Key points

• The Defence Force Discipline Amendment (RCDVS Implementation and Related Measures No. 1) Bill 2026 (Bill) would amend the Defence Force Discipline Act 1982 to give effect to recommendations made by the Royal Commission into Defence and Veteran Suicide (RCDVS) and make consequential and contingent amendments to related legislation.

• The Bill contains 6 schedules. Schedule 1 contains amendments giving effect to RCDVS report Recommendations 18, 20, 23 and 63 including provisions regarding suspending members from duty while under civilian criminal investigation, sentencing procedures for serious violent or sexual offences and the disclosure of service offence convictions.

• Schedule 2 amends procedures for superior service tribunals including requiring reasons in sentencing and providing an increased role for judge advocates in courts martial (implementing Recommendation 34 of the RCDVS report).

• Schedule 3 establishes the Defence Mental Health Tribunal and amends service tribunal procedures relating to mental health impairment pending the commencement of the Defence Force Mental Health Tribunal framework.

• Schedule 4 introduces a new summary contraventions scheme to operate as the middle tier in the military disciplinary system.

• Schedule 5 provides for a broad range of amendments including a ministerial power to issue directions and guidelines to the Director of Military Prosecutions and a framework for extinguishing convictions for historical homosexual service offences.

• Schedule 6 contains a ministerial transitional rule-making power.

• The Bill has not yet been referred to, or considered by, a parliamentary committee.

Introductory Info

Date of introduction: 1 April 2026
House introduced in: House of Representatives
Portfolio: Defence
Commencement:

Sections 1 to 3 commence on Royal Assent. The remainder of the Bill would commence the day after Royal Assent, except for those provisions outlined below.

Part 2 of Schedule 3 (establishing the Defence Mental Health Tribunal) would commence on proclamation or 1 January 2028.

Parts 1 to 3 of Schedule 4 (amendments to the summary discipline system) would commence on the later of 1 January 2027 or the first day of the month to start after a period of 3 months after Royal Assent.

Part 4 of Schedule 4 (contingent amendments) would commence at the later of the commencement of Parts 1 to 3 and immediately after the commencement of the Defence and Veterans’ Service Commissioner Act 2026 (which received Royal Assent on 1 April 2026 but has not commenced).

Purpose of the Bill

The main purpose of the Defence Force Discipline Amendment (RCDVS Implementation and Related Measures No. 1) Bill 2026 (the Bill) is to amend the Defence Force Discipline Act 1982 (DFDA) to give effect to recommendations made by the Royal Commission into Defence and Veteran Suicide (RCDVS). A number of other significant reforms to the military justice system are contained in the Bill as well as consequential and contingent amendments to a range of related legislation.

Structure of the Bill

There are 6 schedules to the Bill.

• Schedule 1 contains 5 parts making amendments associated with Recommendations 18, 20, 23 and 63 of the RCDVS report.

• Schedule 2 streamlines superior tribunal procedures around courts martial sentencing in the context of Recommendation 34 of the RCDVS report.

• Schedule 3 contains 2 parts amending service tribunal procedures relating to mental health impairment and establishing a Defence Mental Health Tribunal framework.

• Schedule 4 creates a summary contravention scheme.

• Schedule 5 contains 16 parts ‘each implementing a distinct measure designed to enhance fairness, streamline processes and improve overall efficiency of the military discipline system.’ (Explanatory Memorandum (EM), p. 3).

• Schedule 6 provides for the making of transitional rules.

Background

The RCDVS was established by the Morrison Government in April 2021. This followed parliamentary motions supporting a royal commission into suicide among current and former serving Australian Defence Force (ADF) personnel passing both the Senate and the House of Representatives. The Bill seeks to implement certain recommendations from the Final Report of the Royal Commission into Defence and Veteran Suicide (RCDVS report), which was published on 9 September 2024. The RCDVS report made 122 recommendations.

The Australian Government Response to the Final Report of the Royal Commission into Defence and Veteran Suicide was released in December 2024. Of the 122 recommendations, the Government stated it agreed or agreed in-principle to 104 recommendations, noted 17 for further consideration by the Royal Commission Implementation Taskforce and 1 recommendation was not supported in part. The Taskforce was established in December 2024 and ceased operations on 19 December 2025 as the Defence and Veterans’ Service Commission (DVSC) transitioned into the primary oversight body. The DVSC was established under standalone legislation in April 2026. For further information about the DVSC, refer to the Bills Digest.

The EM to the Bill states the Government seeks to implement or ‘give effect to’ RCDVS Recommendations 18, 20, 23, 34 and 63 primarily through amendments to the DFDA and related legislation. The EM also notes the Bill seeks to implement recommendations, consistent with the RCDVS’s overarching intention to reduce harm to those involved in military justice proceedings, made by the (p. 2):

• Commonwealth Ombudsman (Actions Speak: Follow-up on Defence’s Implementation of the Recommendations in the Defence Abuse Response Taskforce Final Report, August 2024)

• Judge Advocate General 2024 annual report

• Director of Military Prosecution annual reports

• Defence Abuse Response Taskforce (DART) final report and

• Inspector-General of the ADF (IGADF) Afghanistan Inquiry Report (public version).

The IGADF has an on-going independent inquiry into allegations and perceptions that the military justice system has been, or has the potential to be, 'weaponised' or abused such that it may cause harm.

Previous parliamentary inquiries into the military justice system

The RCDVS identified parliamentary committees as one of the elements of the external oversight ecosystem holding Defence to account through investigating ‘specific matters of governmental administration or performance’ (p. 388, Volume 3). Previous parliamentary inquiries that specifically focused on military justice include:

• Military justice procedures in the Australian Defence Force by the Joint Standing Committee on Foreign Affairs, Defence and Trade. The final report was tabled on 21 June 1999 and contained 59 recommendations.

• Effectiveness of Australia’s military justice system by the Senate Foreign Affairs, Defence and Trade References Committee. The Committee tabled its report on 16 June 2005, containing 40 recommendations.

• Review of reforms to Australia’s military justice system by the Senate Foreign Affairs, Defence and Trade Legislation Committee monitored progress on the implementation of the June 2005 recommendations (noted above) and issued the first progress report on 17 August 2006. The Committee issued the second progress report on 29 March 2007, the third progress report on 10 September 2007 and the fourth progress report on 24 September 2008.

Key issues and provisions

Schedule 1—RCDVS recommendation reforms

Part 1—Suspension from duty while under civil investigation

Currently, the DFDA provides that an ADF member may be suspended while allegations of a service offence are investigated. However, where a person is investigated for a civilian criminal offence, suspension is only available once a charge has been laid (subsection 98(1)). In the meantime, an alleged perpetrator could continue working alongside the victim.

The RCDVS recommended that the ADF have a dedicated policy for sexual misconduct investigations that provides for commanding officers to apply interim actions to the alleged perpetrator including amending work arrangements and allowing suspension with pay (RCDVS recommendation 18, Volume 1, p. 106).

Part 1 would amend the DFDA to allow an authorised officer to suspend a member from duty if the member is under investigation by a Commonwealth, state or territory authority for a civil court offence, or by an authority of a place outside Australia because the member may have committed an overseas offence (proposed subsection 98(2A), at item 1).

Unlike the existing provisions for suspension for a service offence investigation, the amendments would not require the authorised officer to suspect on reasonable grounds the ADF member had committed the civilian offence. The new procedure would not be limited to sexual misconduct.

Part 2—Sentencing procedures for serious violent or sexual offences

The RCDVS recommended that the DFDA should be amended to ‘require service tribunals to consider the impact of a sexual offence on the victim as a factor during sentencing’ and to clarify that ‘if an offender is of higher rank than a victim, this should be considered an aggravating factor’ (RCDVS recommendation 20, Volume 1, p. 107).

Part 2 would make key amendments to section 70 which contains the sentencing principles to be applied by service tribunals, including mitigating or aggravating circumstances. In particular, item 10 inserts proposed paragraph 70(1)(c) which would require a service tribunal to take into account a service impact statement in determining what action should be taken in relation to a convicted person. Proposed subsection 70(1A) would also require the Director of Military Prosecutions (DMP) to invite a superior authority to give a service impact statement setting out any impact the conduct has had, or could have, on maintaining discipline. A superior authority is an officer appointed under section 5A by the Chief of the Defence Force (CDF) or a service chief to represent the interests of the ADF as they relate to charges being considered by the DMP.

Item 11 would insert proposed paragraph 70(2)(ea) which would require a service tribunal to take into account in sentencing ‘the impact on any victim of the conduct’ where the service offence constitutes a serious violent or sexual offence. A new definition of serious violent or sexual offence is inserted by item 7 referring to a range of sexual misconduct offences in the Crimes Act 1900 (ACT) and the federal Criminal Code Act 1995 (Criminal Code).

Item 12 inserts proposed subsection 70(2A) which clarifies that a convicted person’s rank is taken to be an aggravating circumstance where the person engaged in conduct which constitutes a serious violent or sexual offence against another ADF member and ‘the person’s rank is not equivalent to the member’s rank’. The EM states this amendment recognises that ‘the hierarchical nature of the Defence Force means that rank disparities can exacerbate the seriousness of offending in different ways.’ (p. 12)

Under the DFDA, disciplinary decisions by service tribunals are usually the subject of review and confirmation by reviewing authorities. This includes punishments and other orders contained in Part IV of the DFDA. Reviewing authorities are appointed by the CDF or service chiefs (section 150).

Section 161 provides for reviewing authorities in some circumstances to quash a conviction and substitute a conviction for an alternative offence. Item 13 inserts proposed subsection 161(3) to provide that where a reviewing authority takes this action it must give reasons ‘for each punishment imposed and each order made under Part IV’. Item 16 inserts a similar requirement ‘to give reasons’ in section 162 which allows reviewing authorities to review and, in some circumstances, change actions taken by service tribunals under Part IV. The EM notes these changes partly implement ‘recommendation 34 of the RCDVS and recommendations of the [Judge Advocate General] in its Annual Reports.’ (p. 13)

Item 14 also amends section 162 to require a reviewing authority to receive and consider evidence which would have been admissible, is likely to be credible and was not reasonably available in the proceedings of the service tribunal. If the reviewing authority considers the action taken by the service tribunal cannot be supported, it must quash the punishment or revoke the order (or both) (proposed subsection 162(1A)).

Part 3—Disclosure of service offences

The RCDVS recommended ‘as a matter of urgency’ the Australian Government should ensure the ADF has a complete and reliable record of serving members who have been convicted of sexual offences and related offences in civilian courts and ensure that civilian criminal records include convictions of sexual offences and related offences under the DFDA (RCDVS Recommendation 23, Volume 1, p. 109). Part 3 establishes a framework for the disclosure of convictions of service offences to civilian criminal history systems.

Section 190A currently provides that CDF, a service chief or an authorized officer may disclose a conviction, or information related to the conviction, to a government authority for ‘purposes connected with investigating, prosecuting or keeping records in relation to offences …’ Item 21 would insert proposed subsection 190A(1A) providing that the CDF must disclose the fact a person has been convicted and any information relating to the conviction, to the Australian Criminal Intelligence Commission ‘for the purposes of the performance of its national policing information functions …’ However, this would not apply if a service tribunal has made a non-disclosure order where it considers disclosure is not appropriate (item 19, proposed section 74A).

Under the DFDA, where a reviewing authority considers a service tribunal action is wrong in law or excessive, it must quash the punishment or revoke the order (or both) which has been made (section 162). Item 20 provides that a reviewing authority may not revoke a service tribunal’s non-disclosure order in relation to a conviction, but can make a non-disclosure order if ‘it appears to the reviewing authority that a service tribunal should have made a non-disclosure order in relation to a conviction …’ (proposed section 162A).

Part 4—Removing stigmatising language

Part of RCVDS Recommendation 63 was that the ADF should remove cultural and structural barriers to seeking help and reduce stigma by removing reference to the word ‘malingering’ from section 38 of the DFDA (RCDVS Recommendation 63, Volume 1, p. 132). The ADF slang term ‘linger’ refers to an person who fakes an injury or condition to avoid activities.

Section 38 contains 2 offences for defence members who intentionally harm themselves to make themselves unfit for duty or who falsely represent they are suffering from a physical or mental condition to avoid duty or service. Part 4 amends the heading of section 38 to replace ‘Malingering’ with ‘Rendering or falsely representing oneself as unfit for duty or service etc’. The EM notes ‘this term has, over time, accrued negative connotations in respect of wounded or ill Defence Force members.’ (p. 17)

Part 5—Distinguishing between violent and non-violent conduct

Part 5 makes amendments to the DFDA to distinguish between violent and non-violent forms of ill-treatment within specific service offences and makes a structural change to the placement of the alternative offence list in the DFDA.

Under item 27, the offence of assaulting or ill-treating a defence member of subordinate rank (section 34) would be amended to apply where a member ‘assaults a person; or ill-treats a persons with violence; or otherwise ill-treats a person’. A similar amendment will be made (by item 26) to an offence when the defence member is captured by the enemy, is in a position of authority over other persons also captured and ill-treats those persons (subsection 19(4)). The EM states (pp. 17–18):

Consistent with the Government’s commitment to improved reporting of service convictions, the amendments clarify whether convictions under sections 19 and 34 involve violence. This distinction is important for accurate reporting to, and recording by, civilian law enforcement bodies, particularly where such disclosures occur through automated systems.

Items 28, 29, 30 and 31 repeal Schedule 6 and largely replaces the existing alternative offence list as a subsection of section 142 (proposed subsection 142(1A)). The EM states the aim of this structural change ‘is to make the DFDA easier to navigate.’ (p. 18)

Schedule 2—Streamlining superior tribunal procedures

Background

Under the DFDA, summary authorities may be officers appointed by the CDF or service chiefs or a commanding officer (section 105). Summary authorities generally deal with minor disciplinary matters. There are 2 types of superior tribunals which make decisions regarding service offences—courts martial and Defence Force Magistrates (DFM). Courts martial consist of a judge advocate (a legally trained ADF member), a President and a certain number of other ADF members depending on whether it is a general or a restricted court martial (section 114). The decisions of these superior tribunals can be reviewed by ‘reviewing authorities’ (section 150) and appeals by persons convicted can be heard by the Defence Force Discipline Appeal Tribunal.

Reasons for punishment

The RCDVS recommended that Defence should ‘prioritise the review of current provisions relating to court martial panels not being required to provide reasons for punishments being imposed’ (Recommendation 34, Volume 1, p. 115). The Minister for Defence Personnel stated that the amendments in Schedule 2 will ‘give effect’ to this recommendation ‘… by introducing the requirement for any conviction and sentencing decision by superior tribunals or reviews to be accompanied by reasons’.

Part IV of the DFDA contains the punishment and orders that may be imposed on convicted persons. Item 18 amends section 130 to provide that summary authorities must give reasons for each punishment imposed and each order made under Part IV in relation to a convicted person. Similarly, proposed sections 135 and 136E require judge advocates and DFM respectively ‘to give reasons for each punishment imposed and each order made under Part IV …’. (item 19)

Other reforms to superior tribunal procedures

The EM states that Schedule 2 also contains ‘a comprehensive package of reforms to streamline and modernise the procedures of superior tribunals under the DFDA to align courts martial and DFM proceedings with contemporary civilian criminal practice, while retaining the flexibility required for military operations.’ (EM, p. 20)

Item 14 repeals and replaces Division 3 of Part VII dealing with courts martial including composition, jurisdiction, appointment, substitution and dissolution matters. In particular, proposed section 114 will reflect an increased role for the judge advocate (discussed below) by providing general and restricted courts martial which will consist of the judge advocate and ‘if and when required, a court martial panel’ consisting of a President and not less than 4 or 2 other members respectively. Other significant changes are made by item 19 which repeals and replaces Division 2 of Part VIII dealing with the trial procedures of courts martial and DFMs.

Mode of trial changes

Proposed section 103A at item 11 will allow an accused person or the prosecution, before the accused is asked to plead in relation to a charge, to apply for a change in the mode of trial. This could be an application for a court martial to proceed without a panel (only before the judge advocate); a restricted court martial to become a general court martial; or a DFM proceeding to be referred to a court martial.

Increased role for judge advocates in court martials

A number of changes in Schedule 2 expands the role of judge advocates in the court martial process. These include amendments that provide:

• the judge advocate may hold procedural hearings, give directions or rulings in relation to the proceedings, direct the parties to attend (in person or otherwise) and hear applications and objections (proposed section 132)

• the judge advocate of a court martial may give any ruling, and exercise any discretion, that, in accordance with the law in force in the Jervis Bay Territory, would be given or exercised by a judge in a trial by jury (proposed section 136A).

Currently, under section 134, the members of the court martial determine the punishments and orders made under Part IV in relation to a convicted person, with the judge advocate ruling on any questions of law. Proposed section 135 would require the judge advocate to solely determine the actions to be taken under Part IV in relation to a convicted person. The EM states that this change ‘aligns with civilian practice and implements RCDVS recommendation 34 by removing legally complex sentencing decisions from lay panel members and enhancing transparency and accountability.’ (p. 20)

There may be mixed views on the merits of this change. Currently, courts martial provide a panel of decision-makers with a range of armed services experience. Halsbury’s Laws of Australia notes that a court martial is a ‘tribunal of a unique kind’ and there is ‘no true analogy between a court martial and a jury’ ([150-930]). Accordingly, the argument for alignment with civilian practice in trials (where juries determine guilt and judges determine sentencing) may be open to question.

Schedule 3—Service tribunal procedures relating to mental health

Schedule 3 contains 2 parts. Part 1 provides courts martial and DFMs with new powers in proceedings against persons who may be suffering a mental impairment. Part 2 establishes the Defence Mental Health Tribunal (DMHT) framework. In particular, the new framework will allow service tribunals to make mental health referral orders and the DMHT to make orders concerning the detention, care and treatment ‘in a mental health facility, a detention centre, a civil detention centre or another place’.

Part 1— Powers in proceedings against person suffering a mental impairment

In relation to Part 1, the EM highlights issues with the current sections of the DFDA dealing with ‘unsoundness of mind’ (section 145 and section 194) which ‘only deal with circumstances where an accused person is unfit to plead or incapable of criminal responsibility’ (p. 41):

The existing framework does not provide a mechanism for addressing the range of mental health conditions that may fall short of legal incapacity yet still impact an accused person’s wellbeing, participation, or the overall fairness of superior tribunal proceedings.

Part 1 establishes new diversionary measures for superior tribunals … that allow proceedings to be adjourned or, in limited circumstances, dismissed where the accused person is suffering from a mental impairment. (p. 41)

Item 5 inserts proposed Division 2A into Part VIII (comprising proposed sections 137A to 137E) which introduces new procedures for service tribunals in proceedings against a person suffering a mental impairment.

For the purposes of the DFDA the term mental impairment will have the same meaning as in the Criminal Code (proposed section 137B). Mental impairment is dealt with under section 7.3 of the Criminal Code. It provides in part:

(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or

(c) the person was unable to control the conduct.

(2) The question whether the person was suffering from a mental impairment is one of fact.

(3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment

…

(8) In this Code:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

(9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

Adjournment of proceedings

Proposed section 137C provides that, at any stage of proceedings, the accused person can apply for an adjournment on the grounds the person is suffering from a mental impairment. The application must be accompanied by a submission outlining the care, treatment or support that the accused needs; and a report from a relevant medical practitioner outlining the nature, severity, expected duration of the impairment and a proposed treatment plan.

The service tribunal must order an adjournment of proceedings where the judge advocate or DFM rules that continuing proceedings in the period is neither in the accused person’s interests nor in the interests of maintaining discipline in the Defence Force. The prosecution must have had the opportunity to be heard before the decision to adjourn is made. The adjournment period may not be longer than 6 months. Following the period, the accused person must provide another report from a relevant medical practitioner. The service tribunal must decide whether to dismiss the charges (discussed below) or continue the proceedings (proposed section 137D).

Dismissal of charges

Under proposed subsection 137E(1) a service tribunal must dismiss a charge:

(a) where ‘reasonably satisfied that the accused person is suffering from a mental impairment’

(b) ‘the judge advocate or [DFM] rules that trying or continuing to try the charge is not in the interests of maintaining discipline in the Defence Force’

(c) the prosecution has had the opportunity to be heard.

Proposed subsection 137E(2) provides a range of factors which must be considered in making the decisions above. These include ‘the nature, severity and expected duration of the mental impairment’ and ‘… the nature and seriousness of the charge’.

Proposed subsection 137E(3) clarifies that a judge advocate or DFM is not required to make the ruling on paragraph 137E(1)(b) (whether trying the charge is in the interests of maintaining discipline) unless the accused person has submitted they should do so, and ‘the interests of justice’ require they do so.

The EM indicates this ‘diversionary outcome is intended to apply only in appropriate cases’ and provides the examples of ‘… matters that are purely military in nature, do not involve violence, a victim, fraud or misuse of authority, and where disciplinary value in prosecuting is low.’ (p. 44)

Other amendments

Items 7–9 amend section 145 including changing its heading from ‘Unsoundness of mind’ to ‘Mental impairment’. The EM notes that the consequences of the accused being found unfit to plead, or not responsible for a service offence, due to mental impairment remain that tribunals ‘must formally record that finding and direct that the accused be kept in strict custody until the pleasure of the Governor‑General is known.’ (p. 45). The EM states ‘… the requirement for strict custody continues as a temporary measure pending commencement of Part 2 of Schedule 3, which will introduce a DMHT and its alternative framework.’ (p. 45)

Other amendments make related changes to allow reviewing authorities to review decisions made by courts martial and DFMs in relation to mental impairment (items 10–17). The capacity of a reviewing authority to order a new trial ‘in the interests of justice’ for a person acquitted of a service offence will remain (section 166).

Similarly, items 23–27 make related amendments to the Defence Force Disciplinary Appeals Act 1995 to provide for the Defence Force Discipline Appeal Tribunal (Appeal Tribunal) to consider appeals against convictions and make appropriate orders including where it appears courts martial or DFMs should have found that the appellant was not responsible for a service offence, or was unfit to plead, because of a mental impairment.

Part 2—Defence Mental Health Tribunal

The amendments in Part 2 establish the DMHT regime including providing for service tribunals, reviewing authorities and the Appeal Tribunal to make mental health referral orders. Part 2 also repeals the main existing provisions providing for accused persons with mental impairment (items 35 and 44 repeal section 145 and section 194 respectively).

Key amendments include:

• a requirement that where a service tribunal finds that the person is unfit to plead due to mental impairment, a mental health referral order to the DMHT must be made (proposed subsection 137F(1))

• a requirement that where a service tribunal finds a person not responsible for a service offence because of mental impairment, the person must be found not guilty, acquitted, and a mental health referral order to the DMHT must be made (proposed subsection 137F(2))

• a service tribunal’s mental health referral order may specify a maximum period for which the person may be subject to the DMHT orders—which must not exceed 10 years for a serious violent or sexual offence, or 3 years in any other case (proposed subsections 137F(3)-(4)).

Items 36–42 make amendments to allow reviewing authorities to review and make mental health referral orders and specify a maximum period to which a person may be subject to an order. Similarly, items 45–46 amend the Defence Force Discipline Appeals Act to provide for the Appeal Tribunal to make mental health referral orders in quashing convictions.

Where a mental health referral order is made, the Registrar, or an authorised officer, will have the power to detain the person in ‘a mental health facility, detention centre, civil detention centre or other place’, until the DMHT makes a decision (proposed section 137G).

Item 43 will insert proposed ‘Part XB—Defence Mental Health Tribunal orders’ (proposed sections 178E to 178Q) containing the core components of the DMHT regime and its procedures. In particular, it provides for the making of DMHT Rules by the Judge Advocate General by legislative instrument as well as relevant regulations for the administration of the DMHT (proposed subsection 178F(5) and sections 178P and 178Q).

Where a mental health referral order has been made concerning a person and confirmed by a reviewing authority, the reviewing authority must direct the Registrar of Military Justice to convene a DMHT to determine if any order should be made (proposed subsection 178F(1)). The Registrar, in convening a DMHT, must make an order appointing a medical practitioner, a legal practitioner and a representative member of the ADF (proposed subsection 178F(3)).

Under proposed subsection 178G(2), the DMHT may make orders relating to:

• the person’s detention in a mental health facility, a detention centre, a civil detention centre or another place

• the person’s care or treatment in a mental health facility, a detention centre, a civil detention centre or another place

• the person’s release from detention (either unconditionally or subject to conditions).

Proposed subsection 178G(4) provides for maximum periods of detention for any DMHT order: ‘10 years for serious violent or sexual offences, and 3 years in all other cases, unless the referring service tribunal has specified a shorter period’ (EM, p. 53).

In making its decisions the DMHT ‘must have regard to’ the principles applied by the civil courts and tribunals in making orders for the detention, care or treatment of persons suffering from a mental impairment (proposed section 178M).

While an order is in effect, the DMHT may ‘vary or revoke the order’ or make a new order (proposed section 178K). Where the DMHT considers that a person released subject to conditions ‘may have breached a condition of the order’, the DMHT may order the person ‘be detained in a mental health facility, a detention centre, a civil detention centre or another place’. If this occurs, the DMHT must, as soon as practicable, decide whether to vary, revoke or make a new order (proposed section 178L).

Decisions of the DMHT (including variations and revocations) must be reviewed by a reviewing authority and confirmed before coming into effect (proposed section 178H). The DMHT must also review any orders in effect ‘at least every 6 months’ (proposed section 178J).

The EM notes that proposed section 178N ‘authorises the Minister to make, vary or administer arrangements with State or Territory ministers for, and in relation to, the detention, care or treatment of persons subject to DMHT orders in civilian mental health facilities or detention centres.’ (p. 56)

Part 2 will commence on Proclamation, or on 1 January 2028 if not proclaimed earlier. The EM states this ‘… will allow time to negotiate state and territory funding and access arrangements for treatment and facilities required to support Tribunal orders, and to make any subsequent rules or regulations needed to reflect those agreements.’ (p. 3)

Schedule 4—Summary contraventions

Schedule 4 would introduce a summary contravention scheme to the military disciplinary system by inserting proposed Part 1B and Schedule 2 (containing the summary contravention provisions) into the DFDA. The new simplified outline of the DFDA (proposed section 2A, at item 13) positions the summary contravention scheme as a replacement for the middle-tier within the military disciplinary system:

Minor service discipline matters are dealt with under the infringement scheme in Part IA … The most severe punishment that may be imposed is a fine.

More serious service discipline matters that are not suitable to be dealt with through the disciplinary infringement scheme are dealt with under the summary contravention scheme in Part IB. This scheme applies in relation to defence members holding a rank of, or below, rear admiral, major-general or air vice-marshal, and certain other persons, who have contravened summary contravention provisions (see Schedule 2). The most severe punishment that may be imposed is a reduction in rank, or in some active service situations, detention for up to 42 days.

Matters that are serious enough to warrant being dealt with as a service offence are dealt with by service tribunals … A service offence is an offence against a law of the Commonwealth. The most severe punishment that may be imposed is imprisonment. (p. 129)

The Minister’s second reading speech highlighted that the proposed summary contravention scheme would be ‘administrative, not criminal, and use the civil standard of proof’ and allow ‘Defence to manage misconduct in a proportionate, efficient way while reducing unnecessary escalation into the service offence system’.

Item 1 would insert ‘Part IB—Summary contraventions’ into the DFDA. Summary contraventions will be heard by summary authorities (commanding officers or officers appointed by the CDF under proposed section 9V). Summary Authority Rules may be made by the Judge Advocate General to regulate matters regarding the summary contravention scheme (proposed section 9SA).

The list of summary contraventions (contained in proposed Schedule 2, at item 5) cover a range of misconduct such as assaulting a superior officer or theft by a defence member or defence civilian. The EM states the Divisions in Schedule 2 ‘… cover the breadth of conduct that requires disciplinary action at the summary level, including unauthorised absence, insubordination, disorderly conduct, failure related to performance of duty, improper handling of equipment or vehicles, property‑related misconduct, cyber‑bullying, custody‑related misconduct, and a range of other integrity‑related contraventions.’ (p. 80)

Key procedural features of the summary contravention scheme are outlined in proposed section 9K (the simplified outline of proposed Part IB):

A person who is charged with a summary contravention will be given an opportunity to elect to instead be dealt with by a service tribunal for a service offence arising out of the contravention.

Summary contraventions are not service offences. However, if a person has been dealt with by a summary authority for a summary contravention, the person is not liable to be tried by a service tribunal for an offence arising out of the contravention and cannot be dealt with under the infringement scheme for a disciplinary infringement arising out of the contravention.

If the person chooses not to elect, the person may be dealt with by a summary authority. If the person chooses to elect, the person may be charged with a service offence arising out of the contravention and tried by a service tribunal.

A summary authority in dealing with a summary contravention may decide to:

(a) dismiss the charge, including where hearing the charge is not in the interests of maintaining discipline in the Defence Force; or

(b) find the person not guilty of the charge and dismiss the charge; or

(c) find the person guilty of the charge.

If the person is found guilty, a summary authority dealing with the charge will take action under Part IV (about punishments and orders) in relation to the person.

A decision to find the person guilty, or to dismiss the charge, including where hearing the charge is not in the interests of maintaining discipline in the Defence Force, does not take effect until the decision is reviewed under Part VIIIA by a reviewing authority.

Proposed section 9TB provides a table of the punishments that may be imposed by summary authorities for summary contraventions. These punishments are specific and separated by rank with more severe punishments (such as detention) not available for senior ranks. Further to this, proposed section 9TC provides for the circumstances in which a summary authority may impose custodial punishments on detainees who commit certain summary contraventions while already undergoing a punishment of detention.

As with other parts of the military disciplinary system, summary contraventions would apply to defence civilians (persons who accompany the ADF outside of Australia or on operations and have consented to be subject to military discipline). The only summary contravention punishment for a person ‘who is not a defence member’ is a fine ‘not exceeding 7 penalty units’ (currently $2,310).

Under proposed section 9RG, a summary authority may refer a charge to the DMP where it is ‘desirable in the interests of justice’ at any stage of proceedings. Additionally, it must refer a charge to the DMP if:

• the evidence adduced by the prosecution is sufficient to support the charge and

• it is precluded from the order or punishment warranted by the evidence.

Decisions made by summary authorities will be reviewed by reviewing authorities in a similar way as decisions in relation to service offences (proposed sections 9U).

Consequential amendments

Item 7 of Schedule 4 amends the definition of background check in subparagraph 5(bb) of the AusCheck Act 2007 regarding eligibility for the Global Entry program (the trusted traveller program which enables expedited immigration and customs clearance for individuals entering the United States). Currently, the check concerns whether a court martial or DFM has convicted a person of a service offence (other than a Schedule 1A offence), or convicted a person of a Schedule 1A offence and imposed a punishment of imprisonment. As Schedule 1A will be repealed as part of the introduction of the summary contravention scheme, the amendment would limit the check to whether a person has been convicted of a service offence.

The EM argues this amendment has the:

effect of broadening the disclosure as the definition of a background check would capture all conduct that is serious enough to warrant prosecution by a superior tribunal, which captures offending previously excluded by the limitation in respect of Schedule 1A offences, and not just those Schedule 1A offences that resulted in a sentence of imprisonment. (p. 82)

Potentially, this change could raise concerns that misconduct classified by Defence as a summary contravention would not be captured by the background check regime for the purposes of the Global Entry program.

Commencement

The EM states that the delayed commencement of the amendments to the summary discipline system ‘will allow appropriate change management and training activities to ensure Defence Force personnel are aware of their rights and obligations, and to align implementation, as closely as possible, to the 2027 posting cycle.’ (p. 3)

Schedule 5—Other amendments

Schedule 5 contains 16 parts covering a range of amendments to the DFDA. The Minister’s second reading speech stated each of these parts delivers ‘a discrete fairness, efficiency or modernisation measure that seeks to strengthen the [DFDA] framework’:

Broadly, these include modernising drug offence thresholds to align with other Commonwealth legislation, clarifying delegation powers, updating rules of evidence, harmonising judicial officer termination grounds, improving review processes, modernising the powers of investigating officers, enabling removal orders for intimate images, enabling evidence to be provided via video, victim impact statements and providing for the extinguishment of historical homosexual service conviction records that would not be offences today. Each measure enhances system coherence and brings the Defence Force Discipline Act in line with contemporary Australian law and practice.

Some of the key amendments in Schedule 5 are outlined below.

Part 4—Other changes to service offences

Part 4 amends the assault, insult, provocation, disturbance and obscene conduct offence in section 33 to add ‘harassment of a person’ to the offence as well as omitting the requirement that the offence is committed ‘on service land, in a service ship, service aircraft or service vehicle or in a public place’. Similarly, the location-based conditions on the assault causing bodily harm offence in section 33A are also repealed. The EM states these changes align with ‘contemporary expectations that unacceptable behaviour should be actionable irrespective of physical setting.’ (p. 100)

Part 8—Delegation of powers

Part 8 makes a range of amendments to concentrate statutory disciplinary powers in the CDF by repealing references to the service chiefs in relevant provisions. The EM notes this continues a strategic reform that had its origin in the First Principles Review: Creating One Defence in 2015 and has ‘generally involved vesting statutory functions and powers in the CDF, which are delegated to service chiefs and other Defence Force officers as appropriate.’ (p. 103)

Part 10—Functions of Director of Military Prosecutions

The DMP is an independent statutory officer appointed by the Defence Minister with statutory functions (section 188GA) including the prosecution of service offences and representing the service chiefs before the Appeal Tribunal. The amendments in Part 10 insert an additional function of representing ‘the CDF and service chiefs in proceedings relating to the DFDA and [DFDAA] before the Federal Court and High Court’.

Part 10 will also add a new power for the Defence Minister to make directions and guidelines regarding the performance of the DMP’s functions and powers (proposed section 188GAA). The EM states this provision is modelled on section 8 of the Director of Public Prosecutions Act 1983 which allows the Attorney-General to make directions and guidelines for the Commonwealth Director of Public Prosecutions (p. 108). Unlike this provision, the Defence Minister must consult with the DMP and Judge Advocate General before giving directions or guidelines. Directions and guidelines will not be legislative instruments but must be published on the Department’s website and tabled in Parliament within 15 sitting days unless an ‘interests of justice’ delay exception applies (proposed subsections 188GAA(4)–(6)).

Part 11— Harmonising termination grounds for judicial officers

Item 66 will repeal and replace section 186 which deals with the termination of the appointment of the Judge Advocate General (JAG), or a Deputy Judge Advocate General (DJAG). The EM states the amendments ‘harmonise the DFDA with longstanding constitutional principles governing judicial tenure’ (p. 110):

The amendments ensure that judicial officers appointed as JAG or DJAG are insulated from executive termination except in the limited circumstance where they lose their underlying judicial office. This preserves judicial independence and ensures that District and County Court judges receive equivalent protections to those afforded to Federal and Supreme Court judges.

Part 14—Removal orders for intimate images

Currently, where a person is convicted of a cyber-bullying offence (section 48A), a service tribunal may order the person to take reasonable action to remove any online material involved (section 84A). Part 14 will expand this removal order power for service tribunals to any other service offence which involves material which is ‘an intimate image of another person’ (proposed subsection 84A(1A)).

Part 15— Extinguishing convictions for historical homosexual service offences

The EM notes (p. 115):

Until 1990, the Defence Force maintained a policy prohibiting homosexual members, and over many decades before that policy changed, a number of Defence Force personnel were charged with and convicted of service offences solely because they engaged in consensual same‑sex activity. While many individuals were administratively or medically discharged, some were convicted under the DFDA, the Defence Act, the Naval Defence Act 1910, or earlier Imperial Acts that applied to Australian forces. These convictions are now recognised as discriminatory and inconsistent with contemporary Australian law and community standards.

Part 15 will establish a framework for the extinguishment of historical homosexual service offences. Item 80 inserts proposed section 190C which allows a person convicted of an historical homosexual service offence, or a person with a special interest in the conviction, to apply to the CDF for the conviction to be extinguished.

An historical homosexual service offence will be:

• an offence before 1995 under the DFDA, the Defence Act 1903, the Naval Defence Act 1910 or under any instruments or regulations under those Acts, or an offence under any Act or instrument prescribed by the regulations during a period prescribed by the regulations

• where the conduct constituting the offence involved:

• a person engaging in sexual intercourse or another form of sexual activity with another person of the same sex; or
• a person procuring another person of the same sex to engage in sexual intercourse or another sexual activity with a person of the same sex.

The EM states this definition will capture ‘the various legislative regimes, including Imperial Acts applied by reference that governed Australian military discipline prior to the DFDA framework’. It notes the ‘1995 cut‑off reflects the point by which consensual same‑sex conduct was no longer treated as an offence under contemporary Defence law and policy, thereby marking the historical boundary of the scheme.’ (p. 116)

The definition of historical homosexual service offence also extends to offences that consist of attempts, conspiracies, or incitement to engage in same‑sex conduct (proposed subsection 190C(3)).

Under proposed subsection 190C(4) an authorised officer must extinguish a conviction if:

1. they are not aware of any grounds for suspecting that the conduct was non‑consensual
2. they are satisfied the conduct would not have constituted an offence had it involved persons of different sexes and
3. where the application is made by another person with a special interest, is satisfied ‘that it is appropriate in the circumstances for the application to be made by that person’.

Where a conviction is extinguished (proposed subsection 190C(6)):

• the conviction must be expunged from the person’s service record, conduct record and unit record

• the conviction must not be disclosed under the DFDA disclosure provisions

• the person is:

• not required to disclose the fact they were charged or convicted of the offence and

• may claim on oath or otherwise that they were not

• anyone else who knows, or could reasonably be expected to know, that the offence has been expunged is prohibited from disclosing the fact without the consent of the person or take into account the fact that the person was charged or convicted of the offence.

Proposed subsections 190C(7) and (8) provide for the internal review of decisions concerning applications by the CDF who may affirm or set aside decisions and substitute new decisions.

Currently, Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) lists classes of decisions which are excluded from the operation of the legislation, including decisions made the DFDA (paragraph (o)). Item 79 will amend this paragraph of the ADJR Act to provide that decisions made under proposed subsection 190C(8) will not be excluded from review. The EM states this will ‘ensure that internal review decisions made by the CDF are subject to judicial review …’ (p. 115)

Schedule 6—Transitional rules

Schedule 6 provides the Minister with the power to make rules, by legislative instrument, including rules prescribing ‘matters of a transitional nature … relating to the application of amendments or repeals made by this Act to proceedings under the [DFDA Act] …’ (subitem 1(2)).

The EM states the transitional rule-making power is needed to ‘ensure the smooth and seamless transition between the existing discipline system and the new legislative framework’ and ‘deal with unintended outcomes or unforeseen issues arising from the transition from the old DFDA to the new DFDA’ (p. 120). As well as other common restrictions on transitional rule-making powers (subitem1(4)), in relation to the application of the amendment to proceedings, the Minister must be satisfied ‘making the rules is in the interests of justice or otherwise desirable to accord fairness in such proceedings’ (subitem 1(3)).