Chapter 13 - Disciplinary and adverse administrative action
The disciplinary and administrative components of the military justice
system
13.1
Adverse administrative action can follow from a DFDA
matter, a civilian criminal charge or an administrative inquiry. It is intended
as a management tool to correct or deal with unacceptable or unprofessional
behaviour. It may take the form of a warning, a formal censure, reduction in
rank, removal from posting or appointment, disallowance of pay and other
financial entitlements or even termination of enlistment or appointment.
13.2
The ADF makes a clear distinction between action taken
for breaches of the disciplinary system and those of the administrative system.[857] In the military justice system,
disciplinary offences are specified in the DFDA and cover a range of activities
or offences. There are, however, many contraventions of rules and regulations
that are not punishable under the DFDA but are nonetheless subject to formal
censure and punishment under administrative procedures. Defence Manual ADFP
06.1.3 notes that:
Adverse administrative action is usually initiated and/or
imposed when the conduct or performance of a member is below the standard
expected of a particular member and is not in the interests of the ADF. It is
official action that reflects formal disapproval on a temporary or permanent
basis.
13.3
Although the advice is clear in directing that offences
under the DFDA are to be dealt with under the disciplinary system, there
appears to be scope in determining whether disciplinary or administrative
action will be taken. One witness told the committee that 'they flip-flop
between administration and discipline'.[858]
Deciding on disciplinary or administrative action
13.4
Generally, the decision to impose adverse
administrative action is discretionary. In exercising this discretion, a
decision-maker must comply with the requirements of administrative law. The
Manual advises that:
In determining what, if any, adverse administrative action
should be taken, the merits, circumstances and the sufficiency of evidence in
each case must be reviewed. A decision whether or not to impose adverse
administrative action depends on the seriousness of each case and the interests
of the ADF.[859]
13.5
Elaborating on this point, Lieutenant
General Leahy told the committee that the
commanding officer is required to make the judgement based on offences in the
DFDA as to whether administrative or disciplinary action is appropriate.[860] He used the following example:
...when a soldier has not done something or has done something
overtly that he should not have done—he has contravened standing orders or he
has carried out actions that he should not have done—it goes through an
administrative process. Normally—and it is hard to say, locked tight, that this
is what happens each time—there would be an investigation of some type and the
investigating officer would determine that an individual has done something
wrong or that an individual has not done something that he should have. What is
open to us then is that we can take either disciplinary action or
administrative action.[861]
13.6
The Manual provides some guidance on the matters that
should be taken into account when considering adverse administrative action. It
explains that 'adverse administrative action can be taken instead of, or in
addition to, disciplinary proceedings under the DFDA or civilian court
proceedings.[862] It concludes:
In determining what, if any, adverse administrative action
should be taken, the merits, circumstances and the sufficiency of evidence in
each case must be reviewed. A decision whether or not to impose adverse
administrative action depends on the seriousness of each case and the interests
of the ADF. Guidance on what conduct or performance warrants initiation of
adverse administrative action is contained in Defence Instructions and
policies, such as those dealing with theft, the use of drugs, censures, and
warnings.[863]
13.7
This authority to choose between the alternative
courses provides the commander or other decision-maker with flexibility and
allows account to be taken of the particular circumstances surrounding the
breach. However, it may also produce uncertainty and a lack of consistency in
the general operation of both systems. Some may see too much scope for
subjectivity or arbitrariness in exercising this discretion to pursue one
course of action over another. Colonel Hevey
gave an example of where an officer is likely to recommend administrative
procedures:
...that a first-year soldier might inadvertently put in a
wrong claim. That would not go to a Defence Force magistrate’s hearing; that
would normally be counselling, unless there was some criminal intent. Those are
normally the sorts of matters that go to the Defence Force magistrate.[864]
13.8
The distinction seems to relate to the gravity of the
wrongdoing and its potential to cause harm. In other words, a contravention
deemed to be an administrative offence would fall short of a criminal offence.
Consequently, the severity of a punishment assigned to an administrative
contravention should not be oppressive or carry with it the stigma attached to
a criminal conviction. Colonel Harvey
reminded the committee that, while not a punishment under the DFDA, adverse
administrative action is widely regarded by ADF members as a form of
'punishment'.[865]
Views on the current relationship between the disciplinary and
administrative components of the military justice system
13.9
Some witnesses expressed dissatisfaction with the way
in which the disciplinary and administrative systems intersect. The Australian
Defence Association thought there was a serious problem with the incorrect use
of the administrative law processes and with what it perceived as 'a growing
reluctance to use the disciplinary code in certain circumstances'. It
submitted:
There is an unfortunate and strengthening tendency instead
to wrongly use administrative processes to investigate and/or punish alleged
criminal acts or disciplinary transgressions by Service personnel.[866]
13.10
In looking at both the disciplinary and administrative
components of the military justice system, the report has shown that they are
indeed two separate systems with their own distinct procedures, offences and
penalties. The committee would be concerned if administrative action were used
solely because of a perceived difficulty in successfully prosecuting a
particular breach or offence.
13.11
Mr David
Richards, a barrister and solicitor
responsible for the management and conduct of the national military practice in
a large private law firm, argued that 'a line needs to be drawn between
administrative discipline and criminal discipline'. He supported the proposal:
...that the CDF should have absolute control over the
administrative system, which would include insubordination offences. The
insubordination offences and the control type offences may very well have
criminal imprisonment or fines of that nature; I do not have an issue with
that. What I do have an issue with is this: if somebody leaves the Defence
Force with a criminal conviction, whether they are asked to leave or otherwise,
to the outside world that person has a criminal conviction. If they leave the
Defence Force with an administrative conviction for discipline, notwithstanding
what the penalty might be, that is a completely different issue. If the
military wishes to provide serious sanctions to maintain their discipline
within the military, that is fine; I do not have an issue with that at all.[867]
13.12
The Burchett Report referred to minor infringements
under the DFDA such as speeding on base. It noted the findings in the 1988
Report of the Judge Advocate General which stated:
I consider that there is a need for a system of minor
non-judicial punishments such as extra duties for minor singularly disciplinary
offences rather than having to comply with all the panoply of a trial under the
adversary system ... [868]
13.13
It also cited the 1989 Report of the Defence Force
Discipline Legislation Board Review which stated:
The Board is firmly of the view that in the case of
infringements which are purely disciplinary and which are neither serious nor
of a criminal nature it is essential that a system be established which will
enable such infringements to be dealt with speedily and without formality but
which, at the same time, will adequately protect defence members from unfair
treatment.[869]
13.14
To deal with misdemeanours such as minor traffic
offences, the Burchett Report suggested the introduction of legislation
enabling a ticket, like that used by the police in various civil jurisdictions,
to be issued. It would seem to the committee that, in cases where a breach of
the law or rules is of a minor nature and where little discretion is required
in determining the guilt of an alleged offender, a quick and straightforward
administrative device to deal with the transgression would be fairer and more
cost effective.[870]
13.15
The Burchett Report also referred to 'extras' and
suggested that 'guidelines should make it clear that, as a matter of policy,
extras are to be regarded as an administrative response that may be appropriate
in some cases, falling outside the disciplinary measures established by the
Defence Force Discipline Act'.[871]
13.16
The Burchett Report recommended, inter alia, that consideration be given to reviewing the nature of
the punishments that may be imposed under the AFDA in the light of contemporary
standards.[872] The United Kingdom
Government is currently reviewing its Service offences. It recognises the
importance of keeping in step with changes in the civilian criminal justice
system and of benefiting from recent judicial interpretation.[873] The Australian military justice
system appears due for a similar review.
Committee
view
13.17
Clearly, a number of witnesses were concerned about the
grey areas that have developed between the disciplinary and administrative
systems. In light of these concerns and the recommendation by the Burchett Report,
it appears that a review of the penalties imposed under the military justice
system is long overdue. The time for review is also fortuitous in that a
significant body of work has recently been done by the Australian Law Reform
Commission on criminal, civil and administrative procedures and penalties.
13.18
In March 2003, following a period of public debate, the
Australian Law Reform Commission produced a report, Principled Regulation: Federal Civil and Administrative Penalties in
Federal Jurisdiction. This comprehensive report identified clear principles
intended to ensure that there is a fair, effective and workable system of
decision making and enforcement. It provides an extensive discussion on matters
such as the distinctions between criminal and administrative procedures and
would serve as a useful starting point and guide for the review.
Recommendation 35
13.19 Building on the report by the Australian Law Reform
Commission, Principled Regulation:
Federal Civil and Administrative Penalties in Federal Jurisdiction, the committee
recommends that the ADF commission a similar review of its disciplinary and
administrative systems.
13.20
The intention is to help the ADF better delineate
between the two systems, improve its administrative procedures and review and
change where appropriate the penalties for administrative contraventions.
13.21
The Minister for Defence may wish to seek the
assistance of the Attorney-General in having the matter of the disciplinary and
administrative military justice systems referred to the Australian Law Reform
Commission to conduct the suggested inquiry. The Australian Law Reform
Commission could draw on the expertise and experience it gained while inquiring
into Federal civil and administrative penalties.
Double jeopardy
13.22
Where an overlap occurs between the disciplinary and
administrative system, the question also arises about the potential use of
evidence gathered for one proceeding to be used in the other and about the
protection against double jeopardy. The principle behind double jeopardy is
that a person should not be punished twice for what is substantially the same
act and should not be unfairly subject to the two procedures because of
vexatious motives.
13.23
The danger with double jeopardy in the ADF is that the
relevant Defence Service may make repeated attempts to punish an individual for
substantially the same offence putting the accused through unnecessary ordeal
and delaying the process.
13.24
Two cases in particular raised concerns. In each case
disciplinary action had been taken unsuccessfully against a member but was
followed almost immediately by administrative action for what appeared to be
substantially the same alleged action. One witness gave the example of a staff
cadet who was charged, tried and punished over an incident. Two month's later,
on legal advice, the charge was quashed and expunged from the Cadet's personal
record. An apology was offered and the Cadet told that no further disciplinary
action would be taken. According to the witness, 'without pause, the Cadet was
then told that, notwithstanding the quashing and expunging of the charge',
administrative action would be pursued.[874]
13.25
Mr Neil
James, Australia Defence Association, was
concerned about cases where, in his view, the double jeopardy principle has
been undermined. He told the committee:
They are saying that proceeding against people
administratively means they are not actually on trial, so therefore it is not
double jeopardy. The position of the Australia Defence Association is that,
yes, in black letter law that is correct. However, we think that in too many
cases it is quite specious because it does not look at the effect of what
happens. The effect of what happened to the SAS soldier in question was quite
simply that he was charged under the Defence Force Discipline Act and
acquitted. Because the ADF felt that there were some aspects of the case that
required further investigation, they proceeded against the individual
administratively to show notice to show cause through the normal procedure. Our
argument is that that was probably wrong morally. He had actually been
acquitted and that should have been the end of it. I think the real problem
here is that the effect is double jeopardy. In this case they proceeded against
the SAS member because there appeared to the lawyers to be no other way they
could air the evidence. If they had adjusted some of their inquiry procedures,
there may have been a better way of airing some of that evidence than
proceeding against the individual, who was put through a very harrowing
experience, we believe, unnecessarily. Quite frankly, it was probably an abuse
of his human rights in the long run.[875]
He asserted that people are 'either guilty of a disciplinary
offence or they are not'.[876]
Committee
view
13.26
The committee has recommended that the ADF commission a
review of its disciplinary and administrative system. Given that concerns have
been expressed about double jeopardy, the committee believes that these
concerns could be considered by the proposed review.
Recommendation 36
13.27 The committee recommends that the committee's proposal
for a review of the offences and penalties under the Australian military
justice system also include in that review the matter of double jeopardy.
13.28
In addition to addressing and rectifying the piece-meal
approach to reform of the military justice system, the committee believes that
close, careful and regular monitoring is required to ensure that those steps
taken by the ADF to improve the military justice system are having the desired
results. As a result, the committee has resolved to take an active parliamentary
role in examining the effectiveness and fairness of the military justice system
on an ongoing basis. To assist the committee in this task, the committee has suggested
that the ADF submit an annual report to the Parliament on its military justice
system.
Recommendation 37
13.29 The committee recommends that the ADF submit an annual
report to the Parliament outlining (but not limited to):
(a)
The
implementation and effectiveness of reforms to the military justice system, either in light of the
recommendations of this report or via other initiatives.
(b)
The workload
and effectiveness of various bodies within the military justice system, such as
but not limited to;
- Director
of Military Prosecutions
- Inspector
General of the ADF
- The
Service Military Police Branches
- RMJ/CJA
- Head of
Trial Counsel
- Head of
ADR.
Part IV
Other important matters that relate to the military justice system
The report has clearly identified problems in Australia's
military justice system.
The final Part of the report deals with matters that did not
fit neatly within with scope of the examination of the military justice system.
Although they deal with a specific aspect of the ADF, they are nevertheless connected
closely with the system:
- the inquiry into the suspension of Cadet
Sergeant Eleanore Tibble—in particular, the lack of action taken where sexual impropriety
may have been at issue, and the particular procedural fairness issues that
relate to the rights of children; and
- mental health issues and the military justice
system.
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