2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

DEFENCE LEGISLATION AMENDMENT (DISCIPLINE REFORM) BILL 2021

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be moved on behalf of the Government

 

 

(Circulated by the authority of the Minister for Defence Personnel, the Honourable

Andrew Gee MP)

 

AMENDMENT TO THE DEFENCE LEGISLATION AMENDMENT (DISCIPLINE REFORM) BILL 2021

 

GENERAL OUTLINE

1.                   The purpose of this amendment to the Defence Legislation Amendment (Discipline Reform) Bill 2021 (the Bill) is to insert the term ‘in all the circumstances’ and to remove the element of ‘offensive’ from the new cyber-bullying offence set out in the Bill.

2.                   The cyber-bullying offence at new section 48A will no longer apply in relation to material that a reasonable person would regard in all the circumstances as offensive. Instead, the cyber-bullying offence will apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person.

NOTES ON AMENDMENTS

3.                   This amendment would insert the words ‘in all the circumstances’ before ‘regard’ and remove the words ‘as offensive or’ from new paragraph 48A(1)(b) as set out in clause 2 of Schedule 3 of the Bill. The effect is that the cyber-bullying offence set out in this clause applies when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person.

 

FINANCIAL IMPACT

4.                        Nil.

 

 

SUPPLEMENTARY STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS

Amendment to Defence Legislation Amendment (Discipline Reform) Bill 2021

General outline

1.                   The purpose of this amendment is to insert the term ‘in all the circumstances’ and to remove the element of ‘offensive’ from the new cyber-bullying offence set out in clause 2 of Schedule 3 of the Bill.

2.                   The cyber-bullying offence will apply when a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person.

Human rights implications

The right to freedom of expression and opinion

3.         The amendment narrows the circumstances in which a defence member’s use of social media or a relevant electronic service will amount to a service offence.  

4.         The proposed cyber-bullying offence, as amended by this amendment, engages the right to freedom of expression and opinion, as it limits a defence member’s right to express their opinions via a social media service or relevant electronic service. The service offence is directed at a legitimate objective: the maintenance and enforcement of service discipline. In particular, the service offence will discourage defence members from engaging in

cyber-bullying by using social media or relevant electronic service, which can adversely impact the good order and discipline of the Defence Force. Introduction of the service offence is necessary, noting available alternatives, such as administrative sanctions, lack an immediate and public deterrent effect for maintaining or enforcing service discipline.

5.         By removing the term ‘offensive’ from s.48A(1)(b), this amendment will mean that the service offence will be available in a narrower range of circumstances, in particular where a defence member has used a social media service or relevant electronic service in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person. The insertion of the text ‘in all the circumstances’ within section 48A(1)(b) will provide context for the service tribunal to have regard to when applying the reasonable person test.

Conclusion

8.         This amendment is compatible with human rights as it promotes human rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to a legitimate aim; the maintenance and enforcement of service discipline.