This chapter examines the key issues raised in submissions in relation to the bill. Submissions largely agreed on the need for reform of the Defence Force Discipline Act 1982 (DFDA) and endorsed the intent of the bill to improve the administration of discipline for those who serve in the Defence Force. While submitters broadly supported the proposed amendments, some submissions raised concerns about certain aspects of the proposed reform of the disciplinary infringements scheme and the new service offences. The chapter concludes with the Committee's view and recommendation.
General views on the bill
Submitters generally provided strong support for the overall intent and objectives of the bill.
The Department of Defence advised that:
…the provisions of the Bill will make long overdue and important changes to the efficiency, effectiveness and fairness of military discipline to be achieved by the proposed amendments to the [DFDA]. A core objective of these changes is to reduce risks to the mental health and well-being of all individuals [affected] by their involvement in a disciplinary event.
The Inspector-General of the Australian Defence Force (IGADF), Mr James Gaynor CSC, advised the Committee that:
My office was consulted on the Bill’s development and I am very supportive of its aims to make aspects of the Australian Defence Force’s summary discipline system simpler to understand and easier, particularly for laypersons, to use. The proposed amendments to the [DFDA] will enhance the overall fairness and efficiency of discipline in the Australian Defence Force.
The Centre for Military and Security Law (CMSL), Australian National University College of Law, described the proposed reforms as 'a balanced and measured response to legitimate criticisms that have been made about the operation of the DFDA as the 21st Century rolls on' and gave broad support for the proposed amendments, noting that:
Each of these reforms are aimed at improving the timeliness, efficiency and effectiveness of the summary discipline system while preserving the protections and rights that exist for a defence member who is accused of breaching service discipline.'
The Defence Force Welfare Association (DFWA) commented on the importance of breaches in military justice being dealt with in a timely manner and agreed that the DFDA needed to be updated to reduce its complexity, noting that the current military discipline system was 'cumbersome' and 'difficult to understand' resulting in 'unnecessary delays in dispensing justice.' The DFWA was broadly supportive of the proposed amendments of the bill which would 'adequately [balance] the need to effectively maintain discipline while protecting the rights and welfare of Defence Members.'
As a former long serving member of the Australian Army, Mr Donald Spinks AM noted the long delays in dealing with minor discipline breaches under the current system which he saw as 'no longer fit for purpose;' and welcomed the 'significant improvements' in the bill to:
…allow commanders to more simply and quickly address poor behaviour, and create opportunity for early intervention to better support the people in our Defence Force, enabling them to continue as a positive contributor to their Service.
The Australia Defence Association (ADA) observed that as ADF personnel undertake an increasing range of domestic and overseas activities, '[t]he ADF disciplinary code needs periodic amendment to keep up.' The ADA described the bill as 'a common sense updating of the ADF's disciplinary code' and concluded that it could 'be safely passed in its present form.'
Expansion of the disciplinary infringements scheme
A number of submitters noted that the existing disciplinary infringement scheme, introduced in 1995, had been well received and was extensively used by ADF command and members, and widely trusted; and therefore welcomed its expansion. The proposed enhancements to the scheme, including a wider range of minor breaches able to be dealt with and the introduction of a new senior discipline officer position, were supported by most submitters.
The Defence Force Welfare Association (DFWA) stated that the reforms would 'significantly improve the efficiency and effectiveness of the Discipline System within Units.' While Mr Spinks strongly commended the totality of the proposed changes.
Defence advised that replacing the lowest level subordinate summary authority with a senior discipline officer with 'broadly the same punishment authority as the subordinate summary authority with an increased rank range up to Captain (Army equivalents)' would provide:
The ability to deal with a broader range of minor breaches of discipline as disciplinary infringements…[reducing] the stress on Australian Defence Force members who admit the breach of discipline as they will not be subjected to a formal summary hearing and will have their matter finalised within two to three days.
The IGADF advised that:
My office conducts military justice performance audits of Australian Defence Force units and we regularly hear from personnel that they trust the existing Discipline Infringement Scheme. I anticipate the revised Scheme will receive similar endorsement by those who are directly affected by it. The proposed reform will result in a system that is easier to understand and use, leading to confidence in dealing with and responding to discipline issues.
Raising concerns about potential misuse of the disciplinary infringement scheme, GAP Veteran and Legal Services urged the Committee to ensure adequate safeguards will be in place under the reforms proposed in the bill.
Defence noted the retention of current safeguards within the discipline infringement scheme, including the requirement that the infringed member make a positive election to be dealt with under the scheme, and that such an election is an admission to committing the disciplinary breach. The additional safeguards in the bill include:
the requirement for any reasonable excuse to be considered before issuing a disciplinary infringement notice;
the ability of a discipline officer/senior discipline officer to dismiss an infringement if the officer considers the infringed member has a reasonable excuse for committing the infringement;
the requirements for a discipline officer to inquire if the infringed member has a reasonable excuse for committing the breach of discipline; and
the requirement for a commanding officer to review punishments imposed by a senior discipline officer.
Other submitters also commented on the retention of current safeguards as well as the added protections under the enhanced scheme. The IGADF commented that:
Currently, the most common lapses of behaviour are beyond a Discipline Officer’s jurisdiction and can only be dealt with by a Subordinate Summary Authority, or higher. The proposed changes will permit such common lapses to be dealt with by Discipline Officers under the Infringement Scheme unless the alleged wrongdoer elects otherwise. This should enhance timeliness without compromising overall fairness. Indeed, in one important area, the checks and balances in the Defence Force Discipline Act will be enhanced. An additional safeguard will require commanding officers to review Senior Discipline Officer proceedings. This should ensure consistency and fairness of discipline outcomes.
The ADA advised that:
Aspects of the DFDA that introduced court-like proceedings down to the lowest level of hearings have been simplified progressively since 1985, particularly from 1995, with no loss to the rights of those charged or the balances of fair play and justice concerned. The tweaking of the disciplinary infringement scheme proposed in Schedule 1 of the Bill is part of that process.
Mr Spinks noted that there was a:
…strong emphasis on not only ensuring that existing safeguards are retained, but also that they are significantly reinforced. This approach is at the heart of delivering a military discipline system that I know our soldiers will view as fair, trusted and one that they believe in.
The DFWA concurred, advising that 'the protections included in the bill sufficiently and appropriately protect the rights and welfare of Defence Members'.
The Centre for Military and Security Law, ANU College of Law, described the safeguards in the bill as 'appropriate', noting that under the scheme 'a person who wishes to contest the conduct that has been alleged can do so, using the summary tribunal system or the superior tribunal system...'
Disciplinary infringements records
GAP Veteran and Legal Services raised concerns about the bill's removal of the existing requirement for infringement records to be destroyed after 12 months; and the proposed new section 9JB which provides for the Chief of the Defence Force, by legislative instrument, to make rules in relation to record keeping of infringement records.
In relation to new section 9JB, the bill's Statement of Compatibility with Human Rights advised:
The Defence Force as a national institution is accountable and transparent, while reflecting contemporary community standards and attitudes. This includes the requirement for the Defence Force to maintain appropriate records relating to the service history and management of its personnel. Consistent with these principles, the retention of discipline officer records was a recommendation of the Review of the summary discipline system (2017).
The existing requirement in section 169H of the Act that relevant discipline officer infringement records be destroyed at the expiration of 12 months does not meet the needs of the Defence Force, nor community expectations, and is to be repealed by this Bill. Instead, this Bill makes provision for the retention, use and management of discipline officer infringement records to be governed by a legislative instrument that may be issued by the Chief of the Defence Force.
The retention of infringement records will promote transparency of the disciplinary process and additionally enable command to assess the appropriateness, and use of the infringement scheme.
The Chief of the Defence Force legislative instrument that allows for the use, dissemination, storage and protection of personal information of discipline infringement records, will have regard to the necessity, reasonableness and proportionality of those measures and the implementation of appropriate safeguards to ensure the instrument constitute[s] a permissible limitation on the right to privacy. An instrument that may be made by the Chief of the Defence Force will specify: how the personal information of a defence member is collected and stored; the persons to whom it can be disclosed; and the conditions that need to be satisfied before any disclosure occurs, in a way that reflects the sensitive nature of the information.
The Bill provides that the Chief of the Defence Force may, by legislative instrument, make rules for, or in relation to the keeping of disciplinary infringement records and the retention, use or destruction of disciplinary records (currently DFDA s.169H requires the destruction of disciplinary infringement records after 12 months). The legislative instrument as proposed in the Bill would be a disallowable instrument presented for Parliamentary scrutiny and accompanied by an Explanatory Memorandum registered on the Federal Register of Legislative Instruments.
Submitters also broadly supported the proposed changes under Schedule 2 to remove the subordinate summary authority level (which would effectively be replaced by the senior discipline officer as noted above); and to re-align the structure of the summary discipline authorities. Defence described the amendments in the bill as instituting:
…a more logical structure and progression between the new two tiered disciplinary infringement scheme and the summary authority service tribunals, based on the seriousness of the disciplinary breach, available punishments, and rank of individual.
Mr Spinks commented that the restructure of summary authorities under the bill delivers a military discipline system that is 'fair in terms of the rank of the accused member, the seriousness of the breach of military discipline, the level of punishment that may be imposed and the seniority of the summary authority'.
The CMSL described the removal of the subordinate summary authority as proposed in the bill as a 'logical consequence of the introduction of the senior discipline officer...and part of the DFDA's evolution to ensure it remains fit for purpose in the modern ADF'. The other changes in Schedule 2 were considered 'necessary and logical changes.'
The DFWA noted that:
Under the existing scheme, the Subordinate Summary Authority is procedurally cumbersome, often with significant delays between the offence and dealing [with it], and imposes a significant burden on a unit.
The ADA advised that the removal of the subordinate summary authorities 'makes sense', but suggested that:
It may need review down the track to check that the advantages have outweighed the disadvantages. Whatever the faults of such hearings, they do enjoy considerable confidence among junior and non-commissioned ranks. Particularly as an effective aid to individual maturation, and team-building, in circumstances where often young personnel live, work and socialise together much more than in other Australian workforces.
New service offences
Submitters generally welcomed the inclusion of the new service offences under Schedule 3 of the bill. However, some concerns were raised about some aspects of these amendments and these are discussed further below.
The CMSL described the proposed new services offences as 'welcome changes to the DFDA', advising that they:
…represent further necessary reform to the military discipline system brought about by a combination of changes in behaviour by ADF members, technological advancements and experience arising out of trying to prosecute some recent offending.
…Each of these proposed amendments seeks to deal with aspects of behaviour that have occurred in the ADF reasonably regularly, and for which successful action under the DFDA has not always been achieved. Their inclusion as specific offences under the DFDA should help to enforce and maintain service discipline by making the consequences of such behaviour more readily able to be prosecuted, while adequate safeguards for a person suspected of committing one of these offences are also maintained.
In regard to the new service offences, Mr Spinks advised:
I strongly support the emphasis that these have on the values and professional standards expected of our Defence Force members by the Australian people. I would commend, in particular, the new cyber-bullying offence.
The ADA advised the Committee that the new service offences 'reflect wider change in Australian society and are fully supported.'
Failure to perform duty or carry out an activity and failure to notify a change in circumstances concerning the receipt of a benefit or allowance
The CMSL commented on the application of strict liability as part of these new offences, noting that this was not unusual and that approximately 25 offences under the DFDA already included strictly liability in one of more elements of those offences, and that '[n]o inherent unfairness to an accused person arises simply because of the inclusion of strict liability in these offences.'
In regard to proposed section 56A dealing with the failure to notify a change in circumstances, GAP Veteran and Legal Services advised that this new offence:
…appears, on its face, to rectify a difficulty in securing convictions in what is a prevalent area of offending in Defence.
…proposed section 56A strikes a fair and equitable balance between the need to suppress a prevalent and costly offence and the proof requirements established by attachment of a strict liability standard to the failure component of the offence. The intent of the amendments proposed in section 56A are, in our submission, satisfied.
However, GAP Veteran and Legal Services raised whether applying a strict liability standard to a significant element of the new offence of failure to perform duty proposed in new subsection 35A(1) was appropriate given the 'magnitude' of this offence which carries a maximum penalty of dismissal from the ADF.
Defence noted the application of strict liability to elements of these new offences, along with a number of existing offences under the DFDA, was 'offset by the availability of a defence of reasonable excuse.'
As noted in Chapter 1, the bill introduces a new service offence for cyber-bullying under proposed new sections 48A and 48B. While submitters generally supported the need for a service offence to deal with cyber-bullying, some submitters raised concerns with certain aspects of the proposed amendments in the bill.
Broad nature of offence/connection to discipline
The Judge Advocate General (JAG), Rear Admiral JT Rush RFD QC RAN, noted and endorsed a 'note of caution' made by his predecessor, Rear Admiral His Honour Justice MJ Slattery, AM RAN, in his 2020 Annual Report, in relation to proposed section 48A. Rear Admiral Slattery advised in the annual report that the closest provision to this offence in Commonwealth legislation appears to be section 474.17 of the Criminal Code Act 1995 (Criminal Code) which 'provides a more demanding test for criminal liability than the proposed s. 48A and consequently carries a higher penalty.'
Rear Admiral Slattery noted as 'exceptional' that the offence under proposed section 48A 'requires no connection to the discipline of the Defence Force beyond the accused being a member of the Defence Force'. Further explaining that:
Other offences in the DFDA generally have either explicit connection to service in the Defence Force or have either a close civilian criminal law counterpart with equivalent penalties. But this proposed provision is not overtly connected to the performance of service in the Defence Force or to Defence property and it would more readily impose criminal liability on a Defence member for conduct in the general community than applies to other members of the general community.
Rear Admiral Slattery observed that most of the DFDA provisions which impose criminal liability on a Defence member include a connection to 'the performance of Defence duties or in relation to Defence property, or in order to not prejudice service discipline.' He noted that section 33A of the DFDA, which creates an offence of assault occasioning actual bodily harm by defence members in a 'public place', was an exception where the Act does impose on criminal obligations on Defence members 'without overt connection to Defence property, duties or discipline'. However, he noted that:
…s. 33A has an exact counterpart (and with equivalent penalties) in the civilian law of the Commonwealth and of all States and Territories. DFDA s. 33A's congruence with its civilian legislative equivalents means that Defence members charged under that section are not being treated more harshly than other members of the community.
In regard to the broad nature of the provisions under proposed section 48A, Rear Admiral Slattery concluded that:
There may be good reason for drafting a broad cyber-bullying offence applicable to Defence members, either in their cyber communications between one another, or in a manner likely to undermine service discipline. But care should be taken before legislatively intruding into the otherwise private lives of Defence members by imposing obligations on their private behaviour stricter than those required of other Australian citizens, and then giving summary discipline authorities the power to enforce those obligations. Alternatively, a provision equivalent to Criminal Code s. 474.17 could be included in the DFDA, but it would attract a more serious penalty and be even less suitable for trial by a summary discipline authority.
The Department of Defence submitted that cyber-bullying by Defence members 'is corrosive to discipline':
The new cyber-bullying service offence will send a very strong message to Defence members that the use of social media to cyber-bully another person is unacceptable in a disciplined force. It is unlikely that the Australian Defence Force or broader Australian community would expect otherwise as any such behaviour is inconsistent with good order and discipline and appropriate that it be dealt with under the DFDA.
The scope of the cyber-bullying service offence by a defence member extends to another person, meaning that the victim of the proposed offence could be any person, including a victim who is not a member of the Defence Force. The offence does not require that the conduct occur on service land, or that a defence member is on duty at the time of offending. It is sufficient that the accused is a Defence member (as defined under the DFDA) for the good order and discipline of the Australian Defence Force to be impacted. The discipline and good order of the Australian Defence Force can be impacted by such conduct, regardless of the identity of the victim.
The CMSL strongly supported the position set out in the EM that cyber-bullying is incompatible with service in the ADF and that cyber-bullying by its very nature is 'likely to affect service morale and discipline.' The CMSL contended that:
…there is a valid reason for considering that any member of the ADF who engages in cyberbullying of any type poses a threat to the good order and discipline of the ADF just by that fact alone. A closer connection to the Defence Force would not be needed to adversely impact service discipline; it would be enough that the perpetrator is a Defence member (as defined under the DFDA) for the risk to manifest. Further, it is difficult to comprehend any level of tolerance on the part of the Parliament or Australian society for the notion that it would be permissible for a member of the ADF to engage in cyberbullying and yet that activity would be beyond the scope of the ADF to address as a matter of service discipline.
The Department of Defence discussed why section 474.17 of the Criminal Code was not suitable in the Defence context:
This offence carries a maximum punishment of three years imprisonment and can be charged under the DFDA as a Territory Offence (s.61). However, as a prescribed offence it cannot be heard and determined before a summary authority, with the consequence that the charge can only be determined before a superior tribunal.
The s.474.17 misuse of a carriage service offence is not tailored to support the Australian Defence Force to maintain good order and discipline by taking swift action in respect of cyber-bullying. A tailored offence, able to be dealt with by summary discipline authorities within weeks of the alleged offending, is necessary to meet the disciplinary needs of the Australian Defence Force, particularly in deployed environments.
The proposed s.48A has broader application than the s.474.17 offence, as it deals with cyber-bullying that would be regarded as threatening, intimidating or humiliating another person. It is appropriate that this higher threshold for behaviour be applied to a disciplined force, where it is not applied to civilians. As individuals authorised and trained to apply lethal force in service of their nation, members of the Australian Defence Force must be trusted to apply violence only in a disciplined and lawful way. Cyber-bullying behaviour evinces a willingness to de-humanise and de-value another person, a clear risk factor for a deviation from norms in the controlled application of violence.
Capability of a summary authority dealing with this offence
The current JAG, Rear Admiral Rush, commented on the appropriateness of a summary authority, administered by military officers who are not legally qualified, to hear a charge of the nature of that proposed under section 48A, noting the potential complexity of cyber offences 'in terms of the continuing nature of the offence and duplicity in charging':
The disposal of such cases, even on a plea of guilty, involves difficult legal considerations beyond the reasonable competence of lay summary authorities. These difficulties will be likely compounded as the drafting of the charges is invariably undertaken by non-lawyers in the summary discipline system.
Rear Admiral Rush also commented on the bill's intention to include the new offence under proposed section 48A on the Schedule 1A list of the DFDA as exacerbating the potential for unfairness to members as there would not be the right of an up-front election for hearing by a Defence Force Magistrate. The JAG noted that:
The reason for the existence of a List of Schedule 1A offences is to enable a summary authority to efficiently deal with charges concerning minor infractions of disciplines. Section 48A is not such an offence.
The DFWA also raised concerns about the capability of a commanding officer or senior summary authority to deal with cyber-bullying offences, noting in particular that the technical nature of the evidence in such cases may potentially impact on the evidentiary and investigatory requirements, which may in turn render them 'beyond the scope of unit investigation.' Given these concerns, the DFWA also questioned:
whether investigating and dealing with possible offences under this section, including removal orders, can occur in a sufficiently timely manner that balances unit discipline, fairness, and the welfare of the victim and alleged offender.
However, the DFWA concluded that these concerns:
…can be managed effectively through command guidance and controls; however, the effect of these new offences should be monitored to ensure that any unintended consequences that arise can be identified and addressed promptly.
The CMSL also commented on the appropriateness of a summary authority to deal with a cyber-bullying offence, advising that:
…for reasonably straightforward matters, there is no reason why a summary authority should not be able to exercise jurisdiction over a cyberbullying offence; this already occurs at summary level for most DFDA offences. If there are complicating factors, then the current practice of obtaining legal advice and/or referring the matter to the Director of Military Prosecutions remains available. In some circumstances, the use of a charge under DFDA s 61(3) and the relevant criminal code would also be appropriate for a cyberbullying offence. All of these options remain available with the propose amendment.
The IGADF noted the concerns raised by the JAG's 2020 Annual Report and parliamentary committees on the proposed cyber-bullying offence where it had been the subject of 'cautious comment' and responded:
Given the Australian Defence Force’s predominantly digitally-literate, young adult demography, mechanisms to allow lower level cyber bullying offending to be tried summarily are desirable. Should the proposed offence be made law, it will be administered in a system that has protections for members charged with an offence, including automatic review and appeal mechanisms, and oversight not only by the Judge Advocate General but also by my Office.
Defence advised that cyber-bullying was not considered to be a minor breach of discipline and therefore is not suitable for the disciplinary infringement regime; and is appropriate to be dealt with by a summary authority:
As with all offences, matters will vary in the seriousness of the conduct, and the level of complexity. Conduct at the lower end of the scale, where there is limited legal complexity, is appropriate to be dealt with by a summary authority service tribunal. More serious conduct, or where there were legal complexities, would be tried before a superior service tribunal or referred to the civil police.
The EM notes that this offence 'will enable less serious disciplinary breaches of cyber-bullying to be dealt with expeditiously by a summary authority,' while more serious breaches can still be dealt with by court martial or Defence Force magistrate. It was further noted that '[r]eferral to civilian authorities will remain an option for matters that may constitute a criminal offence'.
The Committee acknowledges the importance of a military discipline system that is trusted by those who serve in the Defence Force, and by the Australian community more broadly, to deal with breaches of discipline quickly, effectively and fairly. The enforcement and maintenance of discipline through the DFDA is essential to the safety, morale, health and wellbeing, unit cohesion, and ultimately the capability of the Australian Defence Force.
The measures contained in the bill address issues which have been identified in reviews of the DFDA over a number of years, most notably the 2017 Review of the Summary Discipline System, where aspects of the summary discipline system were found to be overly complex, difficult to use and characterised by delays, potentially eroding morale and impacting safety. The Committee notes that there was a general consensus among submitters on the need to address these concerns in order to modernise and simplify the summary discipline system administered under the DFDA.
The Committee supports the measures contained in the bill to address issues which had been identified in reviews on the operation of the DFDA. The Committee was pleased to note the overall support from submitters for the removal of the subordinate summary authority and expansion of the disciplinary infringement scheme to enhance its effectiveness to deal with minor breaches of discipline. The retention of current safeguards and added protections contained in the bill will deliver a discipline system that is fair and one that will continue to be trusted by Defence members.
Submitters also broadly endorsed the proposed restructure of summary authorities to re-align jurisdiction of discipline officers and summary authorities and between summary authorities, in terms of the type of breach, rank of individual and available punishments.
The introduction of new service offences were also generally supported and seen as necessary to better manage breaches of discipline in a modern ADF. Concerns were raised about some aspects of the new offences, most notably the new cyber-bullying offence. However the Committee notes the explanations provided on why the proposed offence is necessary, as well as protections available for members dealt with under this offence.
The Committee recommends that the bill be passed.
Senator the Hon Eric Abetz