Bills Digest No.
33, 2021–22
PDF version [479KB]
Nicole Brangwin
Foreign Affairs, Defence and Security Section
David Markham
Law and Bills Digest Section
22
November 2021
Contents
Purpose of the Bill
Structure of
the Bill
Background
Committee
consideration
Statement of
Compatibility with Human Rights
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Key issues
and provisions
Other
provisions
Concluding
comments
Date introduced: 12
August 2021
House: House of
Representatives
Portfolio: Defence
Commencement: Sections
1–3 commence on Royal Assent.
Schedules 1 to 3 commence on the earlier of
Proclamation or 12 months from Royal Assent.
Schedule 4 will commence immediately after the
commencement of provisions in Schedules 1 to 3, or immediately after the
commencement of the Online
Safety Act 2021—whichever occurs later.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
November 2021.
Purpose of the Bill
The purpose of the Defence
Legislation Amendment (Discipline Reform) Bill 2021 (the Bill) is to amend
the Defence
Force Discipline Act 1982 (the DFDA) to improve and simplify the
operation of the military discipline system by:
- removing
the subordinate summary authority and restructuring the summary authorities to
simplify the process for dealing with minor disciplinary issues
- expanding
the disciplinary infringement scheme to deal more effectively with minor
breaches of discipline
- introducing
new service offences in relation to the failure to perform a duty or carry out
an activity, cyber-bullying and failure to notify change in circumstances
particularly with regard to receipt of benefits and allowances.
Structure of
the Bill
The Bill consists of four Schedules that amend the DFDA.
Schedule 1 amends the DFDA’s disciplinary
infringement scheme. Part 1 consists of the main amendments, Part 2
consequential amendments and Part 3 transitional amendments.
Schedule 2 Part 1 deals with summary authorities
under the DFDA by removing the subordinate summary authority. Part 2
amends related jurisdiction and punishments elements. Part 3 contains
transitional provisions.
Schedule 3 contains new service offence provisions
including offences related to cyber-bullying.
Schedule 4 includes contingent amendments related
to the passage of the Online Safety Act
2021.
Background
Australian Defence Force (ADF) members are subject to the DFDA
in addition to laws that apply to the Australian population. The DFDA is
specific to the military in maintaining discipline across the ADF.
The DFDA originated from the work of the 1973
Working Party into developing a Defence Force Disciplinary Code. The proposed
Code sought to unify the disciplinary systems of all three Services: Navy, Army
and Air Force. The most difficult challenge faced by the Working Party at that
time was streamlining the summary punishments as they varied greatly in each
Service. Consequently, significant concessions were made by each Service to
develop a uniform approach.[1]
Annexed to the final report of the 1973 Working Group was a proposed draft Bill
for government consideration.[2]
Almost a decade later in 1982 the Defence Force Discipline Act 1982 was passed
by the Parliament.[3]
Since that time the military justice system has been
subject to various reviews and undergone a number of changes.[4]
However, the most enduring issue identified by these reviews since the
introduction of the DFDA has been the complexity of the summary
disciplinary system (SDS).[5]
The most recent review was The Review of the Summary Discipline System 2017
(2017 SDS Review), which was instigated in November 2016 by the Chief of the
Defence Force and the Service Chiefs. The review aimed to address what had
become an ‘overly complex’ SDS that was ‘difficult to use, unresponsive to
command’ and ‘characterised by delay and costly to operate’.[6]
The 2017 SDS Review made 43 recommendations, of which the most substantive
align with the Bill.[7]
Committee
consideration
Senate Foreign Affairs, Defence and
Trade Legislation Committee
The Bill was referred to the Senate Foreign Affairs,
Defence and Trade Legislation Committee (FADT Committee) for inquiry and report
by 14 October 2021. The FADT Committee reported on 14 October 2021,
recommending the Bill be passed.[8]
Details of the inquiry are at the Inquiry webpage.
The FADT Committee received eight submissions that broadly
supported the Bill.[9]
The submission from GAP Veteran & Legal Services (GAP
Legal) raised concerns about some of the proposed provisions in the Bill, about
which the FADT Committee sought additional information from the Department of
Defence.[10]
Some of the concerns raised by GAP Legal and Defence’s responses are summarised
below:
- GAP
Legal raised concerns about the reliability of the Inspector-General of the ADF
(IGADF) as a safeguard for oversight of the military discipline system.[11]
Defence responded that
the IGADF is considered ‘a safeguard to address shortfalls in military justice
processes. This is consistent with the statutory role of the IGADF (see: Defence Act 1903
s 110B). An additional safeguard is the chain of command’. Defence assured
the Committee that regular and appropriate audits, surveys and focus groups are
conducted to assess the ‘fairness of the discipline system’. [12]
- GAP
Legal assessed that there are inadequate safeguards around the proposed
expansion of the disciplinary infringement scheme and as such there is the
potential for ‘abuse of the scheme’.[13]
Defence responded that it
was confident the necessary safeguards are provided in the Bill. Notably:
Additional safeguards (from the current discipline officer
scheme under Part IXA) for the operation of the expanded disciplinary
infringement scheme in the Bill include:
· The requirement for any reasonable excuse to be considered before
issuing a disciplinary infringement notice. The Infringement Notice will
require the Infringement Officer to specify if a reasonable excuse was offered
and the outcome of its consideration.
· 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.
· Punishments imposed by a Senior
Discipline Officer must be reviewed by a commanding officer. On review, a
commanding officer will have the power to confirm a punishment decision,
substitute a punishment decision with a reduced punishment, decide that no
punishment be imposed, or that the discipline infringement be dismissed and no
punishment imposed.
· A broader mandatory reporting
obligation for discipline officers to their commanding officer is included
within Part IA. This will ensure an increased command oversight function of the
disciplinary infringement scheme particularly concerning the use of the scheme,
types of infringements, suitability of punishment decisions, and the
performance of Infringement Officers, Discipline Officers and Senior Discipline
Officers. The enhanced commanding officer oversight function will result in
commanding officers having a greater role to play.
· S.9E(3) specifies additional
information to be included in a disciplinary infringement notice, in addition
to the Part IA detail.
· Where a member has been dealt with
under the infringement scheme in relation to the disciplinary infringement
(see: s.9C(2) and (3)), the member is not liable to be tried by a service
tribunal for an offence arising out of the infringement. This provision was not
included within Part IXA (current scheme), and has been revised and included
within Part IA.
· The Disciplinary Infringement Scheme
is independently overseen by the Inspector-General Australian Defence Force.[14]
- Proposed
section 35A, at item 1 of Schedule 3 to the Bill, creates a
new service offence of failure to perform duty or carry out activity, as
follows:
(1) A defence member
commits an offence if:
(a) the member’s
office or appointment, or the requirements of the Defence Force, require the
member to perform a duty or carry out an activity; and
(b) the member fails
to perform the duty or carry out the activity.
Strict liability applies to proposed
paragraph 35A(1)(b).[15]
This means that the prosecution is not required to prove a fault element in
relation to a failure by a member to perform a required duty or carry out a
required activity. Only proof of the physical element of the failure will be
required. The maximum punishment for the offence is dismissal from the Defence
Force.
GAP Legal raised concerns about
the application of strict liability to proposed paragraph 35A(1)(b).[16]
In GAP Legal’s assessment, the application of strict liability to an element of
this offence, particularly given the maximum penalty is dismissal from the ADF,
may not be ‘appropriate and consistent with the stated aim of the Bill’.[17]
Defence responded by
pointing to the defences available to an accused, including an offence specific
defence of reasonable excuse:
All existing Criminal Code Act
1995 defences will be available for the charged member, including the
defence of mistake of fact under s.9.2 of the Code in relation to the physical
element of failing to perform a duty or carry out an activity. Additionally, an
offence-specific defence of reasonable excuse (of which there are many uses for
offence provisions throughout the DFDA) for the relevant conduct will be
available,[18]
with the charged member bearing an evidential burden for the defence that is
consistent with the requirements of the Criminal Code s.13.3(3).[19]
In relation
to the maximum penalty for the offence, Defence advised that while ‘the
punishment of Dismissal from the Defence Force is substantial and reflects the
broad range of matters that may fall within this proposed service offence, it
is at the lowest end of maximum punishments available under the DFDA’.[20]
- GAP
Legal speculated that proposed section 35A may respond to
recommendations made by the Brereton Review
into allegations of unlawful conduct by Special Forces elements in Afghanistan.[21]
Defence responded that
the proposed discipline reform aspects of the Bill ‘have no relationship to the
inquiry undertaken by the IGADF – Brereton Report’, particularly in relation to
proposed section 35A, which was recommended by the 2017 SDS Review.[22]
- GAP
Legal raised concerns about the complementarity mechanisms in the Rome
Statute with proposed section 35A in the context of the IGADF Afghanistan inquiry and the findings in the
Brereton report.[23]
Defence noted ‘There is
no tension between the proposed section 35A offence and complementarity under
the Rome Statute in relation to offences alleged to have been committed by
Australian Defence Force personnel in Afghanistan. The offence has no
retrospective application’.[24]
The FADT Committee report also highlighted issues raised
by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary
Joint Committee on Human Rights in their consideration of the Bill (summarised
below). The report also acknowledged and accepted the Government’s responses to
additional questions posed by these committees (also summarised below).[25]
In its report, FADT Committee members made no additional
comments or dissenting reports.[26]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for
the Scrutiny of Bills (the Scrutiny Committee) considered the Bill in its 25
August 2021 Digest and sought clarification from the Minister on three
issues: the reverse evidential burden in proposed section 35A, the broad
scope of offence provisions and significant matters in delegated legislation.[27]
The Committee considered the Minister’s response to the issues raised and
provided a final assessment in its 21 October 2021 report.[28]
Reverse evidential burden
The Scrutiny Committee raised concerns about the proposed
‘use of offence-specific defences (which reverse the evidential burden of
proof) in proposed sections 35A and 48B’.[29]
The Scrutiny Committee also sought advice from the Minister on whether the Bill
‘can be amended to provide for a more specific defence in proposed subsection
35A(3)’, which states that subsection 35A(1) does not apply if the defendant
has a ‘reasonable excuse’, noting the evidential burden of proof in relation to
establishing this excuse applies to the defendant under the Criminal Code.[30]
The Minister informed the Committee that a charged ADF
member will have all Criminal Code defences available to them and the
proposed provisions of the Bill relating to evidential burden are consistent
with the Code as well as the Attorney-General’s Guide to
Framing Commonwealth Offences (the Guide).[31]
While noting that the Guide provides that the
defence of reasonable excuse should generally be avoided, the Minister
explained that the Guide provides that ‘if the Criminal Code
defences are insufficient, offence-specific defences adapted to the particular
circumstances should be applied’.[32]
The Minister characterised the reasonable excuse defence as ‘an additional
protection’ for a charged member.[33]
The Minister further explained that proposed subsection 35A(3) provides an
offence-specific defence, as opposed to being specified as an element of the
offence, as ‘circumstances that a charged member would likely raise for failing
to perform a duty or carry out an activity contrary to s.35A, would in most
cases, be peculiarly within the knowledge of the charged member’ and ‘it would
be more difficult for the prosecution to disprove than for the charged member
to establish the matter’.[34]
The Scrutiny Committee, however, was not satisfied with the
Minister’s response on this issue, stating it:
… does not consider that the minister's response has
adequately addressed why a more specific defence (or defences) could not have
been included in proposed subsection 35A(3) instead of a defence of 'reasonable
excuse'. The committee does not consider the fact that the defence is not
central to the question of culpability or that there are a wide variety of
duties undertaken by defence members to be a sufficient explanation as to why a
more specific defence (or defences) could not have been designed.[35]
The Scrutiny Committee highlighted the issue of the
‘offence-specific defence in proposed subsection 35A(3)’ and left the decision
to the Senate as to ‘the appropriateness of providing an offence-specific
defence of 'reasonable excuse' in circumstances where a more specific defence
(or defences) could have been included’. The Committee made no further comment
on subsection 48B(2).[36]
Broad scope of offence provisions
The Scrutiny Committee raised concerns about the
interpretation of proposed section 48A which creates a cyber-bullying
offence. In particular the Committee noted that the Bill does not provide
guidance on what conduct might constitute using a social media service ‘in a
way that a reasonable person would regard as offensive’.[37]
Accordingly, the Scrutiny Committee sought advice from the
Minister about amending the Bill ‘to include further guidance or examples as to
what conduct might constitute using a social media service or relevant
electronic service 'in a way that a reasonable person would regard as
offensive’.[38]
The Minister agreed with the Committee that the Bill would
benefit from inclusion of the interpretative guidance sought
by the Committee, which is aligned with section 8 of the Online Safety Act
2021 and section 473.4 of the Criminal Code Act
1995 in dealing with ‘offensive’ use of social media, and instructed
the inclusion of the following clause within section 48A:
48A (xx) Determining whether social media etc. use is
offensive
(1) The
matters to be taken into account in deciding for the purposes of this Part
whether a reasonable person would regard a particular use of a social media
service or relevant electronic service, as being, in all the circumstances, offensive,
include:
(a) the
standards of morality, decency and propriety generally accepted by reasonable
adults; and
(b) the literary, artistic
or educational merit (if any) of the material; and
(c) the
general character of the material (including whether it is of a medical, legal
or scientific character).[39]
The Scrutiny Committee remained concerned about the
proposed amendment noting:
… that basing what would constitute 'offensive' use of a
service on the view of a 'reasonable person' continues to leave the offence
unclear as reasonable people may differ on the matters listed in the draft new
provision and a court will not be in a position to survey public opinion, nor
does a court have special knowledge or understanding of the standards of
morality which may generally be accepted in the community.[40]
The Committee noted the proposed amendment would
‘partially address the scrutiny concerns’ and left the outstanding scrutiny
concerns for Senate consideration.[41]
Significant matters in delegated
legislation
The Scrutiny Committee raised concerns about proposed
section 9FA (procedure in dealing with disciplinary infringements) and proposed section 9J (consequences of punishments).[42]
Under proposed section 9FA, a discipline officer dealing with a disciplinary
infringement must follow procedural requirements specified by the Chief of the
Defence Force in a legislative instrument. Under proposed section 9J the
Chief of the Defence Force or a service chief may make rules by legislative instrument
with respect to consequences that are to flow from the imposition of certain punishments,
including the restriction of privileges and stoppage of leave. The Scrutiny
Committee questioned the necessity and appropriateness of leaving ‘the
significant elements of the operation of the disciplinary infringement scheme
set out in the proposed sections 9FA and 9J to delegated legislation’ and
whether amendments to the Bill could ‘include at least high-level guidance
regarding the operation of these elements on the face of the primary
legislation’.[43]
The Minister assured the Committee that once the Bill is
passed the intent is to amend the Defence Force
Discipline (Consequences of Punishment) Rules 2018 to reflect the new
disciplinary infringements system.[44]
The Minister did not consider that the Bill should be amended to include
high-level guidance on the operation of sections 9FA and 9J, noting the Bill
adequately deals with the procedural issues under Part 1A. The Minister stated
that the guidance contained in the DFDA and subordinate legislation,
including the amended Defence Force Discipline (Consequences of Punishment)
Rules 2018 will give effect to the legislative requirements.[45]
In response, the Scrutiny Committee stated its consistent
view ‘that significant matters, such as the operation of a disciplinary
infringement framework, should be included in primary legislation unless a sound
justification for the use of delegated legislation is provided’. The Committee
noted that it ‘has not generally accepted consistency with existing legislation
or a reliance on non-legislative policy guidance to be a sufficient
justification for leaving significant matters to delegated legislation’.[46]
The Scrutiny Committee remained concerned about the
‘potential impact on personal rights and liberties’ in the absence of
high-level guidance in the primary legislation on the operation of the
disciplinary infringement scheme. These issues were brought to the attention of
Senators for further consideration and the Senate Standing Committee for the
Scrutiny of Delegated Legislation.[47]
Statement of
Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has
assessed the Bill’s compatibility with the human rights and freedoms recognised
or declared in the international instruments listed in section 3 of that Act.
The Government considers that the Bill is compatible.[48]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights (the
Human Rights Committee) considered the Bill in its 25 August 2021 scrutiny
report and raised concern as to the compatibility of proposed section 48A,
the cyber-bullying offence, with the right to freedom of expression. In
particular the Human Rights Committee questioned the proportionality of the
measure, particularly in light of the significant maximum penalty (two years
imprisonment) and the fact that the service offence potentially covers circumstances
where the offending conduct occurs outside of what might ordinarily be
considered a military context.[49]
In order to assess the proportionality of proposed section
48A with the right to freedom of expression, the Human Rights Committee asked
the Minister for further information, and in particular:
a. what type of use is likely to be
considered 'offensive' for the purposes of proposed section 48A
b.
is it intended that the term
'offensive' will be considered together with the terms 'threatening,
intimidating, harassing or humiliating', or is it intended to have a
stand-alone meaning, and, if so, is it intended that this would capture uses
that a reasonable person would merely find offensive, without necessarily any
profound and serious effects
c. could this service offence apply
to ADF members in their personal capacity where the offensive use has no, or
little, link to their ADF service
d. what safeguards are in place to
ensure the proposed service offence does not unduly restrict an ADF member's
freedom of expression and
e. what other, less rights
restrictive approaches would be available to achieve the stated objective. In
this respect, further information is required as to the approach currently
taken to deal with cyber-bullying in the ADF and why this has proved not to be
effective to achieve the objective of maintaining military discipline.[50]
The Minister responded in detail to the questions posed by
the Human Rights Committee in its August 2021 report.[51]
The response referred to the High Court’s judgment in McCloy v New South
Wales to support the proportionality of proposed section 48A, asserting
that the provision was suitable, necessary and adequate in its balance.[52]
In relation to the specific questions posed by the Human
Rights Committee, the Minister advised:
- the
Government intended to amend the Bill to include interpretative guidance on
offensive behaviour, as discussed above in relation to the Scrutiny Committee[53]
- the term
'offensive' is intended to stand-alone and capture social media use that a
reasonable person would regard as offensive without the requirement of any
'profound or serious effects'[54]
- yes,
it is possible for members of the Australian Defence Force to be prosecuted for
a service offence committed in circumstances which have little link to their
service in the Defence Force (see Private R v Cowen [2020]
HCA 31), other than the offence being committed as a Defence member[55]
- a Defence
member's freedom of expression is not unduly restricted by proposed section 48A,
but will be restricted only to the extent that a reasonable person in the
circumstances would regard the member's social media use as 'offensive or as
threatening, intimidating, harassing or humiliating another person[56]
- Defence
has in place a Media and Communication Policy including Personal/Private Social
Media Policy that places a number of restrictions upon members of the Defence
Force. Currently breaches of the policy may be dealt with by way of
administrative action, which may include termination of the member's service in
the Australian Defence Force. However, the Minister advised that administrative
action is not regarded as an effective means of promptly addressing instances
of cyber-bullying which may occur in operational environments such as overseas
deployments or in close quarter environments such as on-board Navy ships.[57]
After considering the Minister’s response, the Human
Rights Committee concluded:
… while limitations on the right to freedom of expression are
permissible to ensure military discipline is not undermined, the committee
considers it has not been established that the offence relating to uses that
may be regarded as ‘offensive’ would be a permissible limit on this right. This
is particularly so noting the breadth of the potential restriction on an ADF
member’s right to freedom of expression; that a period of detention or
imprisonment may be imposed; that the service offence applies to members in
their personal capacity and without any link to their service; and that it
appears there may be less rights restrictive ways to enforce military
discipline.[58]
Accordingly, the Human Rights Committee suggested further
amendments to proposed section 48A of the Bill to include the following:
(a) limit
the offence to uses of social media or other electronic services that a
reasonable person would regard as threatening, intimidating, harassing or
humiliating to another person (and not merely offensive); or
(b) the
prohibition on offensive uses of social media or other electronic services be
restricted to situations where there is a connection to service in the ADF and
the need to maintain military discipline.[59]
An update to the statement of compatibility with human
rights was also recommended and the Committee’s outstanding concerns brought to
the Minister and Parliament’s attention.[60]
Policy
position of non-government parties/independents
The Australian Labor Party (ALP) supported the Bill in the
House of Representatives but also moved to refer the Bill to the Senate Foreign
Affairs, Defence and Trade Legislation Committee ‘for a short inquiry to ensure
proper scrutiny and stakeholder consultation, and to help clarify the
consequences of the amendments’.[61]
At the time of writing, other non-government parties and
independents do not appear to have commented publicly on the Bill.
Position of major interest groups
Submissions to the FADT Committee inquiry into the Bill
were generally supportive.[62]
The Department of Defence advised:
… 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 Defence Force Discipline Act
1982 (DFDA). A core objective of these changes is to reduce risks to the
mental health and well-being of all individuals effected by their involvement
in a disciplinary event.
…
if the amendments to the DFDA proposed in the Bill are
enacted, this will have a substantial and positive effect on the administration
of discipline and improving the well-being for all those who serve in our
Defence Force.[63]
The Judge Advocate General (JAG) was broadly supportive of
the Bill but expressed a note of caution about the cyber-bullying offences in
relation to ADF members in proposed section 48A. The JAG remarked:
This proposed s. 48A offence requires no connection to the
discipline of the Defence Force beyond the accused being a member of the
Defence Force. This is exceptional. 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.
…
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.[64]
The Inspector-General of the Australian Defence Force
(IGADF), James Gaynor CSC, submitted:
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 Defence Force Discipline
Act 1982 will enhance the overall fairness and efficiency of discipline in
the Australian Defence Force
…
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.[65]
The IGADF assured the FADT Committee that the IGADF and
the JAG would provide oversight, review and appeal mechanisms to charged ADF
members.[66]
The Centre for Military and Security Law, Australian National
University College of Law, stated:
The reforms to the DFDA that are proposed in this Bill are a
balanced and measured response to legitimate criticisms that have been made
about the operation of the DFDA as the 21st Century rolls on. 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
proposed amendments to the DFDA are supported.[67]
The Defence Force Welfare Association (DFWA) expressed its
broad support for the Bill noting the ‘changes will significantly improve the
efficiency and effectiveness of the discipline system within units’. [68]
However, the DFWA expressed concern with proposed sections 48A and 48B on cyber‑bullying
offences, noting the following issues:
• The technical nature of evidence
relating to social media means the evidentiary and investigatory requirements in
many (if not most) cases will be beyond the scope of unit investigation (i.e.
will require specialist service police/ADFIS investigative capability).
• Whether a Commanding Officer or
Senior Summary Authority has the capability deal with this offence.
• Given the above, 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.[69]
DFWA is of the view that the concerns outlined above 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 DFWA’s
view is the Bill adequately protects the rights and welfare of ADF members.[70]
The Australia Defence Association supports the Bill in its
entirety as a ‘common-sense’ update to the ADF’s disciplinary system.[71]
Financial
implications
The Explanatory Memorandum notes there will be no
financial impact as a consequence of the Bill.[72]
Key issues
and provisions
Disciplinary Infringements
Schedule 1 to the Bill deals with disciplinary
infringements.
As it currently stands, the DFDA contains Part IXA,
entitled Special Procedures Relating to Minor Disciplinary Infringements.
Item 14 of Schedule 1 removes Part IXA in its entirety. Instead, item
1 of Schedule 1 inserts proposed Part IA, entitled Disciplinary
Infringements. Proposed Part IA is intended to cover all aspects of
this subject; with the proviso, as noted by the Scrutiny Committee and
discussed earlier in this Digest, that some important matters such as in proposed
section 9FA (procedure to be followed by a discipline officer) remain to be
included in delegated legislation.
Proposed section 9A gives a summary of the Part,
noting a distinction between disciplinary infringements, which Part IA will
deal with, and service offences, which are already covered in the DFDA
and which are generally more serious offences. Proposed section 9B notes
that the object of the new Part is to deal with ‘minor service discipline
matters’ in a manner which is fair and efficient; and meets the disciplinary
needs of the Defence Force.
The disciplinary infringements scheme generally applies
only to prescribed defence members, defined in proposed
section 9CA as at or below the rank of captain in the Army, lieutenant in
the Navy, or flight lieutenant in the Air Force. Some exceptions can be made by
legislative instrument by a service chief in the case of a warrant officer,
chief petty officer or flight sergeant.
A prescribed defence member can elect to be dealt with
under the infringement scheme after receiving an infringement notice. In doing
so the prescribed defence member:
- is
taken to have admitted the offence and
- cannot
later be subject to a service tribunal in relation to the same offence
(assuming that the infringement process has been completed in accordance with
the DFDA).[73]
The disciplinary infringement provisions are clearly set
out in proposed sections 9DA to 9DP (16 in total). The infringements set
out in proposed sections 9DH to 9DP are less minor infringements and can
only be handled by ‘senior discipline officers’. (This will be described
below.)
Infringements range from absence from duty for short
periods, failing to comply with lawful commands, failing to carry out a duty,
being intoxicated on duty, to certain driving offences. This is an inclusive
list, which is to say that if the member does something which does not fall
under the 16 provisions, they cannot access the disciplinary infringements
scheme.
An infringement officer can issue an infringement notice
to a member under the following conditions and with the following details (proposed
section 9E):
- they
believe on reasonable grounds that an infringement has occurred and that the
member had no reasonable excuse
- the
notice must be given as soon as reasonably practicable
- it
must
- contain
details of the infringement
- specify
whether the infringement will be dealt with by a discipline officer or a senior
discipline officer
- outline
the member’s options, and
- set
out what punishments are possible.
If, after receiving an infringement notice, the member
does not respond or elects to be dealt with under the infringement scheme and
then withdraws that election, the infringement officer may refer that
infringement to a member of the Defence Force authorised by section 87 of the DFDA
to determine whether action should be taken under the service offence
provisions (proposed section 9EC).
Proposed section 9FB sets out the penalties that
can be applied under the scheme. Assuming that any penalty is applied—for
example, a decision to apply no penalty may occur where the infringement is
regarded as trivial—penalties range from a reprimand to a fine of a maximum of
three days’ pay.
If a decision to impose a penalty is made by a senior
discipline officer, it is automatically reviewed by a commanding officer, who
can confirm the original decision, decide that no punishment is imposed, or
substitute a lesser (but not a greater) penalty than the original.[74]
Proposed sections 9H and 9HA deal with the
appointment of infringement officers, discipline officers and senior discipline
officers. Each of these groups is appointed by a commanding officer by an
instrument in writing, with the three roles filled generally by members of
increasing rank. For instance, an infringement officer can be a non-commissioned
officer, a discipline officer any officer, including warrant officers or their
equivalent in the other services, while a senior discipline officer will
ordinarily be a lieutenant commander, major or squadron leader.
Proposed section 9JB says that the Chief of the
Defence Force may by legislative instrument make rules for the keeping,
retention, use or destruction of records relating to the infringement scheme.
This is a somewhat controversial provision, as the current regime says at
section 169H (which is to be repealed by item 14) that infringement
records are to be destroyed after 12 months.
However, paragraphs 20-22 of the Statement of
Compatibility with Human Rights, contained in the Bill’s Explanatory
Memorandum, say:
… 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.[75]
Timing
Item 16 specifies that the scheme in proposed
Part IA only applies to infringements that occur at or after the time that
Part IA commences. Similarly, item 17 specifies that infringements that
occurred before that time will continue to be treated under current Part IXA.
There is no option for a defence member to elect to have an ‘old’ infringement
handled under the new scheme.
Summary Authorities
Schedule 2 of the Bill deals with summary
authorities. Summary authorities are generally defence members who, consistent
with the roles set out for them in the DFDA, hear and enforce
disciplinary proceedings within the Defence Force, as distinct from, say, court
martials or Defence Force Magistrates.
Aside from commanding officers, currently the DFDA
provides for two classes of summary authority, a superior summary authority and
a subordinate summary authority.[76]
The Bill proposes to remove the latter level, in order ‘to reduce the number of
summary authority levels and therefore simplify the manner in which minor
disciplinary issues are enforced’.[77]
Although there will no longer be a subordinate summary authority, the term
‘superior summary authority’ is retained. Part 1 of Schedule 2 proposes a
number of amendments to the DFDA to remove all references to a
subordinate summary authority.
Jurisdiction and punishments
The major amendment to the DFDA proposed by Part
2 of Schedule 2 is that it includes three proposed new sections, 69A,
69B and 69C which respectively set out in table form the punishments that
can be imposed by a court martial or defence force magistrate,[78]
by a superior summary authority,[79]
and by a commanding officer.[80]
These sections replace tables currently contained in Schedules to the DFDA,
which will be repealed on the Bill coming into force.[81]
These proposed sections clearly set out the limitations of
the powers of the various authorities. Each of the three proposed sections has
words to the effect that punishments other than those set out in the tables
cannot be applied. The punishments listed in these three proposed sections are
clearly set out and do not require further explanation.
Section 106 of the DFDA deals with the
jurisdiction of a superior summary authority. Item 39 proposes to
replace current section 106 and states that a superior summary authority can
deal with any charge against any person (other than a prescribed offence),
although their jurisdiction to try charges is limited by proposed subsection
106(2) to persons at least one rank below them when on active service and two
ranks below them otherwise. They can also deal with a charge against a person
who is not a defence member.[82]
This last provision is unchanged from the current version of the Act.
What is meant by ‘deal with a charge’ is set out in item
41, which proposes to replace the wording of current section 109.
Essentially ‘deal with a charge’ means decide how a charge should be proceeded
with, for example by assessing the evidence to see if a charge should proceed
at all, by trying the charge themselves if they have the jurisdiction, by
referring it to another superior summary authority (presumably, for example,
where a conflict of interest may occur), or by referring it to the Director of
Military Prosecutions.
Timing
The new law in Schedule 2 applies to any service
offence committed, or alleged to have been committed, at or after this part of
the Bill becomes law.[83]
It also applies to a service offence committed before that time but not yet
charged; although a number of provisions of the old law, such as available
punishments, continue to apply to such matters.[84]
The old law continues to apply where charges were laid before the new law took
effect.[85]
New service offences
Schedule 3 proposes to introduce three new service
offences, which are:
- failure
to perform duty or carry out activity[86]
- cyber-bullying
offences[87]
- failure
to comply with requirement to notify a change in circumstances, where, for
instance, a change in circumstances may affect a recipient’s entitlement to a
benefit.[88]
Much interest in these new charges related to cyber-bullying
offences. Discussion on this is contained in the Committee Consideration section
of this Digest. Proposed subsection 48A(1) provides:
A defence member commits an offence if:
(a) the member uses a social media service or
relevant electronic service; and
(b) the
member does so in a way that a reasonable person would regard as offensive or
as threatening, intimidating, harassing or humiliating another person.
The penalty for such an offence is a maximum two years’
imprisonment. The terms ‘offensive’, ‘threatening’ et cetera are not further
defined and would take their common meaning. It was noted earlier in this Digest
(page 7) that the Minister has agreed to an amendment or addition to proposed
section 48A to provide some explanation of how Parliament intended this
provision to be interpreted. At the time of writing, no such amendment has been
moved.
It can be seen from the wording of proposed subsection
48A(1) that the target of the alleged cyber-bullying is not specified. This
means that the target could be any person, and not just a defence member.
In a submission to the Senate inquiry into the Bill, the
Judge Advocate General expressed concern that a summary authority, who is
typically a military officer without legal qualifications, may lack competence
in dealing with a section 48A(1) charge because of the complex legal issues
involved.[89]
However, as noted above the proposed new section 106 of the DFDA,
on passage of the Bill, will give the summary authority the option of
forwarding a charge to the Director of Military Prosecutions, who is legally
qualified.[90]
In his second reading speech, Minister Gee said:
Cyberbullying conduct is corrosive to discipline and can have
an extremely adverse effect on the mental wellbeing of its victims.
The new cyberbullying service offence will send a very strong
message to those in our Defence Force that the use of social media to
cyberbully another person is unacceptable and will not be tolerated in the
Australian Defence Force.
The intention of this new service offence is to enable
Defence to protect victims of cyberbullying through early intervention and
putting a stop to the cyberbullying behaviour before it gets out of hand.
It will protect the people who choose to serve in our Defence
Force.[91]
Item 5 of Schedule 3 introduces proposed section
84A which states that where a person is convicted by a service tribunal of
a cyber-bullying offence, part or all of the action the tribunal may take is
ordering the person to take reasonable action to remove or delete the relevant
material. A failure to follow such an order will be an offence attracting a
maximum of two years imprisonment under proposed section 48B.
Other provisions
A number of other amendments in the Bill are minor in
nature, in part reflecting changes in language usage. For example, item 15 of
Schedule 2 (and some other items) replaces the term ‘member of the Defence
Force’ with ‘defence member’. These changes appear purely linguistic, and do
not change the group of persons referenced. Other minor changes are adequately
explained in the Explanatory Memorandum.
Concluding comments
This Bill has passed through its three reading stages in
the House of Representatives without amendment. The Senate Foreign Affairs,
Defence and Trade Legislation Committee recommended the Bill be passed and no
dissenting report was issued. The Scrutiny of Bills Committee and the Human
Rights Committees raised concerns with aspects of the Bill, particularly in
relation to the reach and proportionality of the new service offence of
cyber-bullying. In response, the Minister has advised that an amendment to that
section will be moved by the Government to provide guidance on the matters to
be taken into account in deciding whether a reasonable person would regard a
use of a social media service as offensive.
[1]. ARM Watson,
Defence
Force Disciplinary Code: report of the 1973 Working Party, Government Printer
of Australia, Canberra, 1974, p. iii.
[2]. Ibid.,
pp. 7–75.
[3]. D
Killen, ‘Answers
to Question in writing: Defence Force Discipline Code’, [Questioner: G
Scholes], Question 4007, House of Representatives, Debates, 17 March
1982, p. 1119; Defence
Force Discipline Bill 1982; Defence Force
Discipline Act 1982 (Cth), as made.
[4]. Department
of Defence (DoD), ‘Military
justice: reports’, DoD website, n.d.
[5]. D Peever, Review of the
summary discipline system 2017, Department of Defence, Canberra, 2017, pp.
23–24.
[6]. Ibid.,
p. 15.
[7]. Explanatory
Memorandum, Defence Legislation Amendment (Discipline Reform) Bill 2021; Ibid.,
pp. 3 and 10–14.
[8]. Senate Foreign Affairs, Defence and Trade Legislation
Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021 [provisions],
Senate, Canberra, 14 October 2021, p. 26.
[9]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, submissions.
[10]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, Additional
documents.
[11]. GAP Veteran & Legal Services (GAP Legal), Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, 30 September 2021, p. 3.
[12]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, Additional
documents, op. cit., pp. [2]–[3].
[13]. GAP Veteran
& Legal Services (GAP Legal), Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, op. cit., pp. 3–4.
[14]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, Senate, Canberra, Additional
documents, op. cit., pp. [3]–[4].
[15]. Proposed
subsection 35A(2), at item 1 of Schedule 3 to the Bill.
[16]. Proposed
subsection 35A(1), at item 1 of Schedule 3 to the Bill,
applies to ADF members that commit ‘an offence if (a) the member’s office or appointment,
or the requirements of the Defence Force, require the member to perform a duty
or carry out an activity; and (b) the member fails to perform the duty or carry
out the activity’, Defence
Legislation Amendment (Discipline Reform) Bill 2021.
[17]. GAP Veteran & Legal Services (GAP Legal), Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, op. cit., pp. [4]–[5].
[18]. This
defence is provided by proposed subsection 35A(3), at item 1 of Schedule
3 to the Bill.
[19]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, Additional
documents, op. cit., p. [5].
[20]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, Additional
documents, op. cit., p. [7].
[21]. GAP Veteran
& Legal Services (GAP Legal), Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, op. cit., p. 5.
[22]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, Additional
documents, op. cit., p. [7].
[23]. Article 1 of
the Rome Statute of the International Criminal Court states the Court ‘shall
be complementary to national criminal jurisdictions’, Rome
Statute of the International Criminal Court 1998, opened for signature
17 July 1998, [2002] ATS 15 (entered into force 1 July 2002). For more
information see Paul Seils, Handbook
on Complementarity: An Introduction to the Role of National Courts and the ICC
in Prosecuting International Crimes, International Center for
Transitional Justice.
[24]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021, Additional
documents, op. cit., p. [8].
[25]. Senate
Foreign Affairs, Defence and Trade Legislation Committee, Defence
Legislation Amendment (Discipline Reform) Bill 2021 [provisions], op.
cit.
[26]. Ibid.
[27]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 13, 2021, 25 August 2021, pp. 4–7.
[28]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 16, 2021, 21 October 2021, pp. 84–94.
[29]. As
discussed above, proposed section 35A, at item 1 of Schedule 3
to the Bill creates an offence of failure to perform duty or carry out activity.
Proposed section 48B, at item 2 of Schedule 3 creates an
offence of failing to comply with an order to take reasonable action to remove,
retract, recover, delete or destroy cyber-bullying materials.
[30]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 16, 2021, op. cit., p. 88.
[31]. Ibid.,
pp. 88–90.
[32]. Ibid.,
p. 88.
[33]. Ibid.,
p. 89.
[34]. Ibid.,
pp. 88–89.
[35]. Ibid.,
p. 91.
[36]. Ibid.,
pp. 91–92.
[37]. Ibid., pp.
92.
[38]. Ibid.,
p. 92.
[39]. Ibid.,
p. 94.
[40]. Ibid.,
p. 94.
[41]. Ibid.,
p. 94.
[42]. Both
these provisions are at item 1 of Schedule 1 to the Bill.
[43]. Ibid.,
p. 84.
[44]. Ibid.,
p. 86.
[45]. Ibid.,
p. 86.
[46]. Ibid.,
p. 87.
[47]. Ibid.,
p. 87.
[48]. The
Statement of Compatibility with Human Rights can be found at pages 5–10 of the Explanatory
Memorandum to the Bill.
[49]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 10, 2021, 25 August 2021, pp. 8–13.
[50]. Ibid.,
pp. 12–13.
[51]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 12, 2021, 20 October 2021, pp. 35–51.
[52]. Ibid.,
pp. 38–39; McCloy v New South Wales [2015]
HCA 34.
[53]. Ibid.,
pp. 43–44.
[54]. Ibid.,
p. 44.
[55]. Ibid.,
pp. 44–45.
[56]. Ibid.,
p. 45.
[57]. Ibid.,
pp. 45–46.
[58]. Ibid.,
pp. 50–51.
[59]. Ibid.,
p. 51.
[60]. Ibid.,
p. 51.
[61]. S
Neumann, ‘Second
reading speech: Defence Legislation Amendment (Discipline Reform) Bill 2021’,
House of Representatives, Debates, 30 August 2021, pp. 87–89; S Neumann
(Shadow Minister for Veterans’ Affairs and Defence Personnel) and K Kitching (Deputy
Chair of the Senate Foreign Affairs, Defence and Trade Legislation Committee), Labor
refers proposed changes to Australia's military discipline system to Senate
inquiry, media release, 2 September 2021.
[62]. Senate Foreign
Affairs, Defence and Trade Legislation Committee, Defence Legislation
Amendment (Discipline Reform) Bill 2021, submissions.
[63]. Department
of Defence, Submission
to the Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, 17 September 2021, pp. 1 and 10.
[64]. Office
of the Judge Advocate General, Submission
to the Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, 8 September 2021, pp. 1–2. Section 474.17 of the Criminal Code Act
1995 provides an offence of using a carriage service to menace, harass
or cause offence, which has a maximum penalty of three years’ imprisonment.
[65]. Office
of the Inspector-General of the Australian Defence Force, Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, 16 September 2021, p. 1.
[66]. Ibid.,
p. 2.
[67]. Centre
for Military and Security Law, Australian National University College of Law, Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, 16 September 2021, p. 5.
[68]. Defence
Force Welfare Association, Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, 16 September 2021, pp. 1–2.
[69]. Ibid.,
p. 2.
[70]. Ibid.,
p. 3.
[71]. Australia Defence Association, Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee Inquiry
into the provisions of the Defence Legislation Amendment (Discipline Reform)
Bill 2021, 21 September 2021.
[72]. Explanatory
Memorandum, Defence Legislation Amendment (Discipline Reform) Bill 2021, p.
2.
[73]. Proposed
section 9EB and proposed subsection 9C(2), at item 1 of Schedule
1 to the Bill.
[74]. DFDA,
proposed section 9G.
[75]. Explanatory
Memorandum, Defence Legislation Amendment (Discipline Reform) Bill 2021, p.
2.
[76]. DFDA,
section 105.
[77]. Explanatory
Memorandum, op. cit., paragraph 1.
[78]. DFDA,
proposed section 69A.
[79]. Ibid.,
proposed section 69B.
[80]. Ibid.,
proposed section 69C.
[81]. Schedule
2, Item 52.
[82]. DFDA,
proposed paragraph 106(2)(b).
[83]. Schedule
2, Item 54.
[84]. Ibid.,
Item 55.
[85]. Ibid.,
Item 56.
[86]. Proposed
section 35A, at item 1 of Schedule 3.
[87]. Proposed
sections 48A and 48B, at item 2 of Schedule 3.
[88]. Proposed
section 56A, at item 3 of Schedule 3.
[89]. Office
of the Judge Advocate General, Submission
to Senate Foreign Affairs, Defence and Trade Legislation Committee, Inquiry
into the Defence Legislation Amendment (Discipline Reform) Bill 2021, 8
September 2021, p. 2.
[90]. DFDA,
section 188GG.
[91]. Andrew
Gee, ‘Second
reading speech: Defence Legislation Amendment (Discipline Reform) Bill 2021’,
House of Representatives, Debates, (proof), 12 August 2021, p. 3.
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