Chapter 2 - Provisions of the Bill

Chapter 2 - Provisions of the Bill


2.1        The Defence Legislation Amendment Bill 2007 follows on from the findings of the June 2005 Senate Foreign Affairs, Defence and Trade References Committee report, The Effectiveness of Australia's Military Justice System. The proposed amendments recognise that a separate system of military justice is essential to enable the Australian Defence Force (ADF) to deal promptly and effectively with matters of discipline, and in a different environment than that which would apply to a civilian.  According to Defence, not only must the ADF deal with 'matters of a criminal nature applicable to the wider community',[1] but also a range of disciplinary matters that constitute significant failings in a professional and disciplined armed force.

2.2        However, the proposed amendments also reform the system to provide a greater degree of scrutiny, and a strengthening of safeguards so that the military justice system is far less vulnerable to potential abuse.

The bill's core initiatives

Appeal to the Australian Military Court (AMC)

2.3        While the Defence Force Discipline Act 1982 (DFDA) provides a quasi-appeal system of rights to petition a Reviewing Authority (which includes a Service Chief and the Chief of the Defence Force), there is currently no mechanism available for an ADF member to appeal to a Court Martial (CM) or Defence Force Magistrate (DFM) in respect of a conviction and/or punishment imposed by a summary authority.

2.4        In its 2005 report on Australia's military justice system, the committee recommended the introduction of a right to appeal from a summary authority to the permanent military court.  It argued that service personnel should have this right for all charges that could potentially lead to a criminal record which could have a significant impact on their lives after they leave the military.  The bill gives effect to the recommendation by introducing an automatic right of appeal from a summary authority to a single military judge of the Australian Military Court (AMC).  The appeal may be in respect of a conviction, any punishment imposed, or the imposition of a ‘Part IV order’ (primarily reparation or a restitution order).[2]

2.5        The bill provides that a Military Judge of the AMC will have a statutory discretion to deal with an appeal on its merits by way of a fresh trial and/or a ‘paper review’[3] of the evidence.  Should the punishment be altered following the appeal process, a Military Judge shall not be able to impose a punishment greater than the maximum punishment available to the summary authority at the original trial.

Election for trial by the AMC

2.6        According to the Explanatory Memorandum (EM), the DFDA currently allows an accused the opportunity to elect punishment or trial by a CM or DFM, but only in certain limited circumstances, namely where a summary authority believes that in the event of conviction, a more severe ‘elective punishment’ is likely to be awarded.  In seeking more appropriate mechanisms for the ADF's justice system, in 2005 the committee reviewed both the United Kingdom and the Canadian armed forces' mechanisms for dealing with justice issues.  The committee considered that the British summary discipline model—including the right to elect trial by a court martial—as implemented in the Armed Forces Discipline Act 2000 provided a greater degree of independence than the ADF system.  It considered that the introduction of similar mechanisms would better protect ADF members’ rights, and contribute to the provision of impartial and fair disciplinary outcomes.[4]

2.7        This bill will provide the accused with the right to elect trial by a Military Judge of the AMC for all but a limited number of certain disciplinary offences (Schedule 1A offences),[5] similar to the scheme available in the Canadian armed forces summary discipline system.  Although these offences are dealt with at the summary level, according to the EM they will find the balance between reinforcing the maintenance of service discipline and preserving the rights of individual members who will still have an automatic right of appeal.[6]

2.8        Additional safeguards have been included for these offences including, for example, limited punishments.  These additional safeguards for the accused person will be further supported by the new appeals system and automatic reviews of all summary trials.

Simplified rules of evidence

2.9        The Explanatory Memorandum noted that there has been widely held concerns that current summary procedures are overly legalistic and complex.  It cited in particular, the evidence regime currently applicable to summary trials, which it deemed to be overly complex and not easy to apply by persons without formal legal training.

2.10      The bill stipulates that a summary authority will not be subject to the same formal rules of evidence that apply to the AMC.  The Explanatory Memorandum suggests that the bill 'will provide that evidentiary principles continue to apply at the summary level to ensure a fair trial and the protection of individual rights'.  It noted that summary hearings will become more efficient and timely, while maintaining all the necessary safeguards for an accused person.[7]

Review of proceedings of summary authorities

2.11      The existing petition and command review regime contained in Part IX of the DFDA is to be discontinued and replaced by a system of appeals to the AMC. However, a form of review—by a ‘reviewing authority’—is to remain in respect of technical errors related to the awarding of punishments and orders.

2.12      In terms of more severe punishments, an additional safeguard will apply through a pre-existing requirement for those punishments to be approved by a reviewing authority before they take effect.  In exercising this power, a reviewing authority will be able to quash a punishment or revoke an order and substitute a less severe punishment or order within the trying authority’s jurisdiction—there will be no power to increase a punishment.  The proposed system of appeals to the AMC will then apply from the time the punishment is approved.[8]

2.13      According to the Explanatory Memorandum, the intention of this review process is to provide additional safeguards for ADF members by providing another mechanism by which to correct inappropriately awarded punishments or orders that may not otherwise have been the subject of an appeal to the AMC.  A review of this type will also give commanders an overview of disciplinary issues in their commands.[9]

2.14      In summary, a reviewing authority may:

Offences and punishments

2.15      A review of offences and punishments in the DFDA resulted in a number of proposed changes that will be effected in the bill.  These changes will make an immediate contribution to the improvement and simplification of offences and punishments in the DFDA.  The Explanatory Memorandum summarises these changes as follows:

Additional changes

2.16      The 2001 Report of an Inquiry into Military Justice in the Australian Defence Force by Mr J.C.S. Burchett QC also made a number of recommendations.  This bill provides the opportunity to introduce those agreed recommendations. When implemented these are intended to streamline and improve the ADF discipline system.  In summary, these changes are:

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