On 12 August 2021, the Defence Legislation Amendment (Discipline Reform) Bill 2021 (the bill) was introduced into the House of Representatives by the Minister for Veterans' Affairs and Minister for Defence Personnel, the Hon Andrew Gee MP.
On 26 August 2021, through the Selection of Bills Committee Report No. 10 of 2021, the provisions of the bill were referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the Committee) for inquiry and report by 14 October 2021.
Conduct of the inquiry
The Committee advertised the inquiry on its website, calling for submissions by 17 September 2021. The Committee also wrote directly to a range of organisations, statutory office holders and individuals inviting them to make written submissions.
The Committee received eight submissions to the inquiry which are listed at Appendix 1. The Committee decided to prepare its report on the basis of submissions received and available information. The Committee thanks those who made submissions.
Background to the bill
2017 review of the Summary Discipline System
On 23 November 2016 the then Chief of the Defence Force (CDF) raised his concerns, and those of the Service Chiefs, that the summary discipline system (SDS) 'had become overly complex and difficult to use, unresponsive to command, characterised by delay and costly to operate'. An internal review of the SDS was commissioned by the CDF and the final report, Review of the Summary Discipline System 2017 (the review), was provided the following year.
The review identified a number of earlier inquiries into various aspects of the military justice system that it had regard to in its consideration, and noted that '[m]any of the issues, command concerns and problems identified by this Review concerning the SDS have been raised in previous reviews dating back as far as…1989'.
The final report of the review found that:
…the current SDS is overly complex, difficult to use, unresponsive and characterised, because of its complexity, by excessive delay. As a consequence of the complexity of dealing with military discipline matters, many commanders across each of the Services have little confidence in using the SDS for its intended purpose of maintaining or enforcing service discipline.
The review identified three 'key findings':
Day-to-day command management and oversight of the SDS is essential. This responsibility needs to extend downwards from commanders at all levels within the ADF.
The application of criminal justice principles, particularly in relation to investigation, rules of evidence and standard of proof, together with the adversarial nature of the conduct of disciplinary proceedings by non-legally trained members of the ADF is overly complex and [is] not conducive to an effective and efficient summary discipline regime. The result is that often the military disciplinary effect of summary proceedings is lost because of complexity and excessive delay. It is neither timely nor responsive to command, nor are the delays fair to those impacted. Despite the introduction of section 146A into the Defence Force Discipline Act 1982 (DFDA) on 20 September 2008, intended to lessen the overly legalistic and complex summary procedures, many of the issues remain.
There is a lack of coordinated, ongoing and timely training and education to support command, and the wider Defence Force community, in understanding and using the SDS. The recommended SDS and enhanced Discipline Officer regime will lessen the complexity of the training burden, but will not negate the requirement for consistency and currency of education and training for participants in the SDS, in particular for the Services pre-Command courses.
The review made recommendations to reform the discipline infringement scheme and summary discipline system; and the bill seeks to give effect to the substantive recommendations of the review.
In the bill's second reading speech, the Minister also pointed to past reviews which had identified issues with the operation of the summary discipline system under the Defence Force Discipline Act 1982 (DFDA). In announcing the proposed amendments under the bill, the Minister for Veterans' Affairs and Defence Personnel, noted that they would 'progress long considered reforms', advising that:
Numerous internal reviews at Defence have found that aspects of the current military discipline system are cumbersome in dealing with minor matters…
This is not surprising given the existing approach dates back forty years and is based on British military discipline law, introduced with the Defence Force Discipline Act 1982.
Reform is required to modernise procedures that predate modern warfare, current technologies and tactical requirements.
The Department of Defence further advised that the DFDA came into effect in 1985 and:
…has now had the benefit of more than 35 years of operation, and significantly, on a wide range of operational deployments. It has been reviewed extensively, but incomplete and overlapping implementation of recommended changes has reduced the coherency of the discipline system.
Current military discipline framework
The DFDA provides a system for maintaining and enforcing military discipline, and all Australian Defence Force (ADF) members are subject to it. The bill's Explanatory Memorandum (EM) outlines the function of military discipline in the ADF:
The military discipline system is essential to enable the Australian Defence Force…to maintain good order and discipline, and to enable commanders to deal with matters that pertain directly to ADF discipline, morale, efficiency, effectiveness and operational readiness. Breaches of military discipline must be dealt with quickly and, sometimes, more severely than would be the case if a civilian engaged in the same conduct.
Defence advised that:
Commanders at all levels have a command responsibility to maintain and enforce discipline and need to have confidence in their use of [the] discipline system. Failure to maintain discipline may put the lives of others at risk, erode morale and adversely impact unit cohesion and fighting capability.
The DFDA establishes a three tiered system of discipline authorities to deal with breaches of discipline:
1. Discipline Officer: deal with certain minor disciplinary breaches by way of infringement conducted on a non-adversarial basis applying procedural fairness. A member must voluntarily elect to be dealt with by a Discipline Officer, and accordingly this system only relates to circumstances where a member admits to the infringement. The range of punishments a Discipline Officer can impose is limited and includes a small fine or minor punishments such as extra duties and stoppage of leave.
2. Summary authority service tribunal: deal with service offences, applying principles of criminal responsibility and are adversarial in nature, conducted at unit level by non-legally qualified personnel. There are three types of summary authority; subordinate summary authority, commanding officer and superior summary authority. The maximum punishment that can be imposed depends upon the type of summary authority and the rank of the offender and includes detention, reduction in rank and a fine.
3. Superior service tribunal: generally reserved for the trial of serious service offences by court martial (General or Restricted) or Defence Force magistrate. The maximum punishment a superior service tribunal can impose depends upon the type of tribunal and the rank of the offender and can include severe punishments such as imprisonment and dismissal from the Defence Force.
Purpose of the bill and key provisions
As noted above, following a number of reviews of the military discipline system, the government introduced the bill to amend the DFDA to 'modernise and streamline disciplinary matters in the Australian Defence Force.'
Defence advised the committee that:
The aim of the disciplinary reforms to the DFDA proposed in the Bill is to make the discipline system easier to use, particularly whilst deployed on operations, by allowing for more minor disciplinary issues to be managed quickly and simply under the disciplinary infringement scheme by a Discipline Officer or Senior Discipline Officer where appropriate, while including additional fairness safeguards; re-align the jurisdiction and application of punishments at the commanding officer and superior summary authority level; and deter behaviour inconsistent with the Defence Values of ‘Service, Courage, Respect, Integrity and Excellence’.
Defence advised why the changes in the Bill are considered essential:
The current adversarial court-like summary discipline system is disproportionately complex in dealing with minor disciplinary breaches where the [breach] of discipline is admitted. Senior non-commissioned officers and junior officers remain reluctant to use it.
The adversarial summary tribunal proceedings remain important and are appropriate for ensuring fairness and justice to members in more serious disciplinary matters or where matters are contested, but are ill suited to dealing with minor disciplinary breaches.
The nature of modern operations means that the DFDA has not always met the discipline needs of deployed units, particularly for those operating at great distances away from the support of formation headquarters.
Defence considers it is now time to make changes to the DFDA to enable a broader range of minor breaches of military discipline to be dealt [with] more simply and quickly and to ensure that the purpose of the DFDA to enforce and maintain discipline meets the requirements of the Australian Defence Force now and into the future.
The bill comprises three schedules to amend the DFDA in regard to disciplinary infringements, summary authorities and service offences. Schedule 4 of the bill deals with contingent amendments.
Schedule 1 - Disciplinary infringements
Schedule 1 of the bill includes at item 14 the repeal of Part IXA of the DFDA to insert a new disciplinary infringement framework into the Act under new Part IA as a means for dealing with minor service discipline which has the stated objective as being both fair and efficient; and meeting the disciplinary needs of the Defence Force.
The EM advises that this reform will 'expand the operation of the disciplinary infringement scheme so that it can be used in more situations and thereby 'enhanc[ing] its effectiveness in dealing with minor breaches of military discipline'. The Minister noted that the reformed scheme will enable:
…a greater range of minor breaches of military discipline to be dealt with more quickly and fairly, and with less formality…than by the more complex and adversarial service tribunal processes.
The EM notes that a disciplinary infringement scheme was introduced into the DFDA within Part IXA in 1995 and that:
…[s]ince its inception, it has been highly effective in dealing with minor breaches of discipline. The Inspector-General of the ADF…has consistently reported that the disciplinary infringement scheme is trusted by defence members as a fair and effective means of dealing with minor breaches of military discipline.
The reformed infringement scheme proposed in the bill establishes a new senior discipline officer, in addition to a discipline officer, to deal with disciplinary infringements. The EM notes that '[t]he senior discipline officer replaces the subordinate summary authority position [see Schedule 2 below] and creates a two-tier infringement scheme.'
The senior discipline officer will have authority to deal with a broader range of disciplinary infringements and has the authority to impose a higher level of punishment than the discipline officer.
The categories of minor disciplinary infringement provisions and disciplinary infringement provisions within the jurisdiction of senior discipline officers are set out under Division 3 of new Part IA; and are separate to service offences contained in Part III of the DFDA.
Schedule 2 – Summary authorities
Part 1 of Schedule 2 of the bill provides for the removal of the lowest level of summary authority, the subordinate summary authority. The EM advises that '[t]ogether with the changes to the disciplinary infringement scheme, this will result in a reformed, and far simpler approach to minor disciplinary matters.'
The EM notes that amendments under Part 2 of this schedule will address:
…a number of anomalies in the Act with regard to the respective jurisdiction of discipline officers and summary authorities, and between the different types of summary authority, in terms of the type of breach of military discipline, the rank of defence members with which each can deal, and the powers and punishments available to each level of authority.
The Minister advised that the proposed amendments in Schedule 2 will:
…[re-align] the rank and punishment jurisdiction of summary authorities, ensuring a logical progression in terms of the rank of the accused person, the seriousness of the breach of military discipline, the level of the punishment that may be imposed and the seniority of the summary authority.
Defence explained the issues that exist within the current discipline authority structure:
Currently the most junior discipline authority, the Discipline Officer, is able to deal with alleged wrong-doing by a much broader rank range, from Private to Captain (Army equivalents), than the more senior subordinate summary authority, who can only deal with the ranks of Private to Corporal (Army equivalents). In creating the position of a Senior Discipline Officer in lieu of the subordinate summary authority, this Bill will align the ranks each can deal with from Private to Captain.
Inequities persist at the upper scale of summary service tribunals. The most senior summary authority, a superior summary authority, can only deal with the ranks of Warrant Officer Class 2 up to the rank of Major General (Army equivalents), and has less power of punishment than the intermediate commanding officer level; this gives the impression of more senior officers being treated more favourably than junior offenders. This is both iniquitous and opaque. The Bill addresses this by providing for the superior summary authority to deal with all ranks up to Major General (Army equivalents) and align the punishments that apply to those of a commanding officer; new punishments have been provided where they exceed the rank jurisdiction of a commanding officer.
Schedule 3 –Service offences
Part 1 of Schedule 3 of the bill introduces the following new service offences into the DFDA: failure to perform duty or carry out activity; cyber-bullying; and failure to notify change in circumstances (concerning the receipt of a benefit or allowance). This part also deals with the failure to comply with a removal order following conviction of a cyber-bullying offence.
Failure to perform duty or carry out activity
Item 1 of this schedule inserts an additional offence relating to the performance of duty, that is, failure to perform duty or carry out activity. Strict liability will apply to this offence. The EM notes that this new offence is intended:
to deal with low level non-performance of duty offences that do not meet the higher standard of criminal negligence which might warrant prosecution by a charge of negligence.
The fault element of recklessness will apply to the physical element at paragraph 35A(1)(a) pursuant to the Criminal Code, and strict liability will apply to the conduct within paragraph 35A(1)(b). This will mean all Criminal Code defences will be available, together with the defence of mistake of fact under section 9.2 of the Criminal Code in relation to the respective physical element.
The proposed new offence within subsection 35A(1) will not apply if the member has a reasonable excuse, 'with the charged member bearing an evidential burden consistent with the Criminal Code (see subsection 13.3(3)).' The EM further notes:
Having regard to the unique nature of military service together with the breadth of duties and activities and including the requirements of the ADF for the performance of a duty, the application of strict liability for the conduct together with all Criminal Code defences including mistake of fact and additionally, a reasonable excuse statutory defence are appropriate and proportionate. The maximum punishment of dismissal from the ADF is proportionate and appropriate.
Item 2 of the Schedule inserts a new class of cyber-bullying offences to 'contemporise offences of this nature within the ADF.' New section 48A will make it an offence for a defence member to use a social media service or relevant electronic service in a way that a reasonable person would regard as offensive or threatening, intimidating, harassing or humiliating another; with the maximum punishment for this offence being imprisonment for 2 years.
The EM notes that bullying conduct using social media services and electronic mediums is as common place in the Defence Force as it is in broader society. The harmful impact of cyber-bullying and its impact on military discipline was also explained:
Cyber-bullying by a member in any form, is conduct that is corrosive to good order and discipline; it is contrary to the Defence Value of respect towards others and has a negative impact on the morale, operational effectiveness, and reputation of the ADF. Cyber-bullying conduct is fundamentally at odds with the requirement that members value others and treat them with dignity.
The EM further notes that new 'section 48A differs from similar civilian criminal legislation in that there is no requirement for the cyber-bullying conduct to be 'serious'':
Section 48A provides for the objective test that a reasonable person would regard the conduct as offensive, or as threatening, intimidating, harassing or humiliating another person. The threshold distinction is important as the availability of this service offence supports the maintenance and enforcement of discipline through deterrence of such conduct by members, which is distinct from the civilian criminal law provisions dealing with criminal behaviour.
Unlike civilian employment, commanders in the ADF are responsible for ensuring the discipline of members under their command. Additionally, commanders are responsible for the safety, health and well-being of people under their command, 24 hours a day, seven days a week. Instances of cyber-bullying within the ADF need to be dealt with quickly by commanders to minimise the impact not only on individuals, but also to the morale and operational effectiveness of the ADF more generally.
Item 5 of the Schedule 3 inserts new section 84A into the Act to provide for a service tribunal to make a removal order following conviction of a person for a cyber-bulling offence under subsection 48A(1) where the offence involved providing material on a social media service or relevant electronic service. This would require that reasonable action is taken to remove, retract, recover, delete or destroy identified material on a social media service or relevant electronic service. The EM notes:
A removal order provision within the Act is appropriate given that offensive, threatening, intimidating, harassing or humiliating material of another person can exist within social media or an electronic service and be accessible by others on an on-going basis, thereby aggravating the harm caused by the cyber-bullying.
Item 2 of the schedule also inserts new section 48B where a defence member will commit an offence for failure to comply with a removal order if it is reasonably practicable to do so; and carries a maximum punishment of imprisonment for two years.
Failure to comply with requirement to notify change in circumstances
Item 3 of Schedule 3 creates a new service offence where a recipient of a benefit fails to comply with a requirement to notify a change in circumstances where those circumstances relate to the entitlement to the benefit. Strict liability will also apply to this offence. The EM notes that:
….the new section 56A is necessarily a strict liability offence, because the offence would otherwise be too onerous to enforce and would thus not operate sufficiently as a deterrent for such conduct.
The fault element of recklessness will apply to the elements at subparagraphs (1)(a) and (b) of section 56A. Strict liability will apply to the failure to comply with the requirement to notify the change in circumstances relating to the recipient’s entitlement to the benefit at paragraph 56A (1)(c).
The EM states that 'there will be no financial impact as a consequence of the Bill.'
Statement of compatibility with human rights
The EM includes a statement of compatibility with human rights which advises that the bill 'is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.'
Consideration by other committees
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee) reported on the bill raising the issues set out below.
Senate Standing Committee for the Scrutiny of Bills
The Scrutiny Committee considered the legislation in its Scrutiny Digest 13 of 2021, raising the following issues:
significant matters in delegated legislation;
reverse evidential burden; and
broad scope of offence provisions.
The Scrutiny Committee requested more detailed information from the Minister on each of these points.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (Human Rights Committee) considered the legislation in its Human rights scrutiny report – Report 10 of 2021 and made comment on the new service offence related to the use of social media and electronic services.
The Human Rights Committee considered that this measure in the bill:
…engages and limits the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, including expression that may be regarded as offensive. This right may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
The committee considers that the measure seeks to achieve the legitimate objective of maintaining or enforcing military service discipline, and the proposed offence may be effective to achieve this. However, questions remain as to whether the measure is proportionate.
The Human Rights Committee advised that it had not yet formed a concluded view on this measure and requested further information from the Minister in order to assess the human rights implications.
On 7 October 2021 the Hon Andrew Gee MP, Minister of Defence Personnel, wrote to the committee indicating that he had written to the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights providing responses to matters identified by the committees in relation to the bill. The minister noted that an issue identified by both committees relates to the proposed new service offence of cyber-bullying at s.48A in Schedule 3 of the bill. Both committees sought advice on the term 'offensive' which forms an element of the proposed cyber-bullying provision.
In response the minister advised that he considers the bill would benefit from including interpretive guidance on the use of a social media service, etc. in the way that a reasonable person would regard as 'offensive'. The minister has instructed Defence to:
proceed with instructions to the Office of Parliamentary Counsel to draft an interpretive clause in the bill along similar lines to s.8 of the Online Safety Act 2021 and s.473.4 of the Criminal Code (which deals with 'offensive' use of social media and telecommunications services respectively), and which could be suitably modified to address the meaning of 'offensive' social media, etc. for the purpose of the proposed s. 48A in the Bill…
Structure of the report
Chapter 2 provides an overview of issues raised in evidence and contains the Committee's view and recommendation.