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Chapter 2 - Provisions of the Bill
Introduction
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:
- approve or not approve certain more severe punishments or orders.
In the case where the reviewing authority does not approve a punishment or
order, it must quash the punishment or revoke the order and impose a lesser
punishment or order;
- refer the matter back to the summary authority for the purpose of
it reopening the matter and correcting the punishment or order that was imposed
incorrectly (the summary authority will only be able to impose a lesser punishment
or order than that originally awarded).[10]
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:
- enabling service tribunals to deal with offences in respect of
certain amounts of a more contemporary range of illegal drugs under section 59;
- amending section 60 to include that a member is guilty of an
offence if he or she ‘omits’ to perform an act (in addition to ‘acting’);
- making the offences of ‘unauthorised discharge of a weapon’ and
‘negligent discharge of a weapon’ (sections 36A and section 36B) alternative
offences;
- allowing the suspension in whole or part of a greater range of
punishments under the DFDA;
- removing all references in the DFDA to section 40B – ‘negligent
conduct in driving’ (as this provision was repealed in 2004);
- ensuring that Defence Force Discipline (Consequences of
Punishment) Rules apply to punishments imposed by discipline officers, so that
in the interests of consistency and fairness the same consequences can be made
to apply to all DFDA punishments whether they are imposed by the AMC, a summary
authority or a discipline officer;
- providing that the status of a summary conviction is expressed to
be for service purposes only; and
- allowing the AMC to order that the punishment of dismissal is
effective on a day no later than 30 days after it has been imposed (rather than
immediately as is currently the case).[11]
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:
- The jurisdiction of superior summary authorities will be expanded
to include ranks up to Rear Admiral in the Navy, Major-General in the Army and
Air Vice Marshal in the Air Force.
- Currently, only ranks up to Lieutenant Commander, Major and
Squadron Leader may be tried at a summary trial.
-
A summary authority is to be
automatically disqualified from trying offences where it has been
involved in the investigation of the service offence, the issuing of a warrant,
or preferring the charge. This will reinforce current practice and remove
doubt about such decisions.
-
The change will also help in reducing any perceptions about the
possible bias of commanders, and promote further confidence in the impartiality
and fairness of summary proceedings.
- The Examining Officer scheme contained in section 130A of the
DFDA is to be removed.
- This change will remove an unnecessary and rarely used procedure
that provides for a third person to hear complex or lengthy evidence for a
commanding officer before proceeding with the summary trial.
- A new time limit of up to three months from the time the member
is charged to the date of trial by summary authority will be introduced. If
the trial does not commence in the time allowed then the summary authority must
refer the charge to the Director of Military Prosecutions (DMP). This will
improve the timeliness of summary proceedings.
-
The powers of the DMP in respect of a charge preferred by the DMP
to proceed directly to trial by the AMC are to be clarified.
- This amendment will clarify the DMP’s powers under section 87 and
make it clear that they have the full range of options that are required by the
position.
- A discipline officer will be required to provide a report to their
commanding officer so as to provide a safeguard through legislated oversight of
the discipline officer scheme.
- This will facilitate the maintenance of discipline and
transparency of the discipline officer scheme.
- A right to request no personal appearance, subject to approval,
is proposed for summary proceedings. The personal appearance of the accused
will remain the norm, noting that the consequence of a summary proceeding may
be a conviction for a service offence.
- This new provision will allow the expeditious completion of proceedings
where there may be a necessity for the accused to remain deployed on operations.
The timeliness of summary proceedings will be improved whilst also maintaining
operational effectiveness.
- A provision is proposed to reflect the creation of the new
Provost Marshal Australian Defence Force (PMADF). The PMADF was appointed on 14 May 2006 to head the newly established ADF Investigative Service (ADFIS). Among other
things, the PMADF (and ADFIS) is to investigate or refer all complex service
offences for investigation within Defence and to ‘work closely with the
Director of Military Prosecutions...to achieve oversight of ADF criminal investigations’.[12]
- Rights and duties of legal officers, in particular the exercise
of their legal duties independently of command influence, will be further
strengthened in an amendment to the Defence Act 1903. The Government
agreed that the matter of their independence would be in part established
through amendment of the Defence Act 1903 and commitment to professional
ethical standards.
- The purpose of this new section is to ensure that ADF legal
officers are not subject to inappropriate command direction in the exercise of
their professional capacity as ADF legal officers.
- To give effect to a recommendation made by the October 2006 Senate
Standing Committee on Foreign Affairs, Defence and Trade report, it is intended
that the DMP be able to require that a trial of a class 3 offence is to be by a
Military Judge alone, accompanied by a reduction in the maximum available
punishment.
- This amendment reflects civilian criminal and overseas military
systems which enable a prosecutor to require that a charge be dealt with by a judge
alone for a range of more minor offences and will minimise the number of jury
trials.
- The DMP to be able to seek a determination from the Defence Force
Discipline Appeal Tribunal on a point of law that arose in an AMC trial, at the
conclusion of that trial.
- This will allow for precedents, so that the law will be applied
correctly in future cases.[13]
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