Chapter 6 - The Defence Force disciplinary act
Call for a review of the Defence Force Disciplinary Act
6.1
The Report of an Audit of the Australian Defence Force Investigative
Capability found the Defence Force Disciplinary Act (DFDA) had 'simply had
its day'. It described the document as 'outdated and anachronistic' and
suggested that it 'does not match modern disciplinary, legal and policing
requirements'.[1]
The audit noted that the DFDA had not undergone a fundamental review for over a
quarter of a century.
6.2
The call for a review, however, is not new. The audit finding that the
DFDA needs to be updated is consistent with those of previous reports dating
back to the 1989 Report of the Defence Force Discipline Legislation Board
Review. It was concerned about bringing the DFDA in line with comparable and
more modern legislation in relation to 'the need to extend the proscription of
evolving classes of illicit drugs which are now widely available and used in
society and from which the ADF is unlikely to be immune'.[2]
6.3
The 2001 Report of an Inquiry into Military Justice in the Australian
Defence Force (the Burchett Report) also noted the need to update the DFDA.
It recommended, inter alia, that consideration be given to reviewing the
nature of the punishments that may be imposed under the DFDA in the light of
contemporary standards.[3]
6.4
The references committee's 2005 report on Australia's military justice
system was particularly concerned about the grey areas that had developed
between the disciplinary and administration systems. It concluded that:
...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.[4]
6.5
In light of the findings of previous reports and evidence presented to it,
the references committee recommended that:
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.[5]
6.6
The committee further notes the findings of the Inspector General ADF
based on the Defence Attitude Survey 2005 supplement. Survey responses showed
that:
- 61% agreed, 20% disagreed and 19% were uncertain about whether
the DFDA is an effective and efficient tool for the maintenance of discipline; and
- 25% agreed; 28% disagreed and 47% were uncertain about whether
the act is not easy to understand.
6.7
The surveys also indicated that 76% agreed, 12% disagreed and 12% were
uncertain that minor breaches of discipline would be better dealt with by
counselling and warning rather than charging under the DFDA.[6]
6.8
In its response to the recommendation of the audit of the ADF's
investigatory capability to review the DFDA, Defence stated that it would amend
a number of offences as part of the Defence Legislation Amendment Bill 2007 and
continue a more detailed review.
Committee view
6.9
The committee supports the call for a comprehensive review of the DFDA. It
notes Defence's response and its intention to 'continue a more detailed review'.
The committee would hope that the intention is for an independent, thorough and
complete review of the DFDA and not ad hoc changes to it. The committee
suggests further that the independent review be made public.
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