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Defence Legislation Amendment (Discipline Reform) Bill 2021



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ISSN 1328-8091

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BILLS DIGEST NO. 33, 2021-22 22 NOVEMBER 2021

Defence Legislation Amendment (Discipline Reform) Bill 2021 Nicole Brangwin Foreign Affairs, Defence and Security Section David Markham Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 2

Structure of the Bill ......................................................... 2

Background ..................................................................... 2

Committee consideration ................................................ 3

Senate Foreign Affairs, Defence and Trade Legislation Committee ................................................ 3

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 6

Reverse evidential burden ........................................ 6

Broad scope of offence provisions ............................ 7

Significant matters in delegated legislation .............. 8 Statement of Compatibility with Human Rights................ 8

Parliamentary Joint Committee on Human Rights ..... 8 Policy position of non-government parties/independents.................................................... 10

Position of major interest groups................................... 11

Financial implications .................................................... 12

Key issues and provisions .............................................. 13

Disciplinary Infringements ........................................ 13

Timing ...................................................................... 14

Summary Authorities ................................................ 14

Jurisdiction and punishments ................................... 15

Timing ...................................................................... 15

New service offences ................................................ 16

Other provisions ........................................................... 17

Concluding comments ................................................... 17

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.

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Defence Legislation Amendment (Discipline Reform) Bill 2021 2

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

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.

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Defence Legislation Amendment (Discipline Reform) Bill 2021 3

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:

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.

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Defence Legislation Amendment (Discipline Reform) Bill 2021 4

• 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

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.

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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

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.

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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

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.

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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

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.

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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

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.

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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:

a. the Government intended to amend the Bill to include interpretative guidance on offensive behaviour, as discussed above in relation to the Scrutiny Committee53

b. 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

c. 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 member55

d. 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

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.

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circumstances would regard the member's social media use as 'offensive or as threatening, intimidating, harassing or humiliating another person56

e. 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.

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.

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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

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.

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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

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.

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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.

73. Proposed section 9EB and proposed subsection 9C(2), at item 1 of Schedule 1 to the Bill.

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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

74. DFDA, proposed section 9G. 75. Explanatory Memorandum, Defence Legislation Amendment (Discipline Reform) Bill 2021, p. 2.

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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,

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.

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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 activity86

• cyber-bullying offences87

• 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.

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.

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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.

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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