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Defence Legislation Amendment (Discipline Reform) Bill 2021

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2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

DEFENCE LEGISLATION AMENDMENT (DISCIPLINE REFORM) BILL 2021

 

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Defence Personnel, the Honourable Andrew Gee MP)

 



 

DEFENCE LEGISLATION AMENDMENT (DISCIPLINE REFORM) BILL 2021

 

OUTLINE

This Addendum to the Explanatory Memorandum to the Defence Legislation Amendment (Discipline Reform) Bill 2021 (the Bill) provides further explanation of the provisions of the Bill.

This Addendum responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills, in Scrutiny Digest 13 of 2021 (25 August 2021) and Scrutiny Digest 16 of 2021 (21 October 2021), and by the Parliamentary Joint Committee on Human Rights in Report 10 of 2021 (26 August 2021) and Report 12 of 2021 (20 October 2021).

This Addendum is to be read in conjunction with the Explanatory Memorandum to the Bill, including the Human Rights Compatibility Statement.

 



 

ADDITIONAL OBSERVATIONS FOR STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

After paragraph 39 insert:

“39A The object of the new s.48A cyber-bullying service offence (and complementary s.84A removal order and s.48B failure to comply with a removal order), is to discourage and prevent defence members from engaging in cyber-bullying by providing command with an effective and efficient means to deal with cyber-bullying by defence members via a social media or relevant electronic service, that can adversely impact the good order and discipline of the Defence Force.

39B     Their Honours in Private R v Cowen on point commented: [1]

‘Today, the speed and efficiency of communications, together with the better educated and more diverse membership of the ADF, have given rise to a different milieu in which the likely effect of such disturbances upon discipline and morale within the ADF is to be assessed, and in which the legislative power in s 51(vi) of the Constitution falls to be exercised. Such disturbances, and the ADF's response to them, could be expected to be known immediately throughout the ADF, and to be the subject of concern among servicemen and servicewomen until the controversy is resolved.’

39C   The scope of s.48A extends to cyber-bullying by a defence member to another person, meaning that cyber-bullying can impact any person. To the extent that the use of social media or relevant electronic service by a defence member, and contrary to s.48A, could also amount to conduct undertaken off-duty by a defence member or beyond the scope of defence duty, it is appropriate to note what the High Court has said in Re Aird; Ex-parte Alpert , a case which involved a member of the Army who was off-duty and on recreation leave in another country, who challenged his prosecution before a superior service tribunal:

‘A soldier who…undermines the discipline and morale of his army…He does so whether he is on active service or recreation leave.’ [2]

39D   For an offence contrary to s.48A, the use of a social media service or relevant electronic service by a defence member, that is done so in a way that a reasonable person would regard in all the circumstances as threatening, intimidating, harassing or humiliating another person, there would be no requirement for the subject of the social media etc use to receive or view the cyber-bullying material when applying the reasonable person test.

39E   The need to maintain and enforce discipline in the Defence Force, including the deterrent effect of being able to deal with breaches of military discipline swiftly under the provisions of the Act, are not able to be achieved through administrative action, such as termination, formal warning or censure. While administrative action may be appropriate in certain circumstances, it is not 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 and boats.”



 

ADDITIONAL NOTES ON CLAUSES

Schedule 1 - Disciplinary infringements

Item 1: Section 9FA

On page 17, after the sentence: ‘ The discipline officer is required to take into account any evidence or witness information presented by the infringed member when deciding what action to take in dealing with the disciplinary infringement.’, insert:

“The procedural requirements for discipline officers under new Part 1A mirror provisions within existing Part IXA of the Act (which will be replaced by Part 1A). This provision is very similar in substance to existing section 169G of the Act.

Disciplinary infringements under Part IA are not service offences. The disciplinary infringement scheme, and specifically the discipline officer procedure, does not deal with contested infringements. The discipline officer procedure is not an adversarial process - contested matters can only be dealt with by a service tribunal (which includes a summary authority) on a charge of a DFDA service offence, applying adversarial procedures, simplified rules of evidence, and the Criminal Code Act 1995 (Criminal Code) provisions (such as criminal responsibility; burden of proof, defences). 

Discipline officer procedures are provided for in the Bill (see: s.9FA, and additionally by ss.9EB, 9F, 9FB and 9FC). These provisions provide high level procedural requirements that give effect to the disciplinary infringement scheme in dealing with minor breaches of discipline. 

The new s.9FA(1) provides the procedural requirements for a discipline officer or senior discipline officer under Part IA is to be in accordance with any requirements specified by the Chief of the Defence Force. Part IA procedural requirements include the completion of forms such as a disciplinary infringement notice; and the steps to be undertaken by a discipline officer before, during and after dealing with a disciplinary infringement. The Chief of the Defence Force may specify the procedural requirements in a legislative instrument (s.9FA(2)). It is appropriate for the Chief of the Defence Force to determine these procedural requirements in a legislative instrument, noting that as a legislative instrument, the procedural requirements will be subject to scrutiny through tabling and disallowance mechanisms. Any procedural requirements determined by the Chief of the Defence Force are additional to procedural requirements set out in the Act. For example:

·          Section 9E(4) provides that the disciplinary infringement notice must be in accordance with a form approved by the Chief of the Defence Force. The approved disciplinary infringement notice provides certain information, including the right to elect to be dealt with through the infringement scheme (s.9C), the right to call witnesses and present evidence (s.9FA(4)), the range of punishments that may be imposed (s.9FB(2)) or other action that may be taken (s.9FB(1)), the right to complain about the infringement process, and the consequences of the disciplinary infringement.



·          Section 9FA(4) provides that an infringed member is not to be represented before a discipline officer, but is authorised to call witnesses and present any evidence relevant to the exercise of the exercise of the discipline officer’s powers at section 9FB.



·          A discipline officer is required to take into account any evidence or witness information presented by the infringed member when deciding what action to take in dealing with the disciplinary infringement.

Discipline officer procedural matters are appropriate for inclusion in delegated legislation, and as determined by the Chief of the Defence Force as commander of the Australian Defence Force.  Discipline officer procedural requirements will need to be adaptable to diverse and fast-changing environments, including overseas operations, and be fair and efficient; and meet the disciplinary needs of the Defence Force (s.9B).”

Item 1: Section 9J

On page 20, after the sentence: ‘Subsection 9J(4) provides that where a member is subject to a punishment of stoppage of leave, the commanding officer of the member may, if satisfied that it is appropriate to do so, grant leave of absence to the member.’, insert:

“S.9J(1) will provide a rule-making power that may be exercised by the Chief of the Defence Force or a service chief with respect to the consequences of punishments that are to apply  under the disciplinary infringement scheme. S.9J(1) mirrors the provision within existing Part IXA, and is very similar in substance to existing s.169FB of the Act.

Currently, the Chief of the Defence Force issues directions of this sort through the Defence Force Discipline (Consequences of Punishment) Rules 2018 (see: in particular sections 8 to 10 of those Rules), which detail the specific consequences that apply in respect of the respective punishments imposed by a discipline officer (and service tribunals under section 68 of the Act). The Rules cover a wide range of command and administrative arrangements for the specified punishments. For example, in relation to the punishment of restriction of privileges, the Rules include that the member must not leave the unit, establishment or ship in which the punishment is to be served; the member must not be present at any recreation or entertainment in the unit, establishment or ship or consume any alcoholic beverage.

The same consequences apply to a defence member subject to the punishment, irrespective of whether the specified punishment is imposed by the authority of a discipline officer or a service tribunal. Concurrent with the passing of Part IA of the Bill, the Consequences of Punishment Rules will be amended as authorised by the Chief of the Defence Force or a service chief, and updated to include reference to senior discipline officer punishments - the amended rules will commence with effect upon commencement of Part IA of the Bill.

All instruments that may be made by the Chief of the Defence Force pursuant to the rule- making power in s 9J(1) will be legislative instruments and subject to scrutiny through tabling and disallowance mechanisms.

The details of consequences of certain punishments available under the Act are appropriate for inclusion in delegated legislation, as determined by the Chief of the Defence Force as commander of the ADF, noting that they need to be adaptable to diverse and fast-changing environments, including overseas operations, and need to operate in the unique context of a disciplined force subject to command.

Schedule 3 - Service offences

Item 1: Section 35A

On page 30, after the sentence: ‘For more serious performance of duty offences, a charge under section 35 for negligent performance of duty, which carries a maximum punishment of three months’ imprisonment remains available.’, insert:

“S.35A(1)(b) provides that strict liability applies to the element where the member fails to perform the duty or carry out the activity. This will mean all Criminal Code 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 that physical element (s.35A(2)). Additionally, s.35A(3) provides an offence-specific defence of reasonable excuse for the relevant conduct will be available, with the charged member bearing an evidential burden for the defence that is consistent with the Criminal Code s.13.3(3).

The reasonable excuse defence provides an additional defence for a charged member and is not a substitute for the Criminal Code defences. It parallels the reasonable excuse defence available for numerous other service offences in the Act, and enhances fairness for defence members.

There are many circumstances where a defence of reasonable excuse may be raised by the charged member and where the circumstances would not be covered by the general defences in the Criminal Code.

Service tribunals are presided over by military personnel comprising military officers who are not, in most cases, legally trained. The application of a reasonable excuse defence will be considered by the service tribunal, by having regard to the circumstances of the alleged service offence and the military context of the conduct, together with any excuse and its reasonableness (or otherwise), if it is raised. A service tribunal is well able to have regard to an excuse raised by the charged member, and to determine the reasonableness (or otherwise) of the excuse, having regard to the evidence, and including the military context. ‘Reasonable excuse’ is a concept that is well understood by lay commanders and non-commissioned officers applying the Act, noting that it already applies for numerous offences and other provisions in the Act. [3]

Additional factors that support the inclusion of a reasonable excuse defence include: the wide variety of duties and activities that defence members may be called upon to perform, together with the correlating exculpatory circumstances or explanation for non-performance of the duty etc. that might arise, and which fairly can be raised by the charged member and considered as a reasonable excuse defence, in addition to Criminal Code defences.

The charged member would bear an evidential burden in relation to the defence. This is necessary and adapted to the specific circumstances of the s.35A service offence, because 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. Consequently, it would be significantly more difficult for the prosecution to disprove than for the charged member to establish the matter. For example, circumstances peculiarly within the knowledge of the charged member might include the non-performance of a duty or carrying out of an activity, where the member claimed not being confident to perform the duty etc. as the reason for non-performance. An evidential burden of proof requires the defendant (charged member) to adduce, or point to evidence, that suggests a reasonable possibility that a matter exists or does not exist. It is then a matter for the prosecution to disprove the defence.”

Item 2: Section 48B

On page 32, after the sentence: ‘A defence is provided for in section 48B for circumstances where it is not reasonably practicable for the defence member to comply with the removal order.’, insert:

“S.48B(2) provides an offence-specific defence of not reasonably practicable for the (charged member) to comply with the removal order . The defence is offence-specific, and is not addressed or covered by the Criminal Code defences.

The defence of ‘not reasonably practicable to comply with the removal order’ would apply for consideration by a service tribunal in circumstances where, for example, a defence member takes reasonable steps to comply with the removal order by requesting a social media service provider to remove or delete the cyber-bullying social media or relevant electronic service material, and the service provider is unable or unwilling to comply with the member’s request to remove or delete the social media etc. material, or where in operational circumstances a member is unable to comply with the removal order. Where relevant, the military context of a claimed defence of ‘not reasonably practical to comply with the removal order’ would be taken into account by the service tribunal.

The charged member bears an evidential burden in relation to the defence, noting that the circumstances that make it impracticable to comply with a removal order will frequently be peculiarly within the member’s knowledge, such that it will generally be significantly more difficult for the prosecution to disprove than for the charged member to establish the matter. An evidential burden of proof requires the defendant (charged member) to adduce, or point to evidence, that suggests a reasonable possibility that a matter exists or does not exist. It is then a matter for the prosecution to disprove the defence.”

 




[1] [2020] HCA 31 (per Kiefel CJ; Bell and Keane JJ)

[2] Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 314, 324, 325 and 356 - cited with approval in Pte R v Cowen (per Kiefel CJ; Bell and Keane JJ)

[3] See: Defence Force Discipline Act 1982 ss.15; 15A-G; 16; 16A; 17; 23;28; 32; 40C; 43; 45; 46; 48; 50; 53; 54A; 60; and 101QA; and see generally new Part IA s.9E(1); s.9FB(1)(c) and s.9G(2)