Bills Digest no. 115 2014–15
PDF version [800KB]
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.
Genevieve Butler
Law and Bills Digest Section
10 June 2015
Contents
Purpose
of the Bill
Structure of the Bill
Background
Senate Standing Committee for Selection of Bills
Senate Standing Committee for the Scrutiny of Bills
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Appendix
International Covenant on Civil and Political Rights
Date introduced: 26
March 2015
House: House of
Representatives
Portfolio: Defence
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Defence Legislation
(Enhancement of Military Justice) Bill 2015 (the Bill) is to amend legislation
relating to the military justice system. The Bill contains amendments to the:
The key changes introduced by the Bill are:
-
extending the period of appointment for another two years
of the current Chief Judge Advocate and full-time Judge Advocate,[4]
thus enabling the continued operation of superior tribunals while deliberation
takes place about further reforms to the military discipline system[5]
- the
creation of two new service offences[6]
being ‘assault occasioning actual bodily harm’ and ‘unauthorised use of a
Commonwealth credit card’
- clarifying
the character and status of service convictions as offences against the
Commonwealth
- dealing
with abuse of military authority by clarifying the elements of the service
offence of ‘commanding or ordering a service offence to be committed’ under
section 62 of the DFDA
- removing
provisions regarding the trial of ‘old system offences’
- removing
recognizance release orders[7]
and replacing them with a system which enables the fixing of non‑parole
periods so as to address the lack of capacity to enforce those orders
- the
statutory recognition of the Director of Defence Counsel Services[8]
(DDCS)
- changing
how maximum fines are expressed in the DFDA, to refer to the penalty
units system rather than a dollar amount, for consistency with current practice
under the criminal justice system[9]
and
- correcting
technical errors which in certain cases currently have the effect of
potentially restricting the ability of commanding officers to refer charges to
the Director of Military Prosecutions (DMP).
Minister for Defence, Kevin Andrews, has described the
amendments introduced by this Bill as modest, while pointing out their importance
to the functioning of the military discipline system and the overarching
military justice system.[10]
The Bill contains three schedules:
- Schedule
1 clarifies the legal character and status of service convictions under
Commonwealth law. It creates two new service offences: ‘assault occasioning
actual bodily harm’ and ‘unauthorised use of a Commonwealth credit card’
- Schedule
2 provides for statutory recognition of the DDCS, who is responsible for
providing legal representation to accused persons and
- Schedule
3 provides for the extension by another two years of the appointment of the
current Chief Judge Advocate.
Australia’s military justice system—an
overview
Robust legal systems and structures do not exist in a
vacuum, rather they are anchored in the particularities and peculiarities of
the contexts in which they operate. The military justice system is thus shaped
and informed by particular objectives and norms that are specially and
necessarily additional to those of the civilian criminal justice system.
The military justice system underpins the discipline and
command structures of the Australia Defence Force (ADF).[11]
It aims to balance discipline with the rights of individuals, ensuring that ADF
members and defence civilians[12]
work in an ‘ordered but equitable’ environment.[13]
Australia’s military justice system is considered critical to maintaining
command, retaining employees and upholding the reputation of the defence
forces, and to enhancing operational effectiveness.[14]
The military justice system provides the ADF with an
Australian legal framework that can be applied on operations globally. It
applies to all ADF members and to defence civilians in times of
peace and war, whether in Australia or overseas. ADF members must maintain the
high level of discipline required on operations at all times.[15]
The disciplinary and administrative
systems
The military justice system has two distinct but interrelated
streams: the discipline system and the administration system. These streams
provide the framework for disciplinary investigations and prosecution of
offences committed under the DFDA, and the maintenance of
professional standards in the ADF and investigation of occurrences such as
accidental deaths of ADF personnel, under the administrative system.[16]
The discipline system is largely influenced and controlled by the rules and
principles of the criminal law, whereas the administrative system is subject to
administrative law principles, especially the fundamental principles comprising
natural justice.[17]
The administrative system enables the ADF to take action
against members whose professional conduct falls below the requisite standard,
but who have not committed an offence. The main components of the
administrative system are:
- adverse
administrative action
- administrative
inquiries and
- a
member’s right to complain.[18]
The Military Discipline system
The DFDA, which took effect on 3 July 1985, was enacted
to maintain and enforce military discipline, and provides the basis for the
existing military discipline system. It includes offences that are uniquely
military as well as other offences that occur in a military environment.[19]
The DFDA provides for the investigation of disciplinary offences,
types of offences, available punishments, the creation of service tribunals,
trial procedures before service tribunals, and rights of review and appeal.[20]
Offences by ADF members are prosecuted under the DFDA,
within the military justice system, when the offence substantially affects the
maintenance and ability to enforce service discipline in the ADF. Otherwise,
criminal offences or other illegal conduct are referred to the police and other
civil authorities.[21]
The DFDA created service tribunals, with the power to
hear matters and try ‘charges’ of ‘service offences’.[22]
The DFDA established two different levels of service tribunals: Courts Martial
and Defence Force Magistrates, and Summary Authorities.[23]
Service offences
A service offence is an offence created by the DFDA.
There are three categories of service offences: imported criminal offences;
offences with civilian criminal equivalents; and unique military offences.[24]
(1) Imported criminal offences
This category involves offences imported from civilian
criminal law, such as murder, manslaughter and theft of non-service property. 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).[25]
For serious offences such as treason, murder, manslaughter
or sexual assault, a service tribunal may hear the matter only with the prior
consent of the Commonwealth Director of Public Prosecutions (DPP).[26]
(2) Offences with civilian criminal equivalents
This category encompasses offences that are similar or
identical to civil offences, but that relate to service personnel or equipment,
such as assault of a superior or subordinate,[27]
destruction or damage of service property,[28]
or dealing in narcotics on a base.[29]
Such offences are investigated by military police and may be dealt with by
service tribunals.[30]
(3) Unique military offences
This category involves offences unique to the defence
forces, such as absence without leave,[31]
disobedience of a command[32]
and endangering morale.[33]
Offences in this category are investigated by military police and may be dealt
with by service tribunals.[34]
Courts Martial and Defence Force Magistrates
Serious offences with civilian criminal equivalents and unique
military offences are investigated by military police and may be dealt with by
either courts martial or Defence Force Magistrates. Courts Martial and Defence
Force Magistrates proceedings are formal legal proceedings comprising two main
phases: the trial, and, if the accused person is found guilty and convicted of
an offence, sentencing action under Part IV of the DFDA.[35]
A Court Martial is heard by presiding officers of a rank
that is not lower than the rank of the accused, and a judge advocate that is a member
of the Judge Advocates’ panel.[36] Judge
Advocates assist Court Martial members with the application of military law. A
Court Martial
does not have
jurisdiction to try a charge of a custodial offence.[37]
Defence Force Magistrates provide an
alternative to Courts Martial for dealing with serious offences.[38] The
Judge Advocate General appoints officers who are members of the Judge Advocates’
panel to be Defence Force Magistrates.[39]
A Defence Force Magistrate has the same jurisdiction and powers as a restricted
court martial, including the powers of the Judge Advocate of a restricted Court
Martial. [40]
Judge
Advocate General
The office of the Judge Advocate General (JAG)
was created by Part XI of the DFDA. The holder of the office must be or
have been a judge of a federal court or a state or territory supreme court.[41] The functions of the JAG
include making procedural rules for Service tribunals, providing the final
legal review of proceedings within the ADF, participating in the appointment of
Judge Advocates, Defence Force Magistrates, Presidents and members of Courts Martial,
and reporting on the operation of laws relating to the discipline of the ADF.[42]
A Judge Advocate sits as a Judge Advocate and Defence Force Magistrate
and provides assistance to the Judge Advocate General.
Summary Authorities
A Summary Authority is the lower level of service tribunal
established under the DFDA, which deals with less serious offences. Summary
authority proceedings are normally closed.[43]
Summary Authorities are superior officers who have limited powers of punishment.[44]
Discipline Officers may also impose punishments for minor offences.[45]
Summary Authorities usually do not have legal qualifications,
unlike judge advocates in Courts Martial or Defence Force Magistrates. Matters
handled at this level are expected to be dealt with expeditiously.[46]
Military justice since 2005 – the
attempt to introduce an Australian Military Court
To assist readers to understand the context in which the
Bill is being introduced, this part of the Digest provides a brief overview of
the changes to the military justice system that have occurred since 2005. The
key element is that, following an attempt to introduce an Australian Military
Court, which was struck down by the High Court, the military justice system
remains in a provisional mode. While a final framework is still being
considered, Schedule 3 of the Bill extends the operation of the interim
arrangements that have now been in place for almost six years.
2005—Effectiveness of Australia's
military justice system
In 2005, following its lengthy inquiry into the
effectiveness of Australia's military justice system,[47]
the Senate Foreign Affairs, Defence and Trade Committee (the Committee) formed
the view that military tribunals lacked the requisite independence from
military command structures, as military justice was being administered by
military tribunals within that chain of command.[48]
The Committee noted in particular the human rights concerns raised by those
arrangements. These were identified by Justice Burnett as:
... the lack of structural independence of the principal
pillars of the courts martial system, that is, the independence of the
convening authority; the prosecutor and person who prefers the charges; the
judge advocate; the courts martial panel; and the reviewing authority.[49]
Command had input into each of these matters, exposing the
system to the perception that it lacked internal structural independence and
thus possibly contravened Australia’s commitment to the fundamental right of a
fair and impartial trial in respect a service offence by any of its service
personnel.[50]
The Senate Committee recommended significant reforms to the Australian military
justice system, including the creation of a military court that would comply
with the Constitutional requirements for a federal court. The then Coalition
Government agreed[51]
that the independence and proper operation of Australia’s military justice
system may be improved by establishing a military tribunal—the Australian
Military Court—which would operate independently of the chain of command.[52]
2006—Establishing the Australian
Military Court
The Defence Legislation Amendment Act 2006[53] established a permanent Australian Military Court
(AMC) under the DFDA. The role of the AMC was to replace the existing
system of Courts Martial and Defence Force Magistrates.[54]
2009—High Court rules AMC
unconstitutional
Unfortunately, the Government did not adopt the Committee’s
recommendation in its entirety—that is, the AMC was not established as a court
in accordance with Chapter III of the Constitution but instead was based on the
defence power in section 51(vi). Concerns were expressed from the outset that
the AMC might be constitutionally invalid.[55]
In its 2009 decision in Lane v Morrison[56]
the High Court struck down the legislation establishing the AMC. This had the
effect of placing the 171 cases the AMC had tried in doubt. The essence of the
High Court’s reasoning was that the AMC was operating outside the chain of
command and, therefore, was impermissibly exercising judicial power as the
Australian Military Court was not a proper Chapter III court for constitutional
purposes.[57]
Since the High Court ruling, the Government has found it
difficult to settle on a model that addresses key outstanding issues in
relation to the reform of military justice and the provision of an independent
military discipline tribunal.
The Military Justice (Interim Measures) Act (No. 1) 2009
The Military
Justice (Interim Measures) Act (No. 1) 2009 (2009 Interim Act)
essentially returned the service tribunal system to its format prior to the
creation of the AMC.[58]
Then Parliamentary Secretary for Defence Support, Dr Mike Kelly, told
Parliament:
As an interim measure, defence is intending
to broadly re-establish the service tribunal system that existed before the
creation of the Australian Military Court by reinstating the Defence Force
Discipline Act 1982 prior to the amendments in 2006. This will re-establish
trials by courts martial and Defence Force magistrates; reinstate the statutory
position of Chief Judge Advocate, the judge advocates’ panel and the Registrar
of Military Justice; reinstate the system of reviews and petitions in respect
of both summary trials and trials by courts martial or Defence Force
magistrates; and reinstate the powers of reviewing authorities.[59]
2010 and 2012—Establishing the
Military Court of Australia
In 2010 the then Australian Labor Party (Labor) Government
introduced the Military Court of Australia Bill 2010 (the 2010 Bill) into the Parliament
in order to establish the Military Court of Australia.[60]
The aim of the legislation was to create a Constitutionally-valid court—the
Military Court of Australia—to hear serious military offences, but to leave the
less serious offences for internal military control. The 2010 Bill lapsed on 19
July 2010 when the Parliament was prorogued.
The lapsing of that Bill necessitated an extension of time
for the operation of the interim measures.[61]
As a result, the Military
Justice (Interim Measures) Amendment Act 2011[62]
(2011 Interim Act) was enacted to amend the 2009 Interim Act to
extend the measures for a further two years to September 2013.[63]
In 2012 the Labor Government introduced the Military Court
of Australia Bill 2012 (the 2012 Bill) into the Parliament.[64]
The 2012 Bill was broadly similar to the 2010 Bill and dealt with the shape and
structure of the Australian Military Court.[65]
A companion Bill, the Military Court of Australia
(Transitional Provisions and Consequential Amendments) Bill 2012 was introduced
into the Parliament on the same day.[66]
Both 2012 Bills lapsed when the Parliament was dissolved on 5 August 2013.
2013—Military Justice (Interim
Measures) Amendment Bill 2013
In 2013 the Military Justice (Interim Measures) Amendment
Bill 2013 again amended the 2009 Interim
Act to extend the appointment, remuneration, and entitlement arrangements
of the Chief Judge Advocate and Judge Advocates by an additional two years.[67]
The Bill received Royal Assent on 1 July 2013 (2013 Interim Act).[68]
When the 2009 Interim
Act was enacted, it provided a fixed tenure of up to two years for both the
Chief Judge Advocate (CJA) and full-time Judge Advocates.
Both the 2011 Interim Act and the 2013 Interim
Act extended the periods of the appointment of the CJA and full‑time
Judge Advocates by two years, so that the current period of appointment is up
to six years.[69]
The current arrangements expire in September 2015.
The Government considers that it is necessary to further
extend the appointment, remuneration and entitlement arrangements for the CJA
and Judge Advocate for an additional two year period: ‘The preservation of the
appointment arrangements is necessary to continue the effective operation of
the superior tribunal system pending a decision in respect of a permanent
system to try serious service offences’.[70]
Contentious issues in military
justice
Separate judicial sphere
Much attention has been paid to the consequences of a tension
between the nature of military discipline and the separation of judicial and
executive powers, embedded in Chapter III of the Constitution: ‘Military
discipline involves the imposition of punishment ... upon a judgment that a
person is guilty of an offence. This is a function which is normally the exclusive
preserve of the courts’.[71]
The High Court of Australia has affirmed the recognition
within our legal system of the ability of a military service tribunal to
exercise power of a judicial nature in respect of persons subject to military
law, which is separate and distinct from the judicial power of the Commonwealth
under Chapter III of the Constitution.[72] In a series
of seminal cases on military justice[73]
the High Court established that:
... service tribunals can exercise jurisdiction over defence
members for service offences, that may be substantially similar to civil
offences, provided that the proceedings can be regarded as substantially
serving the purpose of maintaining and enforcing service discipline. The
service tribunals can stand outside Ch III [of the Constitution] and the disciplinary
code created by the DFDA was constitutional.[74]
[emphasis added]
In Re Tracey; Ex parte Ryan,[75] Re Nolan; Ex parte Young
and Re Tyler;[76]
Re Tyler: Ex parte Foley,[77]
the High Court accepted that punishment
for offences against military discipline could validly be imposed by service
tribunals that were not Chapter III courts.[78]
From those cases, several strong streams of judicial opinion emerged.[79]
The Court confirmed again in 2007 in White v Director
of Military Prosecutions[80]
that there is a sphere in which the Commonwealth may create service offences
and provide for their trial and punishment by service tribunals, rather than
courts operating under Chapter III of the Constitution.[81]
The High Court has consistently followed the principles
established in R v Cox; Ex parte Smith[82]
that the administration of military justice by military tribunals constitutes
an exception to Chapter III. In that case, Dixon J observed:
To ensure that discipline is just, tribunals acting
judicially are essential to the organisation of an army or navy or air force.
But they do not form part of the judicial system administering the law of the
land.[83]
In the 2011 case Haskins v Commonwealth the majority
in the High Court summarised the principle:
It is to be borne at the forefront of consideration of the
plaintiff’s arguments about the application of Ch III of the Constitution that
this Court has repeatedly upheld the validity of legislation permitting the
imposition by a service tribunal that is not a Ch III court of punishment on a
service member for a service offence. Legislation permitting service tribunals
to punish service members has been held to be valid on the footing that there
is, in such a case, no exercise of the judicial power of the Commonwealth.
Punishment of a member of the defence force for a service offence, even by
deprivation of liberty, can be imposed without exercising the judicial power of
the Commonwealth. Because the decisions made by courts martial and other
service tribunals are amenable to intervention from within the chain of
command, the steps that are taken to punish service members are taken only for
the purpose of, and constitute no more than, the imposition and maintenance of
discipline within the defence force; they are not steps taken in exercise of
the judicial power of the Commonwealth.[84]
Trial by jury
One of the consequences of this separate judicial sphere
is that there is no right to trial by jury, although serious offences may be
dealt with by a Courts Martial panel.
In White, the plaintiff, a Chief Petty Officer in
the Royal Australian Navy, was charged with offences involving indecent
assault, which were offences against the ordinary criminal law, as adopted by section
61 of the DFDA, rather than service-related offences created by that
Act. The incident had occurred in Victoria while the plaintiff was out of uniform
and not on duty. However, the victims of the alleged offences were other
members of the Defence Force of lower rank than the plaintiff, providing a
clear connection with military duty and discipline.[85]
The Court held that the DFDA was a valid exercise
of the defence power in section 51(vi) of the Constitution and service
tribunals established under that Act validly exercised judicial power standing
outside Chapter III.[86]
One of the issues raised by the plaintiff was that if the
offences had been prosecuted under the applicable criminal law of Victoria[87]
the offences of indecent assault would carry a maximum penalty of ten years
imprisonment, and she would have been entitled to trial by jury.[88] Similarly, under the criminal law of the
Australian Capital Territory (as applicable in the Jervis Bay Territory)
applied to the plaintiff as a defence member, the charges of indecent assault
would involve offences punishable by imprisonment for five years, which would
have entitled the plaintiff to trial by jury, if she was disputing the charges
in either of the territories. (Section 61 of the DFDA enables all
Commonwealth offences, and almost all ACT offences in their application to the
Jervis Bay territory, to be tried as Territory offences by an appropriate
Service tribunal.[89])
White argued that she wished to exercise her ‘constitutional
right to have the alleged indictable offences the subject of trial by jury’.
Under the DFDA, the plaintiff had no entitlement to a jury trial, as envisaged
by section 80 of the Constitution for indictable offences.[90]
(In the federal jurisdiction, indictable offences are those punishable by more
than 12 months imprisonment; while it varies in other jurisdictions).[91]
A majority of the High Court dismissed White’s application.[92]
Kirby J outlined the divergence of opinion on this issue. A
majority of the High Court has maintained the view that guarantee of ‘trial by
jury’ in section 80 of the Constitution was limited to cases in which
the Parliament and the Executive provide for the commencement of prosecution by
filing an indictment.[93]
However, a minority ‘has rejected this view as inconsistent with the function
of section 80 as providing a guarantee of jury trial which could not so easily
be circumvented’.[94]
In his 2013 examination of the military justice system,
Federal Circuit Court Judge Michael Burnett addressed this issue:
Although a courts martial panel is not a jury, it exercises a
similar role and also determines punishment. In a courts martial, a panel of
officers, assisted by the Judge Advocate who issues binding directions on law,
examines the evidence and makes findings of guilt or otherwise. For lesser
offences a Judge Advocate sits alone, styled as a Defence Force Magistrate. The
process largely reflects the modern criminal trial. (emphasis added)[95]
Justice Burnett noted that there is still debate over
whether the legislative styling of an indictable offence as a service offence is
sufficient to exclude an entitlement to a service member of the section 80
constitutional right to trial by a jury:
If the worst fears were to be realised the ADF would not only
have its discipline matters subject to trial by civilian judge but also by
civilian jury. That is not to criticise such an outcome, as it would
unquestionably provide the fairest possible process for ADF members. However,
that may not produce the best outcome from a discipline perspective...
The reality is that service discipline requires something
more than the application of civilian processes to offences committed in a
service environment. The existence of service tribunals simply recognises the
peculiar needs of the defence environment that pertain to the maintenance of service
discipline.[96]
In an analysis of the proposal to introduce an Australian
Military Court in 2012[97],
the following summary was provided by Bar News:
Since federation, Australia’s military forces have employed a
disciplinary system which has, at its apex, the trial of serious offences by
court martial. In a trial by court martial, the judge advocate and the panel
of military officers perform substantially the same function as a judge and
jury in a civilian criminal trial.
That is to say, the judge advocate decides all questions of
law and gives the panel directions of law with which they must comply.
The panel is the sole judge of the facts and decides the
ultimate question of whether the accused is guilty or not. If the accused is
found guilty, the panel determines the appropriate punishment. This aspect of
the military justice system has served the ADF well, especially since the
introduction of a statutorily independent director of military prosecutions
(DMP) and registrar of military justice in 2005.[98]
At the time, the Government noted that there was no
policy decision that it would be better to exclude military officers
from their role in a court martial panel, but, rather, ‘a jury in a
Chapter III court could not be restricted to Defence members and a
civilian [jury] would not necessarily be familiar with the military context
of service offences’.[99]
Justice Burnett also discussed concerns regarding
the institutional independence of the ADF courts martial system following human
rights complaints made in allied jurisdictions which are signatories to the Convention
for the Protection of Human Rights and Fundamental Freedoms and the International
Covenant on Civil and Political Rights.[100]
He noted that these concerns were considered by the Canadian Court of Appeal[101] and the
European Court of Human Rights.[102]
The human rights concerns relate to the lack of structural independence of the
principal pillars of the Courts Martial system: the independence of the
convening authority; the prosecutor and person who prefers the charges; the
Judge Advocate; the courts martial panel; and the reviewing authority.[103]
Justice Burnett noted that command had input into each of these
matters: ‘That fact lent support to concern that the system lacked internal
structural independence’.[104]
Hence the main concern with the current military justice system is the fundamental
right to a fair and impartial trial, rather than the right to a trial by jury.
A right to a jury trial does not necessarily equate to a right to a fair and
impartial trial.
In its Report No. 5 of 2015, released on 14 May 2015,
the Senate Standing Committee for Selection of
Bills resolved that the Bill would not be referred to a Committee
for inquiry and report.[105]
In its Alert
Digest No. 5 of 2015, released on 13 May 2015, the Senate Standing
Committee for the Scrutiny of Bills made no comment on the Bill.[106]
According to the Explanatory
Memorandum ‘there will be no net impact on consolidated revenue’.[107]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[108]
Human Rights Implications
The Government considers that the DFDA and the Bill
are consistent with the following rights under the International Covenant on
Civil and Political Rights (ICCPR):
- the
right to a fair trial, including:
- a
fair hearing by a competent, independent and impartial tribunal
- the
presumption of innocence
- minimum
guarantees in criminal proceedings (Article 14)[109]
- freedom
from arbitrary detention (Article 9)
- the
right to humane treatment whilst in detention (Article 10) and
- the
right to privacy (Article 17).[110]
The Statement of Compatibility provides the following
overview:
The purpose of Australia’s military discipline system is to
support military commanders in maintaining and enforcing service discipline to
enhance operational effectiveness. A military discipline system that supports
the authority and effectiveness of commanders is of vital importance in the
efficient, effective, and proper operation of the ADF...
The Bill operates to make military justice enhancements to
the existing military discipline system and to extend the appointments of the
current CJA and full-time Judge Advocate, who contribute to the effective
operation of the military justice system and the dispensation of military
discipline.
The Bill reflects a positive human rights milieu.[111]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights (Human
Rights Committee) considered the Bill in the Twenty-second report of the
44th Parliament, published on 13 May 2015.[112]
The Human Rights Committee considered that extending the
operation of the existing military justice system through extending the
appointment period for the Chief Judge Advocate and Judge Advocates engages and
may limit the right to a fair hearing and fair trial.[113]
The Human Rights Committee commented that:
The statement of compatibility does not assess whether
extending the operation of the military system of justice is compatible with
the right to a fair trial. Rather, it has an overview statement of the human
rights implications of the Bill as a whole ...[114]
It was also noted that the statement of compatibility did
not provide information as to what steps are being taken to establish a
permanent system of military justice.[115]
The Human Rights Committee confined its comments to the
amendments in Schedule 3 of the Bill, noting that ‘there are other
provisions in this Bill that relate to the system of military justice, however,
as they do not in themselves expand the operation of the system, the committee
makes no further comment in relation to them’.[116]
The Human Rights Committee’s concerns regarding the extension of appointments are
further discussed in relation to Schedule 3 of the Bill in the ‘Key
issues and provisions’ section of this Digest, below.
Schedule 1
Schedule 1:
- creates
two new service offences
- clarifies the elements of the existing service offence of
‘commanding or ordering a service offence to be committed’
- clarifies
the legal character and status of service convictions under Commonwealth law
- removes
references to ‘old system offences’ and
- removes
the ability for service tribunals to impose recognizance release orders and
instead allows them to impose non-parole periods.
New service offence of ‘assault
occasioning actual bodily harm’
Item 10 of Schedule 1 of the Bill inserts proposed
section 33A into the Defence Force Discipline Act 1982 (DFDA)
to introduce a new service offence of ‘assault occasioning actual bodily harm’.[117]
Current service offences under the DFDA involving
assault include:
- section
25—assaulting a superior officer
- section
30—assaulting a guard
- section
33—assaulting another person
- section
34—assaulting a subordinate and
- section
49A—assault against an arresting person.
The existing assault provisions do not include ‘aggravated’
forms of assault. Assault occasioning actual bodily harm is presently charged
as a Territory offence under section 61 of the DFDA,[118]
using the Crimes Act 1900 (ACT).[119]
Section 61 of the DFDA enables all Commonwealth offences, and most ACT
offences in their application to the Jervis Bay territory, to be tried as Territory
offences by an appropriate service tribunal.[120]
The lack of a specific DFDA offence of assault
occasioning actual bodily harm means that the Director of Military Prosecutions
(DMP) has to include in a single charge sheet Territory offences,
with lesser DFDA offences in the alternative. This is because, if, on
the facts the elements of the more serious offence are not made out, the
accused person can be convicted of the alternative offence. However, different
criminal responsibility rules are applied to the different offences, due to the
difference in ACT and Commonwealth laws and the DFDA. This means that a
single set of facts is weighed against two separate standards, ‘leading to
confusion, complexity and duplicated effort’.[121]
The new service offence is designed to address existing
difficulties in laying charges, particularly the application of criminal
responsibility rules in the context of the existing assault provisions under
the DFDA. The proposed offence will complement the common assault
provisions in existing section 33. Proposed section 33A provides that a
person who is a defence member or a defence civilian is guilty of an offence if
they assault another person causing actual bodily harm where the offence was
committed by the person on service land, in a service ship, service aircraft or
service vehicle, or in a public place.
Under section 10 of the DFDA, Chapter 2
of the (Commonwealth) Criminal Code, which sets
out the general principles of criminal responsibility, applies to all service
offences.[122]
Proof of criminal responsibility is addressed in Division
2 of the Criminal Code.
A legal burden of proof (the burden of proving the existence of the
matter) on the prosecution must be discharged beyond reasonable doubt.[123]
The term ‘actual bodily harm’ is not defined in the DFDA.
The NSW Court of Criminal Appeal defined the term ‘actual bodily harm’ in the
2009 case of McIntyre v R.[124] Justice
Johnson explained:
... it is something less than “grievous bodily harm”,
which requires really serious physical injury, and “wounding”, which requires
breaking of the skin ... The distinction between grievous bodily harm and actual
bodily harm involves an assessment of the degree of harm done, with one being
more serious than the other... Bruises and scratches to a victim are typical
examples of injuries that are capable of amounting to actual bodily harm... If a
victim has been injured psychologically in a very serious way, going beyond
merely transient emotions, feelings and states of mind, that would likely
amount to actual bodily harm.[125]
Australian courts have generally taken ‘harm’ to mean
physical or serious psychological injury, and the injury might be external or
internal.[126]
The Explanatory Memorandum notes that a charge for assault
occasioning actual bodily harm would not be warranted unless there was a
significant degree of force applied that resulted in injury to the victim. It
must be established that the assault directly caused actual bodily harm to the
person—normally a visible injury needs to be present to show that bodily harm
occurred, which would include a bruise or a scratch.[127]
Including the offence of assault occasioning actual bodily
harm as a service offence in the DFDA enables the application of
military-specific aggravating factors, such as a person’s rank, which has
implications for the sentencing of offenders.
Section 70 of the DFDA sets out the sentencing
principles for Service tribunals. Under subsection 70(1), Service tribunals must
have regard to the principles of sentencing applied by the civil courts and the
need to maintain discipline in the ADF.
Mitigating or aggravating circumstances to be
taken into account in sentencing a convicted person include:
- the
person’s rank, age and maturity
- the
person’s physical and mental condition
- the
person’s personal history
- the
absence or existence of previous convictions for service offences, civil court offences
and overseas offences
- the
person’s relationship with any victim(s)
- the
person’s behaviour before, during and after the commission of the service
offence and
- any
consequential effects of the person's conviction or proposed punishment.[128]
Proposed section 33A does not include a penalty for
aggravated offences. Rather, it sets a maximum penalty of five years
imprisonment for the offence of assault occasioning actual bodily harm. By
comparison, section 24 of the Crimes Act 1900 (ACT), which presently
governs the offence, sets the maximum penalty for assault
occasioning actual bodily harm as five years, while the maximum penalty for an
aggravated offence against this section is imprisonment for seven years. In
addition, section 48A of the Crimes Act applies to section 24, which provides
that an assault against a pregnant woman which causes the loss of, or serious
harm to, the pregnancy, or the death of, or serious harm to, a child born alive
as a result of the pregnancy, is guilty of an aggravated offence.
This service offence falls within the ADF discipline
system, hence the offences would be tried by an appropriate Service tribunal.
If an accused is tried under the DFDA rather than in the ordinary
civilian criminal jurisdiction, they do not have a trial by jury.
A charge for assault occasioning actual bodily harm under
the DFDA rather than the Crimes Act 1900 (ACT) will also
have implications for potential appeals. The DFDA provides for
rights of review and appeal. Section 152 of the DFDA provides for automatic
review by a reviewing authority of a conviction for a service offence by a service
tribunal (Court Martial, Defence Force Magistrate or Summary Authority).
Under section 20 of the Defence Force Discipline
Appeals Act 1955,[129]
a convicted person, meaning a person who has
been convicted by a Court Martial or a Defence Force Magistrate, may appeal to
the Defence Force Appeals Tribunal against his or her conviction, but an appeal
on a ground that is not a question of law may not be brought except by leave of
the Tribunal.
New service offence of ‘unauthorised use of a Commonwealth credit card’
Item 12 inserts proposed section 47Q into
the DFDA to provide that a person who is Defence member or a Defence
civilian is guilty of an offence if the person uses a Commonwealth credit card,
or a Commonwealth credit card number, to obtain cash, goods or services
otherwise than for the Commonwealth.
The amendment is due to the repeal of the Financial
Management and Accountability Act 1997 (FMAA), which had provided
for the offence of the misuse of a Commonwealth credit card in section 60.[130]
The FMAA was repealed by the Public Governance, Performance
and Accountability Act 2013 (PGPA),[131]
which commenced on 1 July 2014. From that date, credit card misuse cases have
been prosecuted under the fraud provisions of the Criminal Code Act 1995
or the Crimes Act 1914. However, some legal and evidentiary problems have
arisen under that legislation. The new service offence is adapted to be
consistent with the DFDA and military law.[132]
Definition
A Commonwealth credit card is defined in proposed
subsection 47Q(3), as a credit card issued to, or made available for use
by, the Commonwealth to enable the Commonwealth to obtain cash, goods or
services on credit.
The inclusion of the phrase ‘made available for use by’ in
the definition is intended to cover situations where a credit card has been
provided to a Defence member or a Defence civilian for use by the Commonwealth.
This includes situations where the ADF has jurisdiction over a Defence member
who, while on exchange, secondment or attachment, or Defence member or Defence
civilian who while on deployment, is provided with a foreign government credit
card for use in the course of their duties and allegedly misuses it.[133]
Where a Status of Forces Agreement or arrangement enables the ADF to exercise
primary discipline jurisdiction where the alleged foreign state offence has an
Australian equivalent, Australian authorities can argue that the accused Defence
member or Defence civilian may be prosecuted under this provision.[134]
It also extends the provision to situations where a state or territory
government authority or body, or a corporate entity, has provided a Defence
member with a credit card for use by the Commonwealth, such as when the ADF
provides aid or assistance to the civil authorities or the community, and the Defence
member is alleged to have misused the card.[135]
Statutory defence
The Bill includes a statutory defence of ‘lawful
authority’. Under proposed subsection 47Q(2), an offence will not have
been committed if the defendant has ‘lawful authority’ to use the credit card
in the manner in which it was used. The defendant will bear the evidential
burden, in accordance with subsection 13.3(3) of the Criminal Code. An
evidential burden requires the defendant to adduce or point to ‘evidence that
suggests a reasonable possibility that the matter exists or does not exist’.[136]
If the defendant meets the evidential burden, the prosecution will then be
required to disprove the defence beyond reasonable doubt. ‘Lawful authority’ includes
authority derived from a Commonwealth law and military command authority or
authority derived from the power of military command.[137]
Reduced penalty
The maximum penalty under the former FMAA provision
for unauthorised use of a credit card was seven years imprisonment. The new
service offence under the DFDA will have a maximum penalty of five years
imprisonment.[138]
Prescribed offence regime
Division 2 of Part VII of the DFDA deals with
Summary Authorities. As mentioned above, a Summary Authority is the lower level
of service tribunal established under the DFDA, which deals with less
serious offences. A summary authority has jurisdiction to hear a charge against
specified personnel for breach of a service offence that is not a ‘prescribed
offence’.[139]
Section 104 sets out a definition of ‘prescribed offence’ to include offences
such as murder and treason. The definition also allows other ‘prescribed
offences’ to be set out in the Defence Force Discipline Regulations 1985 (DFDR).
These additional ‘prescribed offences’ appear in regulation 44 of the DFDR,
which provides (as currently relevant) that a service offence punishable by
more than two years imprisonment is a ‘prescribed offence’ and therefore not
eligible to be tried by a summary authority. However, it goes on to expressly
provide that this does not include the now-repealed offence under section 60 of
the FMAA. This means that the FMAA offence was able to be tried by a
summary authority, even though it had a maximum penalty of more than two years
imprisonment. A consequential amendment to the DFDR will be necessary to remove
the reference to the FMAA provision and include a reference to the new DFDA
provision to permit a summary authority to try minor instances of the offence.[140]
Courts Martial and Defence Force Magistrates will deal
with the more complex and serious charges of credit card misuse.[141]
As the offences will be tried by service tribunals rather than under the
ordinary criminal law system, persons charged with offences under this
provision will not have access to a trial by jury. Persons convicted by a Court
Martial or Defence Force Magistrate will automatically have their convictions
reviewed by a reviewing authority.[142]
They may also appeal to the Defence Force Appeals Tribunal against a conviction
on a question of law and, if the appeal is not a question of law, they may seek
leave of the Tribunal to appeal.[143]
Service offence of
‘commanding or ordering a service offence to be committed’
The Bill clarifies the elements of the
existing service offence of ‘commanding or ordering a service offence to be committed’
under section 62 of the DFDA.
Section 62 provides that:
(1) A defence member is
guilty of an offence if:
(a) the
member commands or orders a person to engage in conduct; and
(b) the conduct would
constitute the commission of a service offence.
(2) Strict liability
applies to paragraph (1)(b).
The Judge Advocate General raised concerns with the
operation of section 62 in the 2009 and 2010 Annual Reports, stating in 2010
that:
S. 62 makes no specific provision for the attribution of any
fault elements required to constitute the ordered conduct a service offence. Similarly,
it is unclear as to the way in which any statutory defence applicable to the
ordered conduct might apply to an offence against DFDA s.62.[144]
The Judge Advocate General also noted that Defence Legal
had raised these issues with the Office of Parliamentary Counsel, with a view
to recommending legislative amendments.[145]
The Explanatory Memorandum notes that ‘the
current wording of section 62 has caused some confusion with respect to which
fault elements are required to constitute the offence of commanding or ordering
a service offence to be committed’.[146]
It also agrees with the Judge Advocate General that ‘it has been unclear which
statutory defences are available to a person charged with this offence’.[147]
Item 14 of Schedule 1 of the Bill repeals and
replaces section 62. Proposed section 62 adds several new
elements.
Recklessness
Proposed subsection 62(2) of the DFDA provides
that for the defence member to be guilty, they must be reckless as to
the commission of the offence.[148]
The Explanatory Memorandum notes that:
The default fault element of recklessness is considered
necessary to deal with situations where the person does not necessarily intend
that a service offence be committed by their command or order, but the person
is aware of the substantial risk of it and gives the command or order
regardless. It would also deal with the related situation where a person does
not explicitly command or order a service offence be committed, but it is clear
from the person’s language and/or actions, that he or she anticipates or
expects that the offence will be committed.[149]
Service offence does not need to be
committed
Under proposed section 62, an offence is committed
when the command or order that a service offence be committed is given—that is,
it is not necessary that a service offence actually be committed. Under proposed
subsection 62(4) a defence member may be found guilty of the offence
even if the relevant service offence has not been committed (including if it
was attempted or commenced, but not completed) or it was impossible to commit
the relevant service offence. This is because the essence of the offence is the
abuse of military authority by a person superior by rank, office, or
appointment, not the subsequent commission of an offence or the commission of
an offence by proxy.[150]
The amendments to section 62 are partly based on the
offence of incitement under section 11.4 of the Criminal Code.[151]
Limitations and defences
Proposed subsection 62(5) of the DFDA provides
that any defences, procedures, limitations or qualifying provisions that apply
to the relevant service offence apply also to the offence of commanding or
ordering a person to commit that service offence.
Under proposed subsection 62(6) any special
liability provisions (within the meaning of the Criminal Code) that
apply to the relevant service offence apply also to the offence of commanding
or ordering a person to commit that service offence.[152]
Under proposed subsection 62(7) it is not an
offence to command or order a person to commit an offence against any of the
provisions of the Criminal Code relating to attempt,[153]
incitement[154]
and conspiracy.[155]
This is in line with the offence of incitement under the Criminal Code,
on which this provision is based.
The penalty for this offence will remain in its current
form: if the service offence is punishable by a fixed punishment, the person who commanded or ordered the offence to be committed will receive that fixed punishment or a punishment that is not more
severe than the maximum punishment for the offence in question.[156]
Under the ADF discipline system, convictions for the service offence of commanding or ordering a service offence to be
committed will be subject to the rights of review and appeal accorded by the DFDA.
Character and status of service convictions under Commonwealth laws
The current legal character and status of convictions imposed
by service tribunals is considered by the Government to be ‘somewhat uncertain’.[157]
The Bill is intended to clarify the character and status of a conviction regarding
a service offence by a Court Martial, a Defence Force magistrate, and a summary
authority.
Item 7 of Schedule 1 of the Bill inserts proposed
section 3A into the DFDA, which provides that ‘for the purposes of
any law of the Commonwealth other than this Act or the regulations, a service
offence is an offence against a law of the Commonwealth’. The purpose of the
new section is to invoke the application of Commonwealth Acts that apply to
Commonwealth offences, such as the Crimes Act 1914 and the National
Security Information (Criminal and Civil Proceedings) Act 2004.[158]
Convictions for service offences by
a Court Martial or Defence Force Magistrate
Item 30 of Schedule 1 of the Bill insert proposed
sections 190A and 190B into the DFDA.
Proposed section 190A applies to:
- convictions
for a service offence by a Court Martial or Defence Force Magistrate—other than
a Schedule 1A offence[159]
and
- convictions
for a Schedule 1A offence by a Court Martial or Defence Force Magistrate where
the punishment imposed is imprisonment.
In that case, a service chief or an authorised officer may
disclose information about the person’s conviction to a Commonwealth, state or territory
authority for purposes connected with investigating, prosecuting or keeping
records in relation to offences against laws of the Commonwealth, the state or
the territory.
Where the disclosure is made for the purpose of complying
with a requirement or authorisation to disclose, proposed subsection 190A(3)
provides that it must expressly refer to the offence as a service offence.
Convictions for service offences by
a Summary Authority
Proposed section 190B applies to convictions for
service offences by a Summary Authority and to convictions by a court martial
or a Defence Force Magistrate for Schedule 1A offences where a punishment of
imprisonment is not imposed. Those convictions have effect for service purposes
only. Proposed subsection 190B(3) puts beyond doubt that a convicted
person is not required to disclose such a conviction to any person, for any purpose
other than a service purpose.
Removal of references to ‘old
system offences’
Items 1 to 4 and 8 to 9 of Schedule 1 of the
Bill amend sections 3, 10 and 11 of the DFDA to remove references to old
system offences and previous service law. Old
system offences were contained in previous single service (that is,
army, navy or airforce) discipline legislation, which was repealed when the DFDA
commenced in 1985. The old system offences provisions were included in the DFDA
as a transitional measure and are now considered to be obsolete.
Replacement of recognizance release
orders with fixed non-parole periods
A recognizance release order involves an order that an
offender be of good behaviour for a period of time. If they are of good
behaviour for that period there is no further punishment.
Section 72 of the DFDA applies specified provisions
of the Crimes Act 1914 (Cth) to a service tribunal that imposes a
sentence of imprisonment on a convicted person. The applied provisions relate
to federal offenders sentenced to imprisonment, including how sentences are to
be structured (including when it is necessary to impose a non-parole period),
release on parole, revocation of parole and conditional release (including on a
recognizance release order). Item 17 of Schedule 1 of the Bill removes the
references to conditional release provisions of the Crimes Act (that is, sections 20, 20A and 20AA) from
section 72 of the DFDA.[160]
The Explanatory Memorandum notes that the inability to
enforce recognizance release orders is due to the ad hoc nature of service
tribunals and the jurisdictional problem of defence members who are sentenced
to imprisonment being automatically discharged from the Defence Force under
subsection 71(1) of the DFDA. As a result, the references in the Crimes
Act to actions to enforce the order by the ‘court by which the order was
made’ are problematic, as an ad hoc tribunal that makes an order will cease to
exist when it is disbanded. This creates difficulties in taking action against
a person who has breached the terms of their order.[161]
Item 18 inserts proposed subsection 72(1A)
into the DFDA so that a service tribunal must not make a recognizance
release order but may impose a non-parole period in respect of sentences of
imprisonment, even where the sentence does not exceed three years. This
provision is needed as otherwise subsection 72(1) of the DFDA would
apply section 19AC of the Crimes Act, which provides that a court must
impose a recognizance release order, and must not impose a non-parole period,
when imposing a sentence that does not exceed three years.
Division 5 of Part IB of the Crimes Act concerns
release on parole or licence, including revocation of parole. Item 20
adds proposed subsection 72(3) into the DFDA, which will apply
the provisions of Division 5 of Part IB of the Crimes Act in respect of
sentences of imprisonment of three years or less, which have a non-parole
period, as well as for sentences over three years but not more than ten years.
(As set out above, as sentences of imprisonment of three years or less imposed
under the Crimes Act would not be eligible to have a non-parole period
set, the provisions relating to release on parole would not otherwise apply to
sentences of this duration.)
Schedule 2
Statutory recognition of the
Director of Defence Counsel Services
Schedule 2 of the Bill provides statutory
recognition of the position of the Director of Defence Counsel Services (DDCS)
in the Defence Act. The Explanatory Memorandum states that this is
intended to:
enhance the actual and perceived independence of DDCS, which
in turn will promote confidence within the Defence Force and broader community
in the fairness and impartiality of the discipline system.[162]
Item 6 of Schedule 2 of the Bill inserts
proposed Part VIIID—Director of Defence Counsel Services into the Defence
Act. Within Part VIIID, proposed section 110ZB outlines the
functions and powers of the office, which primarily include:
- managing
the provision of legal representation and advice to persons who have been
charged with a service offence[163]
or
- managing
the provision of legal representation and advice to persons who are entitled to
representation before a service inquiry, such as a board of inquiry, under the Defence
(Inquiry) Regulations 1985[164]
- establishing
and maintaining a list of legal officers available to assist persons in custody
for an alleged service offence[165]
and
- arranging
the attendance of witnesses on behalf of the accused.[166]
Schedule 3
Appointments of the Chief Judge
Advocate and full-time Judge Advocate
The items in Schedule 3 of the Bill amend items 2–8 of Schedule 3 of the Military
Justice (Interim Measures) Act (No. 1) 2009 (2009 Interim Act) to
extend the appointment, remuneration, and entitlement arrangements provided for
in the 2009 Interim Act for an additional two years, so that the
fixed tenure for the Chief Judge Advocate and current full-time Judge Advocate
would be up to eight years, or until the Minister for Defence declares, by
legislative instrument, a specified day to be a termination day (whichever is
sooner).[167]
It is important to note that the proposed amendments
address the possibility that the statutory time limits of five and ten years on
the CJA’s appointment provided for in subsections 188A(2) and 188A(3) of the DFDA
may be exceeded.[168]
The Bill amends Schedule 3 of the 2009 Interim Act to provide that these
statutory time limitations do not apply to the current CJA, in order to ‘better
ensure the continuity of the superior tribunal system during the interim
period’.[169]
Right to a fair hearing and fair
trial
The Human Rights Committee canvassed the issue of the
right to a fair trial and fair hearing, which is protected by Article 14 of the
International Covenant on Civil and Political Rights (ICCPR).[170]
The right applies to criminal and civil proceedings, and to cases before courts
and tribunals. The right is concerned with procedural fairness, encompassing
notions of equality in proceedings, the right to a public hearing and the
requirement that hearings are conducted by an independent and impartial body.[171]
The right to a fair trial in the determination of a
criminal charge includes the presumption of innocence (Article 14(2)) and
minimum guarantees in criminal proceedings, such as the right to not to
incriminate oneself (Article 14(3)(g)) and a guarantee against retrospective
criminal laws (Article 15(1)).
Compatibility of the amendments
with the right to fair hearing and fair trial
The Human Rights Committee determined that the trial of
members of the armed services for serious service offences by service
tribunals, including Courts Martial, gives rise to issues of compatibility with
the right to a fair hearing in the determination of a criminal charge, stating:
The question is whether a person who is a member of a
military with a hierarchical chain of command and who serves as a judge or
member of a military tribunal, can be said to constitute an independent
tribunal in light of the person's position as part of a military hierarchy.[172]
One of the factors to be considered when examining this question
is whether the members of the court or tribunal are independent of the
executive:
In addition to the relationship of members of a tribunal to a
military chain of command, the term of appointment of members may also be
relevant. In particular, the fact that the term of appointment of a member of a
court or tribunal is terminable at the discretion of a member of the executive,
would appear to be incompatible with the requirement that tribunals be
independent.[173]
The Committee emphasised that the requirement of the
independence and impartiality of a tribunal under Article 14 was an absolute
right and not subject to any exceptions.[174]
The Committee noted that concerns about the impartiality
of the disciplinary structure, the need to ensure Defence personnel were able
to access fair and independent tribunals, judicial independence and
independence from the chain of command were key drivers behind the creation of
the AMC in 2006.[175]
As a result of the High Court's decision in 2009, the system
of military justice has reverted to the previous system which had raised
questions about independence and impartiality. The Committee notes that it has
been six years since the Interim Act was introduced.
The Committee therefore considers that extending the
appointments of the Chief Judge Advocate and full-time Judge Advocate, and
thereby extending the current system of military justice, may limit the right
to a fair hearing... the statement of compatibility does not address this issue.
The Committee therefore seeks the advice of the Minister for Defence as to
whether extending the operation of the existing system of military justice is
compatible with the right to a fair trial.[176]
At the time of publication of this Digest, the Government
had not yet responded to the Committee.
Appendix
Article 14
1. All
persons shall be equal before the courts and tribunals. In the determination of
any criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press and the public
may be excluded from all or part of a trial for reasons of morals, public order
(ordre public) or national security in a democratic society, or when the
interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice; but any judgement rendered
in a criminal case or in a suit at law shall be made public except where the
interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.
2. Everyone
charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
3. In
the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
(a) To
be informed promptly and in detail in a language which he understands of the
nature and cause of the charge against him;
(b) To
have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c) To be tried without
undue delay;
(d) To
be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it;
(e) To
examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
(f) To
have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
(g) Not to be compelled to
testify against himself or to confess guilt.
4. In
the case of juvenile persons, the procedure shall be such as will take account
of their age and the desirability of promoting their rehabilitation.
5. Everyone
convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
6. When
a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the
ground that a new or newly discovered fact shows conclusively that there has
been a miscarriage of justice, the person who has suffered punishment as a
result of such conviction shall be compensated according to law, unless it is
proved that the non-disclosure of the unknown fact in time is wholly or partly
attributable to him.
7. No
one shall be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with the law and
penal procedure of each country.[177]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Defence Act 1903,
accessed 25 May 2015.
[2]. Defence Force Discipline
Act 1982,
accessed 25 May 2015.
[3]. Military Justice (Interim
Measures) Act (No. 1) 2009, accessed 25 May 2015.
[4]. A
Judge Advocate provides administrative assistance to the Judge Advocate
General, assists Court Martial members with the application of military law and
sits as a Judge Advocate and Defence Force Magistrate as required. Their role
is integral to the operation of the superior tribunals. Source: K Andrews
(Minister for Defence), ‘Second
reading speech: Defence Legislation (Enhancement of Military Justice) Bill 2015’,
House of Representatives, Debates, 26 March 2015, p. 3554,
accessed 25 May 2015.
[5]. K
Andrews (Minister for Defence), ‘Second
reading speech: Defence Legislation (Enhancement of Military Justice) Bill 2015’,
op. cit.
[6]. The
term service offence is defined in subsection 3(1) of the DFDA
as an offence against the DFDA or the Defence Force Discipline
Regulations 1985 (DFD Regulations); an offence that is an ancillary offence
in relation to an offence against the DFDA or the DFD Regulations and
was committed by a person at a time when the person was a defence member or a
defence civilian; or an old system offence. Though note that this Bill proposes
to remove the ‘old system offence’.
[7]. In
simple terms, a recognizance release order involves an order that an offender
be of good behaviour for a period of time. If they are of good behaviour for that
period there is no further punishment. Source: Armstrong Legal, ‘Recognizance
release orders’, Armstrong Legal website, accessed 25 May
2015.
[8]. The
Director of Defence Counsel Services (DCS) is a senior military legal officer
who is appointed by the Chief of the Defence Force and ‘ensures provision of
timely and proficient legal assistance within the military justice system,
including in applicable administrative proceedings, to members of the ADF and
others. In practical terms, DCS coordinates and manages access to assistance by
identifying and promulgating a panel of ADF legal officers’. Source: Department
of Defence (DoD), ‘Directorate
of Defence Counsel Services,’ accessed 2 June 2015.
[9]. Penalty
units are used to describe the amount payable for fines under Commonwealth
laws. Fines are calculated by multiplying the value of one penalty unit by the
number of penalty units prescribed for the offence. For example, if one penalty
unit is defined as $170 and a given offence is subject to a penalty of up to
200 units, this translates to a maximum of $34,000. The value of a penalty unit
is set out at section 4AA of the Crimes Act 1914 (Cth),
accessed 1 June 2015. The defined value of a penalty unit is revised
periodically.
[10]. K
Andrews (Minister for Defence), ‘Second
reading speech: Defence Legislation (Enhancement of Military Justice) Bill 2015’,
op. cit.
[11]. Department
of Defence (DoD), ‘Military justice’,
DoD website, accessed 29 April 2015.
[12]. Under
section 3 of the Defence
Force Discipline Act 1982:
"defence
member" means:
(a) a member of the
Permanent Navy, the Regular Army or the Permanent Air Force; or
(b) a member of the Reserves
who:
(i) is
rendering continuous full-time service; or
(ii) is
on duty or in uniform.
"defence
civilian" means a person (other than a defence member) who:
(a) with the
authority of an authorized officer, accompanies a part of the Defence Force
that is:
(i) outside
Australia; or
(ii) on
operations against the enemy; and
(b) has
consented, in writing, to subject himself or herself to Defence Force
discipline while so accompanying that part of the Defence Force.
[13]. Department
of Defence, ‘Military justice’, op.
cit.
[14]. Ibid.
[15]. Department
of Defence (DoD), ‘What is the military
justice system?’, DoD website, accessed 29 April 2015.
[16]. S
Harris Rimmer and J Moremon, Defence
Legislation Amendment Bill 2006, Bills digest, 48, 2006–07,
Parliamentary Library, Canberra, 2006, p. 2, accessed 20 May 2015; Senate
Standing Committee on Foreign Affairs, Defence and Trade, The
effectiveness of Australia's military justice system, June 2005, p. xxvii,
accessed 20 May 2015.
[17]. Senate
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[20]. Senate
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[39]. DFDA,
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[90]. Ibid.,
para 88. Section 80 of the Constitution provides: ‘The trial
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[92]. Note
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[93]. White
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[94]. Ibid.
[95]. M
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[96]. Ibid.
[97]. Discussed
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[100]. M
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[142]. Defence
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[146]. Explanatory
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[147]. Ibid.
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[150]. Ibid.,
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[151]. Ibid.
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[153]. Criminal
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[154]. Criminal
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[155]. Criminal
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[156]. Proposed
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[158]. Ibid.,
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[159]. Service
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[161]. Explanatory
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[162]. Ibid.,
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[163]. Proposed
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[170]. Article
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[176]. Ibid.
[177]. International
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