13.4).
a) An evidential burden of proof requires the defendant (charged member) to adduce or point to evidence that suggests a reasonable possibility that a matter exists or does not exist (Criminal Code s.13.3).
b) A legal burden of proof on the defendant must be discharged on the balance of probabilities (Criminal Code s.13.5).
An evidential burden is easier for a defendant (charged member) to discharge, and does not completely displace the prosecutor’s burden (Criminal Code ss.13.1 and 13.2) and only defers that burden. Accordingly, as a general rule, the default position in s.13.3 of the Criminal Code (as outlined above), should apply and the defendant (charged member) should bear an evidential burden of proof for an offence-specific defence, unless there are good reasons to depart from this position. I am satisfied there are no good reasons to depart from the position.
In addition to the detail above and in respect of the s.48B offence – failure to comply with removal order – an offence specific defence is provided for within the Bill at s.48(2). The defence provides that s.48(2) does not apply if it is not reasonably practicable for the (charged member) to comply (with the removal order). The defence is offence-specific and is not addressed or covered by the Criminal Code defences. The defendant (charged member) will bear an evidential burden in relation to the defence, for the same reasons as detailed in the discussion dealing with the s.35A defence above. A defence of ‘not reasonably practicable to comply’ would for example, in a circumstance where a defence member takes reasonable steps to comply with the removal order by requesting a social media service provider to remove or delete the offending social media or relevant electronic service material, and the service provider is unable or unwilling to comply with the member’s request to remove or delete the social media etc. material.
The Bill, I believe, correctly and fairly casts the evidential burden on the charged member in respect of the offence specific defences at ss.35A and 48B, and I do not believe there are good reasons to depart from this position. I am satisfied that the offence-specific defences within s.35A(3) and s.48(2) of the Bill are appropriate and are consistent with the broad range of discipline matters similarly provided for in the DFDA.
Committee comment
2.145 The committee thanks the minister for this response. The committee notes the minister's advice that proposed subsection 35A(3) provides an offence-specific defence, as opposed to being specified as an element of the offence, because circumstances that a charged member would likely raise for failing to perform a duty or carry out an activity contrary to section 35A, would in most cases, be peculiarly within the knowledge of the charged member.
2.146 The committee also notes the minister's advice that a reasonable excuse defence is not central to the question of culpability for the service offence. The minister also advised that there are additional factors that support the inclusion of a reasonable excuse defence, including the wide variety of duties and activities that defence members may be called upon to perform with the correlating exculpatory circumstances or explanation for non-performance which can be raised and considered with a reasonable excuse defence.
2.147 In relation to proposed subsection 48B(2), the committee notes the minister's advice that, the defendant will bear an evidential burden in relation to the defence, for the same reasons as detailed in the discussion dealing with the proposed section 35A.
2.148 While acknowledging the minister's advice that the defences in proposed subsections 35A(3) and proposed subsection 48B(2) would likely be peculiarly within the knowledge of the defendant, the committee reiterates that the Guide to Framing Commonwealth Offences states that:
An offence-specific defence of 'reasonable excuse' should not be applied to an offence, unless it is not possible to rely on the general defences in the Criminal Code or to design more specific defences.[10]
2.149 The committee does not consider that the minister's response has adequately addressed why a more specific defence (or defences) could not have been included in proposed subsection 35A(3) instead of a defence of 'reasonable excuse'. The committee does not consider the fact that the defence is not central to the question of culpability or that there are a wide variety of duties undertaken by defence members to be a sufficient explanation as to why a more specific defence (or defences) could not have been designed.
2.150 The committee thanks the minister for providing a proposed supplementary explanatory memorandum addressing the scrutiny issues identified by the committee.
2.151 The committee draws the offence-specific defence in proposed subsection 35A(3) to the attention of senators and leaves to the Senate as a whole the appropriateness of providing an offence-specific defence of 'reasonable excuse' in circumstances where a more specific defence (or defences) could have been included.
2.152 In light of the information provided, the committee makes no further comment on the offence-specific defence in proposed subsection 48B(2).
2.153 In Scrutiny Digest 13 of 2021 the committee requested the minister's advice as to whether the bill can be amended to include further guidance or examples as to what conduct might constitute using a social media service or relevant electronic service 'in a way that a reasonable person would regard as offensive'.[12]
2.154 The minister advised:
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 DFDA regarding the meaning of ‘offensive’ generally, or specifically in aid of s.48A.
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.
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 interpretive 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, I believe, 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 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).
Committee comment
2.155 The committee thanks the minister for this response. The committee notes the minister's advice that 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, or undermine the reputation of, the Australian Defence Force. The minister also advised that the bill would benefit from the inclusion of interpretive guidance in relation to the use of a social media service etc. in a way that a reasonable person would regard as 'offensive'.
2.156 The committee also notes the minister's advice that this guidance could be achieved by amending the bill to include an interpretive provision along similar lines to section 8 of the Online Safety Act 2021 and section 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 Defence Force Discipline Act 1982 to address the meaning of 'offensive' social media etc. use for the purpose of proposed section 48A.
2.157 The committee acknowledges the minister's advice and welcomes the minister's undertaking to amend the bill to include legislative guidance as to what uses of a social media service or relevant electronic service might be considered 'offensive'. However, the committee notes that basing what would constitute 'offensive' use of a service on the view of a 'reasonable person' continues to leave the offence unclear as reasonable people may differ on the matters listed in the draft new provision and a court will not be in a position to survey public opinion, nor does a court have special knowledge or understanding of the standards of morality which may generally be accepted in the community.
2.158 As a result, the committee considers that proposed section 48A, including the provision as outlined in the minister's response, may still work to chill the exercise of speech in a way which may compromise the value the common law places on freedom of speech.
2.159 The committee thanks the minister for providing a proposed supplementary explanatory memorandum addressing the scrutiny issues identified by the committee.
2.160 The committee also welcomes the minister's undertaking to amend proposed section 48A to insert an interpretative clause and considers that such an amendment would partially address the scrutiny concerns raised by the committee. However, the committee draws its outstanding scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of basing the proposed guidance in the bill as to what conduct might constitute 'offensive' use of a social media service or relevant electronic service on what a 'reasonable person' would regard as offensive.
[1] Schedule 1, item 1, proposed sections 9FA and 9J. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).
[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2021, pp. 4-5.
[3] The minister responded to the committee's comments in a letter dated 7 October 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 16 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[4] Defence Force Discipline Act 1982, section9B.
[5] Schedule 3, items 1 and 2, proposed sections 35A and 48B. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[6] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.
[7] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2021, pp. 5-6.
[8] The minister responded to the committee's comments in a letter dated 7 October 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 16 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[9] See: Defence Force Discipline Act 1982, sections 15; 15A-G; 16; 16A; 17; 23;28; 32; 40C; 43; 45; 46; 48; 50; 53; 54A; 60; and 100QA.
[10] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 52.
[11] Schedule 3, item 2, proposed sections 48A and 9J. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).
[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2021, p. 7.
[13] The minister responded to the committee's comments in a letter dated 7 October 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 16 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
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