Bills Digest no. 75 2007–08
Defence Legislation Amendment Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Defence Legislation Amendment Bill
2008
Date
introduced: 20
February 2008
House: House of Representatives
Portfolio: Defence
Commencement:
Schedule 7, Parts 1, 2, 5,
6 and 7, items 27, 28, and 40 to 44, and Schedule 8 on the date of
Royal Assent; Schedules 1 6, Schedule 7 Part 3, and Schedule 7
items 24 26, 29 and 30 on the day after the end of the period of
six months beginning on the date of Royal Assent; the remaining
provisions immediately following the commencement of specified
items in the Defence Legislation Amendment Act
2006.
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/.
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,
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:
- an automatic right of appeal from a summary authority to a
single Military Judge of the Australian Military Court (AMC)
- the right to elect trial by a Military Judge of the AMC for
most disciplinary offences
- simplified rules of evidence
- a form of review for technical errors related to the awarding
of punishments and orders
- simplification of offences and punishments, and
- changed jurisdictions of Superior Summary Authorities and
Discipline Officers.
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:
- the 1997 Study into the Judicial Sydney
under the Defence Force Discipline Act by Brigadier the
Hon Mr Justice Abadee
- the 1998 Commonwealth Ombudsman s Own Motion Investigation
into How the ADF Responds to Allegations of Serious Incidents and
Offences
- the 1999 Military Justice Procedures in the ADF by the
Joint Standing Committee on Foreign Affairs, Defence and Trade
- the same committee s 2001 Rough Justice? An Investigation
into Allegations of Brutality in the Army s Parachute
Battalion
- the 2001 Burchett QC Inquiry into Military Justice in the
Australian Defence Force, and
- the 2002-03 West Australian Coroner s investigation of fire on
board HMAS Westralia.
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]
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]
The 2003 Committee released its
report on 16 June 2005 and concluded that there was a need for a
wholesale review of the military justice system and made 40
recommendations.
The previous 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] The current Government substantially agrees with
those recommendations but also has accepted the concerns of the
2007 Committee. This is addressed under the heading Key Issues
below.
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 quoted 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:
- offences peculiar to the defence forces, such as absence
without leave, disobedience of a command, and endangering
morale
- offences similar or identical to civil offences, but that
relate to service personnel or equipment, such as assault of a
superior or subordinate, destruction or damage of service property,
or dealing in narcotic goods on a base, and
- offences imported from civilian criminal law, such as murder,
manslaughter and theft of (non-service) property.[8]
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:
- serious offences in the first two (military specific) groups
are investigated by military police and may be dealt with by
service tribunals which may be either Courts Martial or Defence
Force Magistrates
- less serious offences may be heard by:
- a Summary Authority, who is superior officer, given limited
powers of punishment, or
- for officer cadets or any member of the ADF below
non-commissioned rank, a Discipline Officer
This Bill relates to those less
serious offences and aims to modernise and redesign the summary
discipline system.
The Explanatory Memorandum states that the initial funding for
these amendments has been identified and will be provided from
current allocations.[10]
The Defence Legislation Amendment Bill 2007 (the 2007 Bill) was
introduced into the House of Representatives on 15 August 2007. It
was referred to the Senate Standing Committee on Foreign Affairs,
Defence and Trade (the 2007 Committee) on 16 August 2007.
Eight written submissions were received by the Committee from
the following:
- Geoff Earley,
AM Inspector General Australian Defence Force
- Brigadier R.R.S. Tracey RFD
Acting Judge Advocate General Australian Defence Force
- Major General J.P. Cantwell, AO
Acting Chief of Army, Army Headquarters
- Lieutenant General K.J. Gillespie, AO, DSC, CSM
Acting Chief of the Defence Force Australian Defence
Headquarters
- Air Vice-Marshal J.N. Blackburn, AO
Acting Chief of Air Force, Air Force Headquarters
- Rear Admiral, RAN R.H. Crane,
Acting Chief of Navy
- Brigadier L.A. McDade,
Director of Military Prosecutions
- Law Council of Australia -
Mr Tim Bugg, President
Of these, submissions 1 to 6 fully supported the
2007 Bill, on the grounds that its purpose was to put into effect
the recommendations made in the Foreign Affairs, Defence and Trade
References Committee report of June 2005.
The 2007 Committee reported on 10 September 2007 and, based on
the content of their
report, a revised Explanatory Memorandum was tabled on 20
September 2007.[11]
However, the 2007 Bill had not been passed when the Parliament was
prorogued in October 2007. As a result, the 2007 Bill lapsed.
The current Bill is not the same as the 2007 Bill. There have
been some changes which reflect the concerns of the 2007 Committee
in relation to the simplification of the rules of evidence. These
are discussed under the heading Key Issues below.
There are two key issues arising from the Bill:
- The Bill proposes to amend the DFDAA to empower the Director,
after the completion of a trial by the new AMC under the DFDA, to
refer a question of law that arises in the trial to the Defence
Force Discipline Appeal Tribunal. The issue is
whether there should be a right to suspend a trial proceeding in
order to obtain a ruling on a matter of law rather than wait until
after the trial is completed.
- The Bill proposes that the formal rules of evidence need not be
followed in appeals to the AMC or in proceedings before a summary
authority. The issue is whether this is
appropriate in all the circumstances.
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 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:
- 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
- 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).[12]
Provisions effecting the second approach do not exist under the
current regime and are not proposed under the Bill. The Law Council
submitted that the Federal Court decision in Commonwealth
of Australia v Westwood [2007] FCA 1282
(Westwood) demonstrates why such provisions are
necessary.
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.
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:
(1) In proceedings before
a court martial, the judge advocate shall give any ruling, and
exercise any discretion, that, in accordance with the law in force
in the Jervis Bay Territory,[13] would be given or exercised by a judge in a trial
by jury.
(2) Where, for any purpose
in connection with the giving of a ruling, or the exercise of a
discretion, by a judge in a trial by jury in the Jervis Bay
Territory, the judge would, in accordance with the law in force in
that Territory, sit in the absence of the jury, the judge advocate
shall, for any purpose in connection with the giving of such a
ruling, or the exercise of such a discretion, by the Judge
Advocate, sit without the members of the court martial.
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).
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.
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 any case in which a declaration can be and is
sought on a question of evidence or procedure, the
circumstances must be most exceptional to warrant
the grant of relief. The power to make declaratory relief has
proved to be a valuable addition to the armoury of the law. but the
procedure is open to abuse, particularly in criminal cases, and if
wrongly used can cause the very evils that it was designed to
avoid. Applications for declarations as to the admissibility of
evidence may in some cases be made by an accused person for
purposes of delay, or by a prosecutor to impose an additional
burden on the accused, but even when such an application is made
without any improper motive it is likely to be dilatory in effect,
to fragment the proceedings and to detract from the efficiency of
the criminal process.
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 the 2007 Bill
which was introduced into Parliament on the day after the date of
the hearing, in the following terms:
- if passed, the (2007) Bill will amend the DFDAA to empower the
Director, after the completion of a trial by the new Australian
Military Court under the DFDA, to refer a question of law that
arises in the trial to the Defence Force Discipline Appeal
Tribunal.[14]
- the Explanatory Memorandum (to the 2007 Bill) records that the
rationale for enabling the Director to seek a determination from
the DFDAT on a question of law that arises from a trial by the AMC
is that there should be a procedure to obtain a correct statement
of the law for future cases. This is a standard procedure for
correcting an error of law in criminal proceedings.[15]
- If passed, the (2007) Bill will protect the position of an
accused person by enabling the Director to test the ruling only
prospectively. If, therefore, an erroneous
evidentiary ruling by the AMC leads to the acquittal of an accused
person, he or she cannot be deprived of the benefit of that verdict
even if the Tribunal ultimately upholds the prosecution s challenge
to the correctness of the ruling.[16]
The current Bill provides for rulings such as the one made by
the Judge Advocate in Westwood to be tested
after the trial, not during 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[17] 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.
As already stated, 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.
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. [18]
That report contains significant criticisms of the existing
disciplinary system stating that:
It is apparent that Australia's disciplinary
system is not striking the right balance between the needs of a
functional Defence Force and Service members' rights, to the
detriment of both.[19]
The 2007 Bill was a direct response to the recommendations which
were made by the 2003 Committee. It contained provisions which
would have brought about a radical simplification of the rules of
evidence in proposed sections 146A[20] and 168B.[21]
When the 2007 Bill was referred to the 2007 Committee it was
clear that these changes to the requirement to apply the formal
rules of evidence were supported by members of the Australian
Defence Force. The written and oral submissions endorsed the 2007
Bill on the grounds that its terms had been drafted after
considerable consultation with those parties who would be most
affected by it. Nevertheless there was some criticism that the
simplification of the rules of evidence had gone too far.
Whilst its final recommendation was that the 2007 Bill be
passed, the 2007 Committee also recommended that the Government
make amendments to section 146A (about the simplified rules of
evidence at a summary trial) so that the principles of natural
justice and procedural fairness which underpin the rules of
evidence must be complied with.[22]
This Bill delivers on that recommendation.
This 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.
The 2006 Amendment Act created 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.[23]
Summary Authorities have limited powers of punishment and are
generally used to try less serious offences.[24] Section 3 of the DFDA defines
summary authority as:
- a superior summary authority[25]
- a commanding officer, or
- a subordinate summary authority.[26]
The submission by the Inspector General
Australian Defence Force states that:
on a day to day basis the administration of
military justice at the summary level will routinely involve many
more members. In 2006, for instance, over 2000 summary trials were
conducted across the ADF whereas only 54 Defence Force
Magistrate/courts-martial trials were held.[27]
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: subsection 111B(2).
It is worth noting that the submission from the
Office of the Director of Military Prosecutions to the 2007
Committee was that the scope of the right of an accused person to
elect trial seems to be limited and may need to be expanded at some
later time.[28]
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:
- absence from duty under subsections 23(1) and (2)
- absence without leave under subsection 24(1)
- insubordinate conduct under subsections 26(1) and (2)
- disobeying a lawful command under subsection 27(1)
- failing to comply with a general order under subsection
29(1)
- a person on guard or on watch is sleeping, intoxicated, leaves
their post without being relieved or absents themselves from a
place that it is their duty to be under subsection 32(1)
- negligence in performance of duty under subsection 35(1)
- intoxicated while on duty under subsection 37(1)
- custodial offences under subsections 54A(1) and (2), and
- prejudicial conduct under subsections 60(1) and 60(1A).
An accused person must be given the opportunity
to obtain legal advice about the election if a legal officer is
reasonably available[29] 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.[30]
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.[31]
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,[32]
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:
- Section 1 sets out in tables A and B the
punishments that may be imposed by a superior summary authority on
certain officers and on other persons respectively
- Section 2 sets out in table C, those
punishments that may be imposed by a commanding officer on various
classes of convicted persons, and
- Section 3 sets out in table D those
punishments that may be imposed by a subordinate summary authority
on various classes of convicted persons.
Items 2 to 4 of Schedule 2 amend
sections 115, 116 and 118 of the DFDA. 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.[33]
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).[34]
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:
- it was unreasonable or
- new evidence has been received or
- the person convicted is suffering from a mental illness.
Where the AMC does quash a conviction, it
may:
- decide that no further action is necessary so that the person
is taken to have been acquitted of the offence under
proposed section 165A, or
- order a new trial by the AMC if it considers that it would be
in the interests of justice to do so: proposed
subsection 165(1), or
- substitute a conviction for an alternative offence:
proposed subsection 166(1). In
that case proposed subsection
166(3) provides protections to the convicted person that
the punishment will not be greater than it would have been for the
original conviction.
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:
- must comply with the rules of natural justice and the Summary
Authority Rules
- must act with as little legal formality or legal technicality
as possible, while ensuring fairness
- are not bound by the rules of evidence whether statutory or
common law but must comply with the basic principle of those rules
relating to relevant, reliability, weight and probative value
- may admit any documents or call any witnesses that are
considered to be of assistance or relevance
- may give such weight to any evidence submitted to it that is
considered to be important or probative.
The question of whether the AMC and a summary
authority should be required to apply the formal rules of evidence
was the subject of submissions to the 2007 Committee and the
provisions of proposed sections 145A and 168B have been altered
from the 2007 Bill to this Bill.
According to the Explanatory Memorandum, the
evidence regime currently applicable to summary trial is overly
complex and includes both Commonwealth and ACT evidence
legislation.[35]
Under the proposed provisions the formal rules of evidence will not
apply in respect of a trail in the AMC. However, the rules of
natural justice, together with basic evidentiary principles do
continue to apply.[36]
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, tell the convicted person that they have the right to
advice and representation 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:
The ability of the AMC to deal with an appeal on
the papers avoids the requirement for evidence to be reheard where
the statutorily independent AMC is of the opinion that such a
course is unnecessary A very important protection exists for the
accused that is, if it appears that the issues cannot be adequately
determined on the papers, a hearing must be held (and the appeal
must be held in the presence of the accused).[37]
According to proposed section 168E the AMC may
use video and audio links in the hearing of appeals as for
conducting trials.
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.
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.
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.[38]
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.[39]
The Explanatory Memorandum states that these
changes create simplified rules of evidence which are based on the
successful Canadian Forces summary discipline system.[40] It further states
that
Given the nature of summary proceedings and
allowing for the fact that very few summary authorities are legally
qualified, complex rules of evidence at this level are
inappropriate and can unnecessarily delay and complicate a trial.
It is intended to exclude the operation of more complex evidence
provisions, such as the Evidence Act 1995 (Cth) and to
allow summary trials to occur on a less formal basis while
nonetheless ensuring appropriate safeguards for a fair
trial.[41]
These comments reflect the interaction about the application of
the formal rules of between the 2007 Committee and Mr Geoff Early,
Inspector General, Australian Defence Force, Department of Defence
as follows:
Senator MARK BISHOP What is the
breakdown in the system that is so extraordinary that persuades you
that DLAB07 should take away the rules of evidence in summary
matters?
Mr Earley It is mainly that it
was never really able to be applied to its full extent in the way
that might have been imagined back in 1985. There is the training
burden to raise to a certain level people who are involved in
administering this. We are simply not capable of producing people
with enough knowledge to apply that to its fullest extent in the
sense that a lawyer might be able to. The ADF is looking to try to
improve the system to the benefit of its administration so that
there will be less work around and at the same time enhance and
protect the rights of the individuals who are subjected to
it.[42]
Under item 9 existing section
147 is repealed and the proposed subsection 147(1)
requires that the AMC take judicial notice of all matters within
the general service knowledge of the Court and where applicable,
the jury. In proceedings before a summary authority, the summary
authority must take judicial notice of all matters within the
general service knowledge of the summary authority:
proposed subsection 147(2).
Item 10 revises existing section
149 so that Summary Authority Rules 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 so will be put before the
Parliament.
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.
Proposed section 150 introduces
two new definitions as follows:
- reviewing authority means: an officer or class of officers who
have been appointed by the Chief of the Defence Force or a service
chief to review proceedings of a summary authority , and
- competent reviewing authority means a reviewing authority which
did not exercise any of the powers or perform any of the functions
of a superior authority in relation to the charge that is being
reviewed.
Proposed section 151 is about
reviewing the proceedings of a subordinate summary authority and
sets out the following process:
- as soon as practicable after a subordinate summary authority
convicts a person of a service offence they must give a record of
the proceedings to their commanding officer
- the commanding officer is the reviewing authority
- the commanding officer may obtain advice about the matter from
a legal officer
- their review must be carried out within 30 days or a longer
period depending on the exigencies of service
- after the review is carried out the commanding officer must
give a legal officer the record of the proceedings and the
commanding officer s report of their review
- once the legal officer has received the documents from the
commanding officer they can either:
- refer the matter to a competent reviewing authority or
- notify the commanding officer that the matter will not be
referred to a competent reviewing authority .
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:
- as soon as practicable after a superior summary authority or a
commanding officer convicts a person of a service offence they must
give a record of the proceedings to a competent reviewing
authority
- the reviewing authority must obtain advice from a legal
officer
- their review must be carried out within 30 days or a longer
period depending on the exigencies of service
- after the review is carried out the reviewing authority must
notify the original decision maker and the person who was convicted
of the outcome of the review in writing.
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:
- tell the convicted person that the proceedings are to be
reopened
- take relevant action about the punishment or order and
- report to back the reviewing authority which required the
proceedings to be reopened.
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 subsection 155(2).
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 subsection 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 section 157.
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 Part 2 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.[43] 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.[44]
By way of response Rear Admiral Bonser, Head of the Military
Justice Implementation Team, Department of Defence stated:
the review process, which is based on legal
advice, will provide another avenue by which to correct
inappropriately awarded punishments or orders that may not
otherwise have been the subject of an appeal to the Australian
Military Court, where the Military Judges replace the previous
reviewing officers who were supported by legal officers. The
section 154 reports that Mr Willee referred to only apply to Court
Martials and Defence Force Magistrate trials, which cease on 1
October. They do not apply to summary procedures.[45]
Items 1 to 11 of Part 1 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.
Item 7 inserts proposed paragraph
59(5)(b) so that it is an offence for a defence member or
defence civilian who is outside Australia to administer, or cause
or permit, a prohibited drug to be administered, to himself or
herself. Similarly proposed subsection 59(6)
creates an offence where that occurs within Australia.
Proposed subsections 59(5A) and 59(6A) were in
included in the 2007 Bill. They provide a defence to a charge where
the person proves they had lawful authority for the conduct.
According to the Explanatory Memorandum, a
defence of lawful authority has been included to cover those
circumstances where a person may be able to establish that a
prohibited drug such as morphine, has been administered or self
administered for prescribed medical reasons.[46]
Proposed subsection 59(9)
provides for five definitions as follows:
- cannabis is extended to mean all forms of cannabis, excepting
only cannabis fibre
- controlled drug has the same meaning as in Part 9.1 of the
Criminal Code
- controlled plant has the same meaning as in Part 9.1 of the
Criminal Code
- prescribed quantity in relation to a prohibited drug means:
- for a narcotic substance that is a controlled drug or
controlled plant, a trafficable amount under the Criminal Code
and
- for any other prohibited drug 50 grams
- prohibited drug means a narcotic substance as defined by
subsection 4(1) of the Customs Act 1901 or anabolic
steroid within the meaning of Part 5 of the Poisons and
Drugs Act 1978 of the Australian Capital Territory.
According to the Explanatory Memorandum these changes have been
made to more properly reflect contemporary illicit drugs use. 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.[47]
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.[48]
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.[49]
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.[50]
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.[51]
Schedule 6 amends Part IXA of the DFDA.
Items 1-4 amend existing section
169A of the DFDA by inserting new definitions as
follows:
- discipline officer , being a discipline officer appointed under
section 169B of the DFDA
- junior officer , being:
- for the Navy: an officer who holds a rank of or below the rank
of lieutenant (other than a person with the rank of midshipman
- for the Army: an officer who holds a rank of or below the rank
of captain
- for the Air Force: an officer who holds a rank of or below the
rank of flight lieutenant.
- prescribed defence member , being:
- for the Navy: a member of the Defence Force who holds a rank of
or below the rank of lieutenant
- for the Army: a member of the Defence Force who hold a rank of
or below the rank of captain
- for the Air Force: a member of the Defence Force who holds a
rank of or below the rank of flight lieutenant
but does not include a warrant officer covered
by a determination in force under section 169BA.
- relevant discipline officer has the meaning given by
new section 169BB.
Item 5 inserts
proposed section 169BA which exempts certain
specified warrant officers from being classified as prescribed
defence members and proposed section 169BB which
set out who is a relevant discipline officer in relation to a
prescribed defence member.
According to the Explanatory Memorandum, the
insertion of the definition of prescribed defence member will have
the effect of increasing the jurisdiction of a discipline officer
which will allow minor disciplinary infringements to be dealt with
more quickly and at a level that is more appropriate given the
nature of the infringement.[52]
Item 6 amends section
169C which provide that a relevant discipline officer in
relation to a prescribed defence member , has jurisdiction to deal
with that member.
Items 7 to 12 make consequential
amendments to various provisions of Part IXA to reflect the new
definition of prescribed defence member .
Item 13 inserts proposed section
169F(1) which sets out in table form the punishments that
may be imposed on prescribed defence members (that is, junior
officer, warrant officers and non commissioned officers) in respect
of disciplinary infringements.
Item 14 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 are laid before the Parliament.[53] Under proposed
subsection 169FB(2) the commanding officer of a prescribed
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 16 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.[54]
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:
- charging a member with a service offence under paragraph
87(1)(a)
- summonsing a member to appear before a summary authority under
paragraph 87(1)(b)
- referring a charge to a summary authority under subparagraph
87(1)(c)(i)
- requesting the Registrar of Military Justice to refer the
charge to the AMC under subparagraphs 87(1)(c)(ii) and (iii)
and
- deciding that a class 3 offence is to be tried by the Military
Judge alone under subsection 103A(2).
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.[55]
Item 4 inserts clause 2 of
Schedule 2 of the DFDA. This clause outlines the punishments that
can be imposed by the AMC, and in particular, that the AMC cannot
impose a punishment of greater than 6 months imprisonment in
respect of an offence that was tried by a Military Judge sitting
alone.
Items 5 14 amend the DFDAA. In
particular items 7-12 inserts 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. Detailed
comments have been made about this 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.[56]
However it is worth noting that the submission by
the Office of the Director of Military Prosecutions to the 2007
Committee was that the new powers of the Provost Marshal Australian
Defence Force as provided for in Part 2 of Schedule 7 would need to
be observed to ensure that they do, in fact, expedite the trial of
certain matters as intended.[57]
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:
proposed 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 at the hearing, 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 also, 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.
This addresses the concerns expressed by the 2003 Committee that
all charges can potentially lead to a criminal record which could
have a significant impact on the lives of Service personnel long
after they leave the military.[58]
Item 30 amends existing section
139 of the DFDA to allow an accused the right to request no
personal appearance, subject to approval, in a summary
proceedings.
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. As the
effect of dismissal is that a service member becomes a civilian,
this delay is appropriate where a person has been found guilty and
dismissed whilst in an operational theatre.[59]
Part 8 of Schedule 7 of the Bill
contains consequential technical amendments to the Defence Act, the
DFDA and the DFDA Act.
The transitional provisions in items 1
-7 of Schedule 8 operate so that:
- any service offence committed
- any act or omission that took place
- any charge that was laid or any action taken in respect of that
charge, and
- any proceedings commenced and not finalised (including
proceedings before an examining officer)
under the old law will continue to be dealt with
under that law until completed.
As already stated, 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. [60]
The 2003 Committee made forty recommendations for change. Thirty
of the forty were accepted in whole or in part by both the previous
and current Governments. This Bill is a direct response to those
recommendations. 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 .[61] This 2008 version of
the Bill delivers that ground up reform.
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. The ADF has asked for
simpler rules of evidence. Although the formal rules of evidence
will not have to be applied, the Bill requires that summary
authorities comply with the rules of natural justice and the basic
principles of the rules of evidence relating to relevance,
reliability, weight and probative value.
Given the sweeping changes that are made to the system of
military justice within this Bill its implementation should be
carefully monitored.
Paula Pyburne
8 March 2008
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top