Chapter 2 - Australia's
military justice system: an overview
The ADF has a military justice system to support commanders and
to ensure effective command at all times. It is vital to the successful conduct
of operations and to facilitate its activities during peacetime, including the
maintenance of operational preparedness. Establishing and maintaining a high
standard of discipline in both peace and on operations is essential for
effective day-to-day functioning of the ADF and is applicable to all members of
the ADF. The unique nature of ADF service demands a system that will work in
both peace and armed conflict. Commanders use the military justice system on a
daily basis. It is an integral part of their ability to lead the people for
whom they are responsible. Without an effective military justice system, the
ADF would not function...Discipline is much more an aid to ADF personnel to
enable them to meet the challenges of military service than it is a management
tool for commanders to correct or punish unacceptable behaviour that could
undermine effective command and control in the ADF. Teamwork and mutual support
of the highest order are essential to success. Obedience to lawful direction is
an intrinsic requirement expected from the most junior to the most senior
members of the ADF.
The military justice system exists to support the
peacetime and operational activities of the Australian Defence Force (ADF),
serving to maintain discipline and reinforce the chain of command. The military
justice system has two distinct but interrelated elements: the discipline
system and the administrative system.
This chapter provides a very brief overview of the main
processes and players within the military justice system. Its intention is to
inform subsequent discussion rather than provide a comprehensive description of
The Structure of the Australian Defence Force
Before considering the military justice system, it is
useful to provide an initial outline of the structure of the ADF.
The ADF is constituted under the Defence Act 1903, and
its mission is to defend Australia
and its national interests. General
control and administration of the ADF resides with the Minister for Defence.
The Chief of the Defence Force (CDF) and the Secretary of the Department for
Defence (the Secretary) are jointly responsible for the administration of the
Defence Force, and are accountable to the Minister. CDF has delegated the
command of Navy, Army and Air Force to the respective Service Chiefs.
The ADF functions through a 'Chain of Command',
extending from CDF, through the Service Chiefs, and throughout the entire ADF. Below the statutorily appointed
commanders (the CDF and Service Chiefs), are subordinate single Service and
joint Commanders of the major environmental or regional commands and Commanding
Officers of joint and single Service flotillas, formations, groups, ships,
bases, establishments, squadrons and units. All members of the ADF are under
command of some nature. A Commander
is responsible and accountable for those personnel, assets and activities
assigned under his or her command.
The two branches of the military justice system—the
discipline and administrative systems—are designed to support this command and
Diagram One: Structure of the
Military Justice System.
The discipline system
The discipline system provides a framework within which
disciplinary and criminal offences are investigated and prosecuted, regardless
of whether offences are committed during peacetime or operational activities,
or overseas. The Defence Force Discipline
Act 1982 (DFDA) underpins the discipline system, providing for the
investigation of disciplinary offences, types of offences, available punishments,
the creation of Service tribunals, trial procedures before those Service
tribunals, and rights of review and appeal.
The importance of the discipline system to the overall
effectiveness of the ADF was a recurrent theme throughout the course of this inquiry.
In both his main and supplementary submissions, General Cosgrove
reinforced the operational need for an effective discipline system in response
to the unique requirements of military service, stating:
The control and exercise of discipline, through the military
justice system, is an essential element of the chain of command. This has not
been challenged during the Inquiry and remains a significant distinguishing
feature of military justice.
The Judge Advocate General of the Australian Defence
Force, Major-General Justice Roberts-Smith, standing statutorily independent of
the ADF chain of command, also endorsed the proposition that the discipline
system is vital to the operational effectiveness of the ADF:
The historical need for a discipline system internal to the
military force has been recognised by the High Court of Australia in a number
of cases—and I think I have referred to them in my submission. So that need, as
I would see it, is beyond debate in terms of principle.
James of the Australian Defence Association
also supported the notion that military discipline is essential to the
operational effectiveness of the defence forces. He stated:
The association considers the following broad philosophical and
practical points are relevant to any review of the military justice system.
First, a democracy cannot maintain an effective Defence Force without that
force being subject to a code of disciplinary legislation that specifically
covers the purposes, situations, conditions and exigencies of war. No extension
of civil codes of law can, or necessarily should, meet those requirements. This
inquiry, therefore, is surely about improving the Defence Force Discipline Act
rather than abolishing it. Second, discipline is both a lawful and an operationally
essential component of command.
also stated that common standards of discipline for peace and on operations are
Discipline is integral to the effectiveness and efficiency of
professional fighting forces. In preparing for armed conflict during times of
peace, members of the ADF must behave to those same exacting high standards
which will be demanded in the event of armed conflict
In both peace and times of armed conflict, the margin for error
or omission without tragic consequences will often depend upon inculcated
habits of discipline to instantly obey lawful directions and orders...High
standards of discipline are integral to military service during peacetime,
particularly for a realistic training environment. Disciplinary standards
cannot be dependent on the level of readiness at which a particular unit may be
General Cosgrove also asserted that the ability to deal
with discipline and criminal conduct under a military code of justice is
particularly necessary during operational deployments outside Australia,
providing a 'stand alone' code where a civilian jurisdiction may either not
apply or does not exist. The discipline system also allows service personnel to
be dealt with under Australian law, rather than falling under the jurisdiction
of foreign countries or the International Criminal Court. The justifications for the maintenance
of a separate and distinct military justice system reflect the unique role the
defence forces perform and the standards of conduct demanded from service
Offences under the Defence Force Discipline Act
Because of the unique functions performed by the ADF,
the military justice system differs significantly from forms of regulation
encountered in other employment environments requiring a more stringent degree
of discipline and proscribing a broader range of behaviours. The DFDA creates
three categories of offence:
military discipline offences for which there are
no civilian counterparts (e.g. absence without leave, insubordinate conduct,
disobedience of a command, etc);
offences with a close civilian criminal law
equivalent (such as assault on a superior or subordinate);
civilian criminal offences imported from the law
applicable in the Jervis Bay Territory.
The incorporation of civilian criminal offences into
the discipline system enables the extraterritorial application of Australian
laws when members are deployed overseas in circumstances where an adequate
criminal law framework is absent, or the application of host country law is otherwise
Where jurisdictional overlap occurs during peacetime in
Australia between the military justice system and the civilian criminal law,
jurisdiction under the DFDA can only be exercised where proceedings can
reasonably be regarded as substantially serving the purpose of maintaining or
enforcing Service discipline. Otherwise, criminal offences or illegal conduct
is referred to civilian authorities for investigation and prosecution. Under
section 63 of the DFDA, the consent of the Commonwealth Director of Public
Prosecutions is required to deal with serious offences (such as murder,
manslaughter and certain sexual offences) under military jurisdiction. Where a
member is being prosecuted under the civilian criminal justice system, they cannot
be subjected to the DFDA for the same or a similar offence.
Where offences are prosecuted under military
jurisdiction, the DFDA provides for the creation of Service Tribunals with the
power to try ADF members. There are three types of tribunal:
Defence Force Magistrates (DFMs); and
Summary Authorities (SA).
There are two levels of Court Martial: General Court
Martial (GCM) and Restricted Court Martial (RCM). The procedures for both are
essentially the same. The difference between the two lies in the rank of the
president, and number of other members.
Only military officers can be members of courts martial, and a legal officer
acting as Judge Advocate is always present. Members are currently appointed by the
convening authority, through authority extending through the chain of command
from the CDF. This may change following the implementation of legislation
originally scheduled for introduction into Parliament during 2004. Under the proposed changes, the
Registrar of Military Justice (RMJ) will convene courts martial and appoint
panel members, although this will still occur through the command chain
extending from CDF.
Defence Force Magistrates
DFMs have the
same jurisdiction and powers as an RCM and provide an alternative to Courts
Martial for dealing with serious offences. DFMs must be military legal officers
and are appointed by the Judge Advocate General (JAG), by authority of the
chain of command extending from the CDF.
Summary Authorities have limited powers of punishment
and are generally used to try less serious offences. There are three levels of
SA: Subordinate Summary Authority (SSA), Commanding Officer (CO) and Superior
Summary Authority. Only officers of the ADF may be appointed as Summary
Authorities. Summary Authorities are also appointed through the chain of
command extending from CDF.
The DFDA also provides for the appointment of
Discipline Officers to deal with acts or omissions that are otherwise capable
of being charged as Service offences under the DFDA. The Discipline Officer
system allows for the expeditious handling of minor infractions committed by
non-commissioned rank and officer cadets, and applies where the member admits
the misconduct and there is no dispute as to the facts.
Reviews and appeals
The DFDA provides for a number of review and appeals
All SSA convictions and punishments must be
automatically reviewed by the CO and include an examination by a Service
lawyer, who may transmit the review to a reviewing authority.
Service offences convicted by a Service Tribunal are
automatically reviewed by a reviewing authority. Further review is possible by
lodgement of a petition to the reviewing authority by the convicted member. It is also possible for further review
by the relevant Service Chief or CDF.
Convictions (but not punishments) handed down from
Courts Martial or DFMs may also be appealed to the Defence Force Discipline
Appeals Tribunal (DFDAT). Appeals
are only possible on questions of law—appeals concerning questions of fact
cannot be made to the DFDAT. The
Tribunal is composed of Federal, State and Territory Judges appointed by the
Subsequent appeals from a decision of the DFDAT can be
lodged, on questions of law only, with the Federal Court. Appeals from the Federal Court may
ultimately be lodged with the High Court.
The Inspector-General of the Australian Defence Force
(IGADF) also has capacity to review disciplinary processes.
Provision of legal assistance
Throughout the investigation, tribunal and appeals
processes, legal advice is available to Service personnel at the expense of the
Key military justice appointments and agencies
There are a number of agencies and appointments that
perform key roles in the Military Justice System.
The Office of the Inspector-General of the ADF
The inaugural Inspector-General of the Australian
Defence Force (IGADF) was appointed by the CDF in January of 2003. The Office
of the IGADF was opened in September 2003. Broadly, the Office of the IGADF is
intended to provide a mechanism whereby the military justice system is reviewed
and audited, independently of the chain of command. The IGADF reports directly
to the CDF, and may investigate matters arising from both the discipline and
The role of the IGADF is to identify systemic causes of
injustice within the military justice system, rather than supplant existing
avenues of recourse available to individuals. Any person may make a submission
to the IGADF, including current and former ADF members, Australian Defence
Organisation (ADO) personnel, family members and friends, and members of the
public. The IGADF does not have the
power to implement measures arising out of his or her investigations. The
IGADF's only power is to make recommendations to other authorities who may
remedy the matter.
The Defence Legal Service
The Defence Legal Service (TDLS) provides legal support
(including policy advice regarding the operation of the military justice system)
to the Defence Organisation. Legal officers provide advice and assistance to
commanders concerning the decision to charge and prosecute offences.
The Director of Military Prosecutions
The position of the Director of Military Prosecutions
(DMP) was created by a Defence Instruction (General) (DI(G)) issued by the CDF
and the Secretary, Department of Defence, in July 2003. Currently, the DMP acts
in an advisory capacity to convening authorities. It was anticipated that
legislation formally establishing the DMP as a statutory appointment would be
introduced into Parliament during 2004, but as yet the Government has not done
so. If legislation is introduced, the DMP will replace the convening authority
as prosecutorial decision maker. The DMP's current functions include conducting
prosecutions at court martial and DFM trials and representing the ADF at
appellate trials and courts. The DMP may also provide advice to commanders
concerning whether to prosecute an individual.
The Registrar of Military Justice
The Registrar of Military Justice currently deals with
the case management of disciplinary justice trials, and is intended to assist
in the reduction of delays in the military justice system. Legislative
alteration to the role of the RMJ was intended during 2004. When the DMP
replaces the convening authority as prosecutorial decision maker, the RMJ will
assume responsibility for convening courts martial and DFM trials. It is
intended that the RMJ will take on a function analogous to a civilian registrar
or court administrator.
The Judge Advocate General
The Judge Advocate General (JAG) has oversight and
control over the operation of the judicial aspects of the discipline system.
Under the terms of the DFDA, the JAG must be a judge of either the Federal or a
state Supreme Court. The functions of the JAG are to:
provide an annual report to the Minister
Assisting the Minister for Defence on the operation of the DFDA;
make procedural rules for Service tribunals;
act as the final avenue of legal review of
proceedings within the ADF; and
appoint DFMs, Judge Advocates and other legal
Chief Judge Advocate
The statutory position of Chief Judge Advocate (CJA)
was created in 2003. The CJA provides administrative assistance to the JAG, and
must be a member of the panel of Judge Advocates.
Judge Advocates (JA) are appointed by the JAG, and are
Permanent or Reserve legal officers. They are nominated to courts martial to
advise, rule and direct on matters of law.
Each of the three Services has a police organisation.
All three organisations report to the Provosts-Marshal of the Navy, Army and
Air Force, and remain under the ultimate command of the respective Chiefs of
Service. Service police are responsible for the prevention, detection and
investigation of all offences committed by ADF members.
The administrative system deals with the decisions and
processes associated with the control and administration of the ADF. In a similar vein to structures in many
organisations, it is designed to encourage Service personnel to maintain high
standards of professional judgement, command and leadership.
The administrative system broadly comprises an inquiry
system, adverse administrative action in response to member conduct, and internal
and external review processes.
It should be emphasised that the administrative system
should not operate as a mechanism through which disciplinary offences committed
by individuals are punished, nor should it be used to investigate whether ADF
members have committed an offence against the DFDA or civilian criminal laws.
The administrative system is primarily aimed at improving ADF processes—any
adverse findings or recommendations concerning the conduct of members are
incidental to this primary purpose.
Administrative inquiries are conducted to establish the
facts surrounding incidents that may affect the ADF. They are initiated by COs
for the purpose of determining what happened and why, in order that appropriate
action may be taken to prevent the recurrence of similar incidents, or policy
and/or systemic improvements may be made. There are two main documents
providing guidance and instruction concerning the conduct of administrative
inquiries—The Guide to Administrative
Decision Making and Administrative Inquiries Manual.
There are five types of administrative inquiry:
an Investigating Officer (IO) Inquiry under the Defence (Inquiry) Regulations (D(I)R);
a Board of Inquiry (BOI) under the D(I)R;
a Combined Board of Inquiry (CBOI) under the
a General Court of Inquiry (GCOI) under the D(I)R.
Each of these types of inquiries has four distinct
the 'Quick Assessment,' where the nature and
gravity of the occurrence, the extent of information required, and type of
inquiry needed is determined;
decisions on recommendations arising from the
implementation of recommendations.
Routine Inquiries derive their authority from the
powers of command of the CO and are the only inquiries not established under
the D(I)R. They typically involve
less complicated matters, and are conducted with as little formality as
IO inquiries deal with matters of a more serious nature
than those under routine inquiry, and are governed by the provisions of the D(I)R.
They are commonly used by COs to investigate significant
matters concerning the ADF, but are not empowered to conduct a criminal or
disciplinary investigation nor conclude that an offence has been committed. COs, acting in the capacity of
Appointing Authority (AA), may appoint a member of the ADF or a civilian as an
IO, and may also appoint one or more officers to act as inquiry assistants.
Boards of Inquiry
BOIs may be appointed by the CDF, the Secretary, and
the Service Chiefs or their delegates. They are empowered to inquire into any
matters concerning the administration or aspects of the command and control of
the ADF, and are typically convened to examine serious incidents. BOIs are not
empowered to conduct a criminal or disciplinary investigation or conclude that
an offence has been committed. BOIs
must have at least two members, one of whom must be an officer. Suitably
qualified civilians may also be appointed.
Combined Boards of Inquiry
CBOIs are established to inquire into matters
concerning the ADF and the armed forces of another country. The Minister for
Defence or his/her delegate is the AA. This form of inquiry has not been used
General Courts of Inquiry
GCOI are reserved for the most serious incidents
affecting the ADF. The Administrative
Inquiries Manual provides:
A General Court of Inquiry may be appointed where there exists a
serious national interest in the matters to be the subject of the inquiry and
there is a likelihood that an inquiry by the Defence Force may be perceived to
be biased because of the involvement, in the matters to be the subject of the
inquiry, of the most senior officers of the Australian Defence
A GCOI is presided over by a Judge or experienced legal
practitioner, and is appointed by the Minister for Defence. To date there has
been no appointment of a General Court of Inquiry.
Safeguards and rights
There are a number of safeguards and rights surrounding
the conduct of administrative inquiries. Notably, basic administrative law
principles have to be conformed with, including affording natural justice to
members that might be adversely identified during the course of an inquiry.
Such members are entitled to legal advice at the Commonwealth's expense.
Evidence collected during administrative inquiries cannot be used for
disciplinary or criminal proceedings, with a statutory exception relating
offences against the D(I)R.
Upon completion of an inquiry, a report must be
submitted to the AA. The AA must consider the report and ensure that it
adequately addresses the terms of reference (TOR),
that the evidence supports the findings and the recommendations are
appropriate. As part of this initial
review process, the AA must obtain advice from a legal officer. The Legal
Officer must review the report and consider whether the investigation
satisfactorily addresses the TOR, whether the
conclusions are supported by the evidence, and any other relevant matters.
Where factual findings are made regarding the
professional conduct of a member, and adverse administrative action is
recommended, that member must be issued with a Notice to Show Cause before any
decision is taken to impose adverse administrative action. The Notice should
outline the facts and circumstances which are relied upon or taken into account
in the decision to initiate the adverse administrative action and any other
relevant factors, enclose all evidence, and provide an opportunity for the
member to reply. Once the member has
responded, the response must be reviewed and a decision made regarding whether
or not to proceed with the adverse administrative action. Where adverse
administrative action is pursued, review processes are outlined below.
Where it appears that a member may have committed a
disciplinary offence, all or part of an inquiry may be suspended, pending a
decision on whether the matter ought to be referred to the Service or civilian
police for investigation. Referral may also occur at the conclusion of an
The role of civilian authorities
All injuries or deaths occurring in Australia
may be subject to criminal investigation by civilian police or coronial
inquiry, irrespective of whether the ADF has conducted its own disciplinary
investigation or administrative inquiry.
Where possible, the reports of the relevant ADF investigation or inquiry will
be made available to the relevant civilian authority.
Adverse administrative action
Adverse administrative action is taken in response to a
member's behaviour or performance, in circumstances where conduct falls below
the standards required by the ADF, but does not constitute criminal conduct or
warrant the initiation of disciplinary proceedings under the DFDA.
Adverse administrative action varies in nature, and
includes formal warning, censure, removal from duty, reduction in rank, or
discharge. It may follow from a DFDA matter, a civilian criminal charge, or an
administrative inquiry where the facts demonstrate that conduct has occurred
which is unacceptable for a member of the ADF.
Policy guidance and/or instruction concerning the
initiation of adverse administrative action is found in The Guide to Administrative Decision Making.
Internal review mechanisms
There are a number of internal mechanisms available to
review administrative system processes. In the first instance, the ADF prefers
that members seek resolution of complaints at the lowest level possible through
normal command channels and administrative arrangements. Where the complaint cannot be resolved
in this manner, members may lodge a Redress of Grievance (ROG) and/or make a complaint
to the IGADF.
Redress of Grievance
The ROG process provides a formal mechanism whereby
complaints may be investigated and reviewed, and where necessary, wrong or
unfair decisions or actions may be corrected.
Oversight of the ROG system is vested in the Director of the Complaint
Resolution Agency (CRA) and the Secretary.
A complaint through the ROG system may only be made by
a member of the ADF, and must be submitted to the member's CO. The CO must then conduct an
investigation into whether grounds exist to support the complaint, and where
possible, resolve the matter. Where
a member is unsatisfied with the result of the CO's investigation, he or she
may request that the complaint be referred to the relevant Service Chief, at
which time the complaint is forwarded to the CRA. The CRA allocates a case
officer to review the complaint on the Service Chief's behalf.
If the complainant is an officer or warrant officer,
and is unsatisfied by the Service Chief's review, the member may request an
additional review by CDF.
Inspector General ADF
As outlined above, the IGADF has the capacity to
investigate complaints relating to the operation of the administrative system.
In unusual circumstances, a complaint may be lodged with the IGADF irrespective
of whether an ROG has been lodged with a member's CO. This usually occurs when
the member feels unable to report concerns to, or has lost confidence in, his
or her chain of command.
External review mechanisms
In addition to the internal review mechanisms available
to ADF members, there are a number of external review mechanisms.
Defence Force Ombudsman
The Defence Force Ombudsman (DFO) is empowered to
investigate complaints relating to military inquiries and administrative
action, and receives a variety of complaints arising directly from military
justice issues. The DFO also receives complaints concerning a broad range of
other non-military justice issues arising from the management of the Defence
It is standard practice for the DFO to advise
complainants to first utilise the ROG process. The DFO does, however, have the
capacity to investigate if circumstances strongly indicate that a member may be
unable to use the ROG process. Concerned parents, partners or friends of
members may also complain to the DFO, but before undertaking an investigation,
the DFO requires compelling evidence concerning a member's inability or
unwillingness to pursue the issue on his or her own behalf.
Other processes of review
A member may also lodge a complaint with the Human
Rights and Equal Opportunity Commissioner, may make Ministerial
representations, and may also appeal to the Federal Court.
In addition to the organisations and offices outlined
above, there are a number of other entities that are relevant to this inquiry.
The Defence Community Organisation
The Defence Community Organisation (DCO)is the primary
means through which Defence provides social work and support services to the
families of ADF members. It also supports the ADF chain of command to care for
Service personnel. The DCO has
some 230 employees working as a network of teams throughout Australia.
It coordinates the ADF's efforts when a family loses a serving member or is in
a crisis situation, providing a broad range of support services and acting as
the liaison point between the ADF and the families. The DCO also supports the
creation of a network of support for Defence families more generally.
Complaints Resolution Agency
The Complaints Resolution Agency (CRA) conducts
administrative reviews of ROGs referred by ADF members for consideration by the
CDF and the three Service Chiefs.
It will only investigate a matter if it has been initially dealt with by the CO.
The framework within which the military justice system
operates comprises legislation, regulations, and policy documents. The main
documents relevant to the terms of this inquiry are listed below.
Defence Force Discipline Act
The DFDA provides the legislative framework for the
Discipline system. It creates tribunals to try members of the Defence Force on
charges of Service offences against the Act, and also provides these tribunals
with powers to try civilians accompanying the Defence Forces on operations. The
act creates a system of appeals, and also covers related matters such as:
investigation of offences;
suspension from duty; and
The DFDA is complemented by the Discipline Law Manual (DLM). The DLM provides Defence Force members
with basic guidance on the law relating to the investigation, hearing and trial
of Service offences, the review of proceedings of Service tribunals, and
petitions and appeals against Service tribunals.
The Defence (Inquiry) Regulations 1985 set down the
provisions governing general courts of inquiry, boards of inquiry, combined
boards of inquiry, investigating officers and inquiry assistants and inquiries
by the Inspector-General of the Australian Defence Force. Part XV of the
Defence Force Regulations 1952 contains provisions relating to the redress of
Administrative Inquiries Manual (ADF Publication 06.1.4)
The Administrative Inquiries Manual provides a succinct
but comprehensive description of the entire ADF system for the conduct of
administrative inquiries. It contains general guidance on methodology,
highlights some areas where inquiries could potentially encounter difficulty,
and provides guidance concerning the selection of the most appropriate type of administrative
Defence Instructions (DI)s are issued by the Secretary
and CDF under s9A of the Defence Act 1903. They outline procedures and policies
that are to be implemented throughout the ADF. The Chiefs of Army, Navy and Air
Force may also issue Defence Instructions applicable within their respective Service.
Service DIs must, however, be consistent with the DIs issued by CDF and the
Having outlined the basic military justice framework,
attention now turns to the issues arising in the administrative and
Part 2 - The disciplinary system
Having provided an overview of the military justice system,
Part 2 of the report discusses the issues arising in the disciplinary context.
Cosgrove, Chief of Defence Force, described
discipline within the Defence Forces as:
Essential to command—a non-negotiable requirement for
operational effectiveness. For this reason, the control of the exercise of
discipline, through the military justice system, is an essential element of the
chain of command, from the most junior leader upwards... discipline is much more
an aid to ADF personnel to enable them to meet the challenges of military
service than it is a management tool for commanders to correct or punish
unacceptable behaviour that could undermine effective command and control in
Part 2 seeks to identify the various issues surrounding the
way discipline is meted out in the ADF. It examines the three major phases of
the disciplinary process:
the investigation of suspected criminal activity
by the Service police;
the provision of legal advice for the initiation
and conduct of prosecutions, and the defence of the accused; and
the structure of disciplinary tribunals.
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