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Foreign Affairs, Defence and Trade Legislation Committee—Defence Legislation Amendment (Discipline Reform) Bill 2021 [Provisions]—Report, dated October 2021


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October 2021

The Senate

Foreign Affairs, Defence and Trade Legislation Committee

Defence Legislation Amendment (Discipline Reform) Bill 2021 [provisions]

© Commonwealth of Australia 2021

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iii

Committee Members

Chair Senator the Hon Eric Abetz LP, TAS

Deputy Chair Senator Kimberley Kitching ALP, VIC

Members Senator Tim Ayres ALP, NSW

Senator the Hon David Fawcett LP, SA

Senator the Hon Concetta Fierravanti-Wells LP, NSW

Senator Jacqui Lambie JLN, TAS

Secretariat Lyn Beverley, Committee Secretary Christopher Sautelle, Principal Research Officer Emma Wannell, Acting Senior Research Officer Margaret Cahill, Research Officer Shannon Ross, Administrative Officer

Committee Webpage: http://www.aph.gov.au/senate_fadt

PO Box 6100 Phone: + 61 2 6277 3535

Parliament House Fax: + 61 2 6277 5818

Canberra ACT 2600 Email: fadt.sen@aph.gov.au

Australia

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Table of Contents

Committee Members ........................................................................................................................ iii

Chapter 1—Introduction .................................................................................................................... 1

Referral .................................................................................................................................................. 1

Conduct of the inquiry ........................................................................................................................ 1

Background to the bill ......................................................................................................................... 1

Purpose of the bill and key provisions ............................................................................................. 4

Financial impact ................................................................................................................................. 10

Statement of compatibility with human rights .............................................................................. 10

Consideration by other committees ................................................................................................ 10

Structure of the report ....................................................................................................................... 12

Chapter 2—Key issues...................................................................................................................... 13

Introduction ........................................................................................................................................ 13

General views on the bill .................................................................................................................. 13

Expansion of the disciplinary infringements scheme ................................................................... 14

Summary authorities ......................................................................................................................... 18

New service offences ......................................................................................................................... 19

Committee view ................................................................................................................................. 25

Appendix 1—Submissions, answers to questions on notice and correspondence ............... 27

1

Chapter 1 Introduction

Referral 1.1 On 12 August 2021, the Defence Legislation Amendment (Discipline Reform) Bill 2021 (the bill) was introduced into the House of Representatives by the Minister for Veterans' Affairs and Minister for Defence Personnel, the Hon

Andrew Gee MP.1

1.2 On 26 August 2021, through the Selection of Bills Committee Report No. 10 of 2021, the provisions of the bill were referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the Committee) for inquiry and report by 14 October 2021.2

Conduct of the inquiry 1.3 The Committee advertised the inquiry on its website, calling for submissions by 17 September 2021. The Committee also wrote directly to a range of organisations, statutory office holders and individuals inviting them to make

written submissions.

1.4 The Committee received eight submissions to the inquiry which are listed at Appendix 1. The Committee decided to prepare its report on the basis of submissions received and available information. The Committee thanks those who made submissions.

Background to the bill

2017 review of the Summary Discipline System 1.5 On 23 November 2016 the then Chief of the Defence Force (CDF) raised his concerns, and those of the Service Chiefs, that the summary discipline system3 (SDS) 'had become overly complex and difficult to use, unresponsive to

command, characterised by delay and costly to operate'.4 An internal review of the SDS was commissioned by the CDF and the final report, Review of the Summary Discipline System 2017 (the review), was provided the following year.5

1 House of Representatives, Votes and Proceedings, No. 136, 12 August 2021, p. 2133.

2 Journals of the Senate, No. 117, 26 August 2021, pp. 4000-4002.

3 The bill's Explanatory Memorandum (EM) notes that punishments available through a summary

authority as established under the Defence Force Discipline Act 1982 is 'also described as the summary discipline system...', EM, [p. 1].

4 Review of the Summary Discipline System 2017, p. 15

5 Review of the Summary Discipline System 2017, pp. 15-16.

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1.6 The review identified a number of earlier inquiries into various aspects of the military justice system that it had regard to in its consideration, and noted that '[m]any of the issues, command concerns and problems identified by this Review concerning the SDS have been raised in previous reviews dating back as far as…1989'.6

1.7 The final report of the review found that:

…the current SDS is overly complex, difficult to use, unresponsive and characterised, because of its complexity, by excessive delay. As a consequence of the complexity of dealing with military discipline matters, many commanders across each of the Services have little confidence in using the SDS for its intended purpose of maintaining or enforcing service discipline.7

1.8 The review identified three 'key findings':

(a) Day-to-day command management and oversight of the SDS is essential. This responsibility needs to extend downwards from commanders at all levels within the ADF.

(b) The application of criminal justice principles, particularly in relation to investigation, rules of evidence and standard of proof, together with the adversarial nature of the conduct of disciplinary proceedings by non-legally trained members of the ADF is overly complex and [is] not conducive to an effective and efficient summary discipline regime. The result is that often the military disciplinary effect of summary proceedings is lost because of complexity and excessive delay. It is neither timely nor responsive to command, nor are the delays fair to those impacted. Despite the introduction of section 146A into the Defence Force Discipline Act 1982 (DFDA) on 20 September 2008, intended to lessen the overly legalistic and complex summary procedures, many of the issues remain. (c) There is a lack of coordinated, ongoing and timely training and

education to support command, and the wider Defence Force community, in understanding and using the SDS. The recommended SDS and enhanced Discipline Officer regime will lessen the complexity of the training burden, but will not negate the requirement for consistency and currency of education and training for participants in the SDS, in particular for the Services pre-Command courses.8

1.9 The review made recommendations to reform the discipline infringement scheme and summary discipline system; and the bill seeks to give effect to the substantive recommendations of the review.9

6 Review of the Summary Discipline System 2017, p. 23.

7 Review of the Summary Discipline System 2017, p. 7.

8 Review of the Summary Discipline System 2017, p. 7.

9 Explanatory Memorandum, [p. 1].

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1.10 In the bill's second reading speech, the Minister also pointed to past reviews which had identified issues with the operation of the summary discipline system under the Defence Force Discipline Act 1982 (DFDA).10 In announcing the proposed amendments under the bill, the Minister for Veterans' Affairs and Defence Personnel, noted that they would 'progress long considered reforms', advising that:

Numerous internal reviews at Defence have found that aspects of the current military discipline system are cumbersome in dealing with minor matters…

This is not surprising given the existing approach dates back forty years and is based on British military discipline law, introduced with the Defence Force Discipline Act 1982.

Reform is required to modernise procedures that predate modern warfare, current technologies and tactical requirements.11

1.11 The Department of Defence further advised that the DFDA came into effect in 198512 and:

…has now had the benefit of more than 35 years of operation, and significantly, on a wide range of operational deployments. It has been reviewed extensively, but incomplete and overlapping implementation of recommended changes has reduced the coherency of the discipline system.13

Current military discipline framework 1.12 The DFDA provides a system for maintaining and enforcing military discipline, and all Australian Defence Force (ADF) members are subject to it.14 The bill's Explanatory Memorandum (EM) outlines the function of military

discipline in the ADF:

The military discipline system is essential to enable the Australian Defence Force…to maintain good order and discipline, and to enable commanders to deal with matters that pertain directly to ADF discipline, morale, efficiency, effectiveness and operational readiness. Breaches of military discipline must be dealt with quickly and, sometimes, more severely than would be the case if a civilian engaged in the same conduct.15

10 The Hon Andrew Gee MP, Minister for Defence Personnel and Veterans' Affairs, Second reading

speech, House of Representatives Hansard, 12 August 2021, p. 2.

11 The Hon Andrew Gee MP, Minister for Defence Personnel and Veterans' Affairs, 'Significant

reforms to Australia's military discipline system', Media release, 12 August 2021.

12 The DFDA received Royal Assent on 31 December 1982. Parts I (ss. 1-9) and XI (ss. 179-188):

commenced at Royal Assent; remainder commenced 3 July 1985 (see Gazette 1985, No. S255), DFDA, Endnote 3, Legislation history.

13 Department of Defence, Submission 5, p. 2.

14 See https://www.defence.gov.au/mjs/mjs.asp (accessed 2 September 2021).

15 EM, [p. 1].

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1.13 Defence advised that:

Commanders at all levels have a command responsibility to maintain and enforce discipline and need to have confidence in their use of [the] discipline system. Failure to maintain discipline may put the lives of others at risk, erode morale and adversely impact unit cohesion and fighting capability.16

1.14 The DFDA establishes a three tiered system of discipline authorities to deal with breaches of discipline:

1. Discipline Officer: deal with certain minor disciplinary breaches by way of infringement conducted on a non-adversarial basis applying procedural fairness. A member must voluntarily elect to be dealt with by a Discipline Officer, and accordingly this system only relates to circumstances where a member admits to the infringement. The range of punishments a Discipline Officer can impose is limited and includes a small fine or minor punishments such as extra duties and stoppage of leave.

2. Summary authority service tribunal: deal with service offences, applying principles of criminal responsibility and are adversarial in nature, conducted at unit level by non-legally qualified personnel. There are three

types of summary authority; subordinate summary authority, commanding officer and superior summary authority. The maximum punishment that can be imposed depends upon the type of summary authority and the rank of the offender and includes detention, reduction in rank and a fine.

3. Superior service tribunal: generally reserved for the trial of serious service offences by court martial (General or Restricted) or Defence Force magistrate. The maximum punishment a superior service tribunal can impose depends upon the type of tribunal and the rank of the offender and can include severe punishments such as imprisonment and dismissal from the Defence Force.17

Purpose of the bill and key provisions 1.15 As noted above, following a number of reviews of the military discipline system, the government introduced the bill to amend the DFDA to 'modernise and streamline disciplinary matters in the Australian Defence Force.'18

1.16 Defence advised the committee that:

The aim of the disciplinary reforms to the DFDA proposed in the Bill is to make the discipline system easier to use, particularly whilst deployed on operations, by allowing for more minor disciplinary issues to be managed quickly and simply under the disciplinary infringement scheme by a Discipline Officer or Senior Discipline Officer where appropriate, while

16 Department of Defence, Submission 5, pp. 4-5.

17 Department of Defence, Submission 5, p. 2.

18 The Hon Andrew Gee MP, Minister for Defence Personnel and Veterans' Affairs, 'Significant

reforms to Australia's military discipline system', Media release, 12 August 2021.

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including additional fairness safeguards; re-align the jurisdiction and application of punishments at the commanding officer and superior summary authority level; and deter behaviour inconsistent with the Defence Values of ‘Service, Courage, Respect, Integrity and Excellence’.19

1.17 Defence advised why the changes in the Bill are considered essential:

The current adversarial court-like summary discipline system is disproportionately complex in dealing with minor disciplinary breaches where the [breach] of discipline is admitted. Senior non-commissioned

officers and junior officers remain reluctant to use it.

The adversarial summary tribunal proceedings remain important and are appropriate for ensuring fairness and justice to members in more serious disciplinary matters or where matters are contested, but are ill suited to dealing with minor disciplinary breaches.

The nature of modern operations means that the DFDA has not always met the discipline needs of deployed units, particularly for those operating at great distances away from the support of formation headquarters.

Defence considers it is now time to make changes to the DFDA to enable a broader range of minor breaches of military discipline to be dealt [with] more simply and quickly and to ensure that the purpose of the DFDA to enforce and maintain discipline meets the requirements of the Australian Defence Force now and into the future.20

1.18 The bill comprises three schedules to amend the DFDA in regard to disciplinary infringements, summary authorities and service offences. Schedule 4 of the bill deals with contingent amendments.

Schedule 1 - Disciplinary infringements 1.19 Schedule 1 of the bill includes at item 14 the repeal of Part IXA of the DFDA to insert a new disciplinary infringement framework into the Act under new Part IA as a means for dealing with minor service discipline which has the stated

objective as being both fair and efficient; and meeting the disciplinary needs of the Defence Force.21

1.20 The EM advises that this reform will 'expand the operation of the disciplinary infringement scheme so that it can be used in more situations and thereby 'enhanc[ing] its effectiveness in dealing with minor breaches of military discipline'.22 The Minister noted that the reformed scheme will enable:

19 Department of Defence, Submission 5, p. 6.

20 Department of Defence, Submission 5, p. 5.

21 See new section 9B.

22 EM, [p. 1]. The EM notes that 'Breaches of military discipline by way of disciplinary infringement

are generally described as the 'infringement scheme'. [p. 9].

6

…a greater range of minor breaches of military discipline to be dealt with more quickly and fairly, and with less formality…than by the more complex and adversarial service tribunal processes.23

1.21 The EM notes that a disciplinary infringement scheme was introduced into the DFDA within Part IXA in 1995 and that:

…[s]ince its inception, it has been highly effective in dealing with minor breaches of discipline. The Inspector-General of the ADF…has consistently reported that the disciplinary infringement scheme is trusted by defence members as a fair and effective means of dealing with minor breaches of military discipline.24

1.22 The reformed infringement scheme proposed in the bill establishes a new senior discipline officer, in addition to a discipline officer, to deal with disciplinary infringements. The EM notes that '[t]he senior discipline officer replaces the subordinate summary authority position [see Schedule 2 below] and creates a two-tier infringement scheme.'25

1.23 The senior discipline officer will have authority to deal with a broader range of disciplinary infringements and has the authority to impose a higher level of punishment than the discipline officer.26

1.24 The categories of minor disciplinary infringement provisions and disciplinary infringement provisions within the jurisdiction of senior discipline officers are set out under Division 3 of new Part IA; and are separate to service offences contained in Part III of the DFDA.

Schedule 2 - Summary authorities 1.25 Part 1 of Schedule 2 of the bill provides for the removal of the lowest level of summary authority, the subordinate summary authority. The EM advises that '[t]ogether with the changes to the disciplinary infringement scheme, this will

result in a reformed, and far simpler approach to minor disciplinary matters.'27

1.26 The EM notes that amendments under Part 2 of this schedule will address:

…a number of anomalies in the Act with regard to the respective jurisdiction of discipline officers and summary authorities, and between the different types of summary authority, in terms of the type of breach of military discipline, the rank of defence members with which each can deal, and the powers and punishments available to each level of authority.28

23 The Hon Andrew Gee MP, Minister for Defence Personnel and Veterans' Affairs, Second reading

speech, House of Representatives Hansard, 12 August 2021, p. 3.

24 EM, [p. 1].

25 EM, [p. 10].

26 EM, [p. 10].

27 EM, [p. 2].

28 EM, [p. 2].

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1.27 The Minister advised that the proposed amendments in Schedule 2 will:

…[re-align] the rank and punishment jurisdiction of summary authorities, ensuring a logical progression in terms of the rank of the accused person, the seriousness of the breach of military discipline, the level of the punishment that may be imposed and the seniority of the summary authority.29

1.28 Defence explained the issues that exist within the current discipline authority structure:

Currently the most junior discipline authority, the Discipline Officer, is able to deal with alleged wrong-doing by a much broader rank range, from Private to Captain (Army equivalents), than the more senior subordinate summary authority, who can only deal with the ranks of Private to Corporal (Army equivalents). In creating the position of a Senior Discipline Officer in lieu of the subordinate summary authority, this Bill will align the ranks each can deal with from Private to Captain.

Inequities persist at the upper scale of summary service tribunals. The most senior summary authority, a superior summary authority, can only deal with the ranks of Warrant Officer Class 2 up to the rank of Major General (Army equivalents), and has less power of punishment than the intermediate commanding officer level; this gives the impression of more senior officers being treated more favourably than junior offenders. This is both iniquitous and opaque. The Bill addresses this by providing for the superior summary authority to deal with all ranks up to Major General (Army equivalents) and align the punishments that apply to those of a commanding officer; new punishments have been provided where they exceed the rank jurisdiction of a commanding officer.30

Schedule 3 -Service offences 1.29 Part 1 of Schedule 3 of the bill introduces the following new service offences into the DFDA: failure to perform duty or carry out activity; cyber-bullying; and failure to notify change in circumstances (concerning the receipt of a

benefit or allowance). This part also deals with the failure to comply with a removal order31 following conviction of a cyber-bullying offence.32

Failure to perform duty or carry out activity 1.30 Item 1 of this schedule inserts an additional offence relating to the performance of duty, that is, failure to perform duty or carry out activity. Strict liability will apply to this offence. The EM notes that this new offence is intended:

29 The Hon Andrew Gee MP, Minister for Defence Personnel and Veterans' Affairs, Second reading

speech, House of Representatives Hansard, 12 August 2021, p. 3.

30 Department of Defence, Submission 5, p. 7.

31 This refers to an order to take reasonable action to remove, retract, recover, delete or destroy

identified material on a social media service or relevant electronic service. See paragraph 1.35.

32 EM, [p. 2].

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to deal with low level non-performance of duty offences that do not meet the higher standard of criminal negligence which might warrant prosecution by a charge of negligence.

The fault element of recklessness will apply to the physical element at paragraph 35A(1)(a) pursuant to the Criminal Code, and strict liability will apply to the conduct within paragraph 35A(1)(b). This will mean all Criminal Code defences will be available, together with the defence of mistake of fact under section 9.2 of the Criminal Code in relation to the respective physical element.33

1.31 The proposed new offence within subsection 35A(1) will not apply if the member has a reasonable excuse, 'with the charged member bearing an evidential burden consistent with the Criminal Code (see subsection 13.3(3)).'34 The EM further notes:

Having regard to the unique nature of military service together with the breadth of duties and activities and including the requirements of the ADF for the performance of a duty, the application of strict liability for the conduct together with all Criminal Code defences including mistake of fact and additionally, a reasonable excuse statutory defence are appropriate and proportionate. The maximum punishment of dismissal from the ADF is proportionate and appropriate.35

Cyber-bullying offences 1.32 Item 2 of the Schedule inserts a new class of cyber-bullying offences to 'contemporise offences of this nature within the ADF.'36 New section 48A will make it an offence for a defence member to use a social media service or

relevant electronic service in a way that a reasonable person would regard as offensive or threatening, intimidating, harassing or humiliating another; with the maximum punishment for this offence being imprisonment for 2 years.

1.33 The EM notes that bullying conduct using social media services and electronic mediums is as common place in the Defence Force as it is in broader society. The harmful impact of cyber-bullying and its impact on military discipline was also explained:

Cyber-bullying by a member in any form, is conduct that is corrosive to good order and discipline; it is contrary to the Defence Value of respect towards others and has a negative impact on the morale, operational effectiveness, and reputation of the ADF. Cyber-bullying conduct is fundamentally at odds with the requirement that members value others and treat them with dignity.37

33 EM, [p. 28].

34 EM, [p. 28].

35 EM, [p. 28].

36 EM, [p. 30].

37 EM, [p. 29].

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1.34 The EM further notes that new 'section 48A differs from similar civilian criminal legislation in that there is no requirement for the cyber-bullying conduct to be 'serious'':

Section 48A provides for the objective test that a reasonable person would regard the conduct as offensive, or as threatening, intimidating, harassing or humiliating another person. The threshold distinction is important as the availability of this service offence supports the maintenance and enforcement of discipline through deterrence of such conduct by members, which is distinct from the civilian criminal law provisions dealing with criminal behaviour.

Unlike civilian employment, commanders in the ADF are responsible for ensuring the discipline of members under their command. Additionally, commanders are responsible for the safety, health and well-being of people under their command, 24 hours a day, seven days a week. Instances of cyber-bullying within the ADF need to be dealt with quickly by commanders to minimise the impact not only on individuals, but also to the morale and operational effectiveness of the ADF more generally. 38

1.35 Item 5 of the Schedule 3 inserts new section 84A into the Act to provide for a service tribunal to make a removal order following conviction of a person for a cyber-bulling offence under subsection 48A(1) where the offence involved providing material on a social media service or relevant electronic service. This would require that reasonable action is taken to remove, retract, recover, delete or destroy identified material on a social media service or relevant electronic service. The EM notes:

A removal order provision within the Act is appropriate given that offensive, threatening, intimidating, harassing or humiliating material of another person can exist within social media or an electronic service and be accessible by others on an on-going basis, thereby aggravating the harm caused by the cyber-bullying.39

1.36 Item 2 of the schedule also inserts new section 48B where a defence member will commit an offence for failure to comply with a removal order if it is reasonably practicable to do so; and carries a maximum punishment of imprisonment for two years.

Failure to comply with requirement to notify change in circumstances 1.37 Item 3 of Schedule 3 creates a new service offence where a recipient of a benefit fails to comply with a requirement to notify a change in circumstances where those circumstances relate to the entitlement to the benefit. Strict liability will

also apply to this offence. The EM notes that:

….the new section 56A is necessarily a strict liability offence, because the offence would otherwise be too onerous to enforce and would thus not operate sufficiently as a deterrent for such conduct.

38 EM, [p. 29].

39 EM, [p. 30].

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The fault element of recklessness will apply to the elements at subparagraphs (1)(a) and (b) of section 56A. Strict liability will apply to the failure to comply with the requirement to notify the change in circumstances relating to the recipient’s entitlement to the benefit at paragraph 56A (1)(c).40

Financial impact 1.38 The EM states that 'there will be no financial impact as a consequence of the Bill.'41

Statement of compatibility with human rights 1.39 The EM includes a statement of compatibility with human rights which advises that the bill 'is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011.'42

Consideration by other committees 1.40 The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee) reported on the bill raising the issues set out below.

Senate Standing Committee for the Scrutiny of Bills 1.41 The Scrutiny Committee considered the legislation in its Scrutiny Digest 13 of 2021, raising the following issues:

 significant matters in delegated legislation;  reverse evidential burden; and  broad scope of offence provisions.43

1.42 The Scrutiny Committee requested more detailed information from the Minister on each of these points.44

Parliamentary Joint Committee on Human Rights 1.43 The Parliamentary Joint Committee on Human Rights (Human Rights Committee) considered the legislation in its Human rights scrutiny report - Report 10 of 2021 and made comment on the new service offence related to the

use of social media and electronic services.

40 EM, [p. 30].

41 EM, [p. 2].

42 EM, [p. 3].

43 See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2021, 25 August 2021,

pp. 4-7.

44 See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2021, 25 August 2021,

pp. 4-7.

11

1.44 The Human Rights Committee considered that this measure in the bill:

…engages and limits the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, including expression that may be regarded as offensive. This right may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

The committee considers that the measure seeks to achieve the legitimate objective of maintaining or enforcing military service discipline, and the proposed offence may be effective to achieve this. However, questions remain as to whether the measure is proportionate.45

1.45 The Human Rights Committee advised that it had not yet formed a concluded view on this measure and requested further information from the Minister in order to assess the human rights implications.46

Minister's response 1.46 On 7 October 2021 the Hon Andrew Gee MP, Minister of Defence Personnel, wrote to the committee indicating that he had written to the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on

Human Rights providing responses to matters identified by the committees in relation to the bill. The minister noted that an issue identified by both committees relates to the proposed new service offence of cyber-bullying at s.48A in Schedule 3 of the bill. Both committees sought advice on the term 'offensive' which forms an element of the proposed cyber-bullying provision.47

1.47 In response the minister advised that he considers the bill would benefit from including interpretive guidance on the use of a social media service, etc. in the way that a reasonable person would regard as 'offensive'. The minister has instructed Defence to:

proceed with instructions to the Office of Parliamentary Counsel to draft an interpretive clause in the bill along similar lines to s.8 of the Online Safety Act 2021 and s.473.4 of the Criminal Code (which deals with 'offensive' use of social media and telecommunications services respectively), and which could be suitably modified to address the meaning of 'offensive' social media, etc. for the purpose of the proposed s. 48A in the Bill…48

45 Parliamentary Joint Committee on Human Rights, Human rights scrutiny report - Report 10 of 2021,

25 August 2021, p. 13.

46 Parliamentary Joint Committee on Human Rights, Human rights scrutiny report - Report 10 of 2021,

25 August 2021, p. 13.

47 Correspondence from the Hon Andrew Gee MP, Minister of Defence Personnel to Senator the Hon

Eric Abetz, dated 7 October 2021.

48 Correspondence from the Hon Andrew Gee MP, Minister of Defence Personnel to Senator the Hon

Eric Abetz, dated 7 October 2021.

12

Structure of the report 1.48 Chapter 2 provides an overview of issues raised in evidence and contains the Committee's view and recommendation.

13

Chapter 2 Key issues

Introduction 2.1 This chapter examines the key issues raised in submissions in relation to the bill. Submissions largely agreed on the need for reform of the Defence Force Discipline Act 1982 (DFDA) and endorsed the intent of the bill to improve the

administration of discipline for those who serve in the Defence Force. While submitters broadly supported the proposed amendments, some submissions raised concerns about certain aspects of the proposed reform of the disciplinary infringements scheme and the new service offences. The chapter concludes with the Committee's view and recommendation.

General views on the bill 2.2 Submitters generally provided strong support for the overall intent and objectives of the bill.

2.3 The Department of Defence advised that:

…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 [DFDA]. A core objective of these changes is to reduce risks to the mental health and well-being of all individuals [affected] by their involvement in a disciplinary event.1

2.4 The Inspector-General of the Australian Defence Force (IGADF), Mr James Gaynor CSC, advised the Committee that:

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 [DFDA] will enhance the overall fairness and efficiency of discipline in the Australian Defence Force.2

2.5 The Centre for Military and Security Law (CMSL), Australian National University College of Law, described the proposed reforms as 'a balanced and measured response to legitimate criticisms that have been made about the operation of the DFDA as the 21st Century rolls on' and gave broad support for the proposed amendments, noting that:

Each of these reforms are aimed at improving the timeliness, efficiency and effectiveness of the summary discipline system while preserving the

1 Department of Defence, Submission 5, p. 1.

2 Inspector-General of the Australian Defence Force, Submission 7, p. 1.

14

protections and rights that exist for a defence member who is accused of breaching service discipline.'3

2.6 The Defence Force Welfare Association (DFWA) commented on the importance of breaches in military justice being dealt with in a timely manner and agreed that the DFDA needed to be updated to reduce its complexity, noting that the current military discipline system was 'cumbersome' and 'difficult to understand' resulting in 'unnecessary delays in dispensing justice.'4 The DFWA was broadly supportive of the proposed amendments of the bill which would 'adequately [balance] the need to effectively maintain discipline while protecting the rights and welfare of Defence Members.'5

2.7 As a former long serving member of the Australian Army, Mr Donald Spinks AM noted the long delays in dealing with minor discipline breaches under the current system which he saw as 'no longer fit for purpose;' and welcomed the 'significant improvements' in the bill to:

…allow commanders to more simply and quickly address poor behaviour, and create opportunity for early intervention to better support the people in our Defence Force, enabling them to continue as a positive contributor to their Service.6

2.8 The Australia Defence Association (ADA) observed that as ADF personnel undertake an increasing range of domestic and overseas activities, '[t]he ADF disciplinary code needs periodic amendment to keep up.'7 The ADA described the bill as 'a common sense updating of the ADF's disciplinary code' and concluded that it could 'be safely passed in its present form.'8

Expansion of the disciplinary infringements scheme 2.9 A number of submitters noted that the existing disciplinary infringement scheme, introduced in 1995, had been well received and was extensively used by ADF command and members,9 and widely trusted;10 and therefore

welcomed its expansion. The proposed enhancements to the scheme, including

3 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 5.

4 Defence Force Welfare Association, Submission 4, p. 1.

5 Defence Force Welfare Association, Submission 4, p. 3.

6 Mr Don Spinks AM, Submission 1, p. 1.

7 Australia Defence Association, Submission 6, p. 2.

8 Australia Defence Association, Submission 6, p. 2.

9 See Centre for Military and Security Law, ANU College of Law, Submission 3, p. 2.

10 See Mr Don Spinks AM, Submission 1, p. 2; Inspector-General of the Australian Defence Force,

Submission 7, p. 1.

15

a wider range of minor breaches able to be dealt with and the introduction of a new senior discipline officer position, were supported by most submitters.11

2.10 The Defence Force Welfare Association (DFWA) stated that the reforms would 'significantly improve the efficiency and effectiveness of the Discipline System within Units.'12 While Mr Spinks strongly commended the totality of the proposed changes.13

2.11 Defence advised that replacing the lowest level subordinate summary authority with a senior discipline officer with 'broadly the same punishment authority as the subordinate summary authority with an increased rank range up to Captain (Army equivalents)' would provide:

The ability to deal with a broader range of minor breaches of discipline as disciplinary infringements…[reducing] the stress on Australian Defence Force members who admit the breach of discipline as they will not be subjected to a formal summary hearing and will have their matter finalised within two to three days.14

2.12 The IGADF advised that:

My office conducts military justice performance audits of Australian Defence Force units and we regularly hear from personnel that they trust the existing Discipline Infringement Scheme. I anticipate the revised Scheme will receive similar endorsement by those who are directly affected by it. 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.15

Safeguards 2.13 Raising concerns about potential misuse of the disciplinary infringement scheme, GAP Veteran and Legal Services urged the Committee to ensure adequate safeguards will be in place under the reforms proposed in the bill.16

2.14 Defence noted the retention of current safeguards within the discipline infringement scheme, including the requirement that the infringed member make a positive election to be dealt with under the scheme, and that such an election is an admission to committing the disciplinary breach. The additional safeguards in the bill include:

11 See Centre for Military and Security Law, ANU College of Law, Submission 3, p. 2; Mr Don Spinks

AM, Submission 1, p. 2; Defence Force Welfare Association, Submission 4, p. 2; Inspector-General of the Australian Defence Force, Submission 7, p. 1.

12 Defence Force Welfare Association, Submission 4, p. 2.

13 Mr Don Spinks AM, Submission 1, p. 2.

14 Department of Defence, Submission 5, p. 6.

15 Inspector-General of the Australian Defence Force, Submission 7, p. 1.

16 GAP Veteran and Legal Services, Submission 8, p. 4.

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 the requirement for any reasonable excuse to be considered before issuing a disciplinary infringement notice;  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;  the requirements for a discipline officer to inquire if the infringed member has a reasonable excuse for committing the breach of discipline; and  the requirement for a commanding officer to review punishments imposed

by a senior discipline officer.17

2.15 Other submitters also commented on the retention of current safeguards as well as the added protections under the enhanced scheme. The IGADF commented that:

Currently, the most common lapses of behaviour are beyond a Discipline Officer’s jurisdiction and can only be dealt with by a Subordinate Summary Authority, or higher. The proposed changes will permit such common lapses to be dealt with by Discipline Officers under the Infringement Scheme unless the alleged wrongdoer elects otherwise. This should enhance timeliness without compromising overall fairness. Indeed, in one important area, the checks and balances in the Defence Force Discipline Act will be enhanced. An additional safeguard will require commanding officers to review Senior Discipline Officer proceedings. This should ensure consistency and fairness of discipline outcomes.18

2.16 The ADA advised that:

Aspects of the DFDA that introduced court-like proceedings down to the lowest level of hearings have been simplified progressively since 1985, particularly from 1995, with no loss to the rights of those charged or the balances of fair play and justice concerned. The tweaking of the disciplinary infringement scheme proposed in Schedule 1 of the Bill is part of that process.19

2.17 Mr Spinks noted that there was a:

…strong emphasis on not only ensuring that existing safeguards are retained, but also that they are significantly reinforced. This approach is at the heart of delivering a military discipline system that I know our soldiers will view as fair, trusted and one that they believe in.20

17 See Department of Defence, Submission 5, pp. 6-7. See also Department of Defence, Answers to

questions on notice, received 8 October 2021.

18 Inspector-General of the Australian Defence Force, Submission 7, p. 1.

19 Australia Defence Association, Submission 6, p. 2.

20 Mr Don Spinks AM, Submission 1, p. 1.

17

2.18 The DFWA concurred, advising that 'the protections included in the bill sufficiently and appropriately protect the rights and welfare of Defence Members'.21

2.19 The Centre for Military and Security Law, ANU College of Law, described the safeguards in the bill as 'appropriate', noting that under the scheme 'a person who wishes to contest the conduct that has been alleged can do so, using the summary tribunal system or the superior tribunal system...'22

Disciplinary infringements records 2.20 GAP Veteran and Legal Services raised concerns about the bill's removal of the existing requirement for infringement records to be destroyed after 12 months; and the proposed new section 9JB which provides for the Chief of the Defence

Force, by legislative instrument, to make rules in relation to record keeping of infringement records.23

2.21 In relation to new section 9JB, the bill's Statement of Compatibility with Human Rights advised:

The Defence Force as a national institution is accountable and transparent, while reflecting contemporary community standards and attitudes. This includes the requirement for the Defence Force to maintain appropriate records relating to the service history and management of its personnel. Consistent with these principles, 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.

The Chief of the Defence Force legislative instrument that allows for the use, dissemination, storage and protection of personal information of discipline infringement records, will have regard to the necessity, reasonableness and proportionality of those measures and the implementation of appropriate safeguards to ensure the instrument constitute[s] a permissible limitation on the right to privacy. An instrument that may be made by the Chief of the Defence Force will specify: how the personal information of a defence member is collected and stored; the

21 Defence Force Welfare Association, Submission 4, p. 3.

22 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 2.

23 GAP Veteran and Legal Services, Submission 8, pp. 3-4.

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persons to whom it can be disclosed; and the conditions that need to be satisfied before any disclosure occurs, in a way that reflects the sensitive nature of the information.24

2.22 Defence responded:

The Bill provides that the Chief of the Defence Force may, by legislative instrument, make rules for, or in relation to the keeping of disciplinary infringement records and the retention, use or destruction of disciplinary records (currently DFDA s.169H requires the destruction of disciplinary infringement records after 12 months). The legislative instrument as proposed in the Bill would be a disallowable instrument presented for Parliamentary scrutiny and accompanied by an Explanatory Memorandum registered on the Federal Register of Legislative Instruments.25

Summary authorities 2.23 Submitters also broadly supported the proposed changes under Schedule 2 to remove the subordinate summary authority level (which would effectively be replaced by the senior discipline officer as noted above); and to re-align the

structure of the summary discipline authorities. Defence described the amendments in the bill as instituting:

…a more logical structure and progression between the new two tiered disciplinary infringement scheme and the summary authority service tribunals, based on the seriousness of the disciplinary breach, available punishments, and rank of individual.26

2.24 Mr Spinks commented that the restructure of summary authorities under the bill delivers a military discipline system that is 'fair in terms of the rank of the accused member, the seriousness of the breach of military discipline, the level of punishment that may be imposed and the seniority of the summary authority'.27

2.25 The CMSL described the removal of the subordinate summary authority as proposed in the bill as a 'logical consequence of the introduction of the senior discipline officer...and part of the DFDA's evolution to ensure it remains fit for purpose in the modern ADF'. The other changes in Schedule 2 were considered 'necessary and logical changes.'28

2.26 The DFWA noted that:

24 EM, [p. 6].

25 Department of Defence, Answers to questions on notice, received 8 October 2021.

26 Department of Defence, Submission 5, p. 7.

27 Mr Don Spinks AM, Submission 1, p. 2.

28 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 3.

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Under the existing scheme, the Subordinate Summary Authority is procedurally cumbersome, often with significant delays between the offence and dealing [with it], and imposes a significant burden on a unit.29

2.27 The ADA advised that the removal of the subordinate summary authorities 'makes sense', but suggested that:

It may need review down the track to check that the advantages have outweighed the disadvantages. Whatever the faults of such hearings, they do enjoy considerable confidence among junior and non-commissioned ranks. Particularly as an effective aid to individual maturation, and team-building, in circumstances where often young personnel live, work and socialise together much more than in other Australian workforces.30

New service offences 2.28 Submitters generally welcomed the inclusion of the new service offences under Schedule 3 of the bill. However, some concerns were raised about some aspects of these amendments and these are discussed further below.

2.29 The CMSL described the proposed new services offences as 'welcome changes to the DFDA', advising that they:

…represent further necessary reform to the military discipline system brought about by a combination of changes in behaviour by ADF members, technological advancements and experience arising out of trying to prosecute some recent offending.

…Each of these proposed amendments seeks to deal with aspects of behaviour that have occurred in the ADF reasonably regularly, and for which successful action under the DFDA has not always been achieved. Their inclusion as specific offences under the DFDA should help to enforce and maintain service discipline by making the consequences of such behaviour more readily able to be prosecuted, while adequate safeguards for a person suspected of committing one of these offences are also maintained.31

2.30 In regard to the new service offences, Mr Spinks advised:

I strongly support the emphasis that these have on the values and professional standards expected of our Defence Force members by the Australian people. I would commend, in particular, the new cyber-bullying offence.32

2.31 The ADA advised the Committee that the new service offences 'reflect wider change in Australian society and are fully supported.'33

29 Defence Force Welfare Association, Submission 4, p. 2.

30 Australian Defence Association, Submission 6, p. 2.

31 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 3.

32 Mr Don Spinks AM, Submission 1, p. 2.

33 Australia Defence Association, Submission 6, p. 2.

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Failure to perform duty or carry out an activity and failure to notify a change in circumstances concerning the receipt of a benefit or allowance 2.32 The CMSL commented on the application of strict liability as part of these new offences, noting that this was not unusual and that approximately 25 offences

under the DFDA already included strictly liability in one of more elements of those offences, and that '[n]o inherent unfairness to an accused person arises simply because of the inclusion of strict liability in these offences.'34

2.33 In regard to proposed section 56A dealing with the failure to notify a change in circumstances, GAP Veteran and Legal Services advised that this new offence:

…appears, on its face, to rectify a difficulty in securing convictions in what is a prevalent area of offending in Defence.

…proposed section 56A strikes a fair and equitable balance between the need to suppress a prevalent and costly offence and the proof requirements established by attachment of a strict liability standard to the failure component of the offence. The intent of the amendments proposed in section 56A are, in our submission, satisfied.35

2.34 However, GAP Veteran and Legal Services raised whether applying a strict liability standard to a significant element of the new offence of failure to perform duty proposed in new subsection 35A(1) was appropriate given the 'magnitude' of this offence which carries a maximum penalty of dismissal from the ADF.36

2.35 Defence noted the application of strict liability to elements of these new offences, along with a number of existing offences under the DFDA, was 'offset by the availability of a defence of reasonable excuse.'37

Cyber-bullying offences 2.36 As noted in Chapter 1, the bill introduces a new service offence for cyber-bullying under proposed new sections 48A and 48B. While submitters generally supported the need for a service offence to deal with cyber-

bullying,38 some submitters raised concerns with certain aspects of the proposed amendments in the bill.

34 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 4.

35 GAP Veteran and Legal Services, Submission 8, p. 6.

36 See GAP Veteran and Legal Services, Submission 8, pp. 4-5.

37 Department of Defence, Submission 5, p. 8. See also Department of Defence, Answers to questions

on notice, received 8 October 2021.

38 See for example, Mr Don Spinks AM, Submission 1, p. 2; Centre for Military and Security Law,

ANU College of Law, Submission 3, p. 3; Defence Force Welfare Association, Submission 4, p. 2.

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Broad nature of offence/connection to discipline 2.37 The Judge Advocate General (JAG), Rear Admiral JT Rush RFD QC RAN, noted and endorsed a 'note of caution' made by his predecessor, Rear Admiral His Honour Justice MJ Slattery, AM RAN, in his 2020 Annual Report, in

relation to proposed section 48A. Rear Admiral Slattery advised in the annual report that the closest provision to this offence in Commonwealth legislation appears to be section 474.17 of the Criminal Code Act 1995 (Criminal Code) which 'provides a more demanding test for criminal liability than the proposed s. 48A and consequently carries a higher penalty.'39

2.38 Rear Admiral Slattery noted as 'exceptional' that the offence under proposed section 48A 'requires no connection to the discipline of the Defence Force beyond the accused being a member of the Defence Force'. Further explaining that:

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.40

2.39 Rear Admiral Slattery observed that most of the DFDA provisions which impose criminal liability on a Defence member include a connection to 'the performance of Defence duties or in relation to Defence property, or in order to not prejudice service discipline.'41 He noted that section 33A of the DFDA, which creates an offence of assault occasioning actual bodily harm by defence members in a 'public place', was an exception where the Act does impose on criminal obligations on Defence members 'without overt connection to Defence property, duties or discipline'.42 However, he noted that:

…s. 33A has an exact counterpart (and with equivalent penalties) in the civilian law of the Commonwealth and of all States and Territories. DFDA s. 33A's congruence with its civilian legislative equivalents means that Defence members charged under that section are not being treated more harshly than other members of the community.43

2.40 In regard to the broad nature of the provisions under proposed section 48A, Rear Admiral Slattery concluded that:

39 Judge Advocate General, Submission 2, p. 1.

40 Judge Advocate General, Submission 2, p. 1.

41 Judge Advocate General, Submission 2, p. 2.

42 Judge Advocate General, Submission 2, p. 2.

43 Judge Advocate General, Submission 2, p. 2.

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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.44

2.41 The Department of Defence submitted that cyber-bullying by Defence members 'is corrosive to discipline':

The new cyber-bullying service offence will send a very strong message to Defence members that the use of social media to cyber-bully another person is unacceptable in a disciplined force. It is unlikely that the Australian Defence Force or broader Australian community would expect otherwise as any such behaviour is inconsistent with good order and discipline and appropriate that it be dealt with under the DFDA.

The scope of the cyber-bullying service offence by a defence member extends to another person, meaning that the victim of the proposed offence could be any person, including a victim who is not a member of the Defence Force. The offence does not require that the conduct occur on service land, or that a defence member is on duty at the time of offending. It is sufficient that the accused is a Defence member (as defined under the DFDA) for the good order and discipline of the Australian Defence Force to be impacted. The discipline and good order of the Australian Defence Force can be impacted by such conduct, regardless of the identity of the victim.45

2.42 The CMSL strongly supported the position set out in the EM that cyber-bullying is incompatible with service in the ADF and that cyber-bullying by its very nature is 'likely to affect service morale and discipline.'46 The CMSL contended that:

…there is a valid reason for considering that any member of the ADF who engages in cyberbullying of any type poses a threat to the good order and discipline of the ADF just by that fact alone. A closer connection to the Defence Force would not be needed to adversely impact service discipline; it would be enough that the perpetrator is a Defence member (as defined under the DFDA) for the risk to manifest. Further, it is difficult to comprehend any level of tolerance on the part of the Parliament or Australian society for the notion that it would be permissible for a member

44 Judge Advocate General, Submission 2, p. 2.

45 Department of Defence, Submission 5, p. 8.

46 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 4.

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of the ADF to engage in cyberbullying and yet that activity would be beyond the scope of the ADF to address as a matter of service discipline.47

2.43 The Department of Defence discussed why section 474.17 of the Criminal Code was not suitable in the Defence context:

This offence carries a maximum punishment of three years imprisonment and can be charged under the DFDA as a Territory Offence (s.61). However, as a prescribed offence it cannot be heard and determined before a summary authority, with the consequence that the charge can only be determined before a superior tribunal.

The s.474.17 misuse of a carriage service offence is not tailored to support the Australian Defence Force to maintain good order and discipline by taking swift action in respect of cyber-bullying. A tailored offence, able to be dealt with by summary discipline authorities within weeks of the alleged offending, is necessary to meet the disciplinary needs of the Australian Defence Force, particularly in deployed environments.

The proposed s.48A has broader application than the s.474.17 offence, as it deals with cyber-bullying that would be regarded as threatening, intimidating or humiliating another person. It is appropriate that this higher threshold for behaviour be applied to a disciplined force, where it is not applied to civilians. As individuals authorised and trained to apply lethal force in service of their nation, members of the Australian Defence Force must be trusted to apply violence only in a disciplined and lawful way. Cyber-bullying behaviour evinces a willingness to de-humanise and de-value another person, a clear risk factor for a deviation from norms in the controlled application of violence.48

Capability of a summary authority dealing with this offence 2.44 The current JAG, Rear Admiral Rush, commented on the appropriateness of a summary authority, administered by military officers who are not legally qualified, to hear a charge of the nature of that proposed under section 48A,

noting the potential complexity of cyber offences 'in terms of the continuing nature of the offence and duplicity in charging':49

The disposal of such cases, even on a plea of guilty, involves difficult legal considerations beyond the reasonable competence of lay summary authorities. These difficulties will be likely compounded as the drafting of the charges is invariably undertaken by non-lawyers in the summary discipline system.50

2.45 Rear Admiral Rush also commented on the bill's intention to include the new offence under proposed section 48A on the Schedule 1A list of the DFDA as exacerbating the potential for unfairness to members as there would not be the

47 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 4.

48 Department of Defence, Submission 5, pp. 8-9.

49 Judge Advocate General, Submission 2, p. 2.

50 Judge Advocate General, Submission 2, p. 2.

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right of an up-front election for hearing by a Defence Force Magistrate. The JAG noted that:

The reason for the existence of a List of Schedule 1A offences is to enable a summary authority to efficiently deal with charges concerning minor infractions of disciplines. Section 48A is not such an offence.51

2.46 The DFWA also raised concerns about the capability of a commanding officer or senior summary authority to deal with cyber-bullying offences, noting in particular that the technical nature of the evidence in such cases may potentially impact on the evidentiary and investigatory requirements, which may in turn render them 'beyond the scope of unit investigation.'52 Given these concerns, the DFWA also questioned:

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.53

2.47 However, the DFWA concluded that these concerns:

…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.54

2.48 The CMSL also commented on the appropriateness of a summary authority to deal with a cyber-bullying offence, advising that:

…for reasonably straightforward matters, there is no reason why a summary authority should not be able to exercise jurisdiction over a cyberbullying offence; this already occurs at summary level for most DFDA offences. If there are complicating factors, then the current practice of obtaining legal advice and/or referring the matter to the Director of Military Prosecutions remains available. In some circumstances, the use of a charge under DFDA s 61(3) and the relevant criminal code would also be appropriate for a cyberbullying offence. All of these options remain available with the propose amendment.55

2.49 The IGADF noted the concerns raised by the JAG's 2020 Annual Report and parliamentary committees56 on the proposed cyber-bullying offence where it had been the subject of 'cautious comment' and responded:

51 Judge Advocate General, Submission 2, p. 2.

52 Defence Force Welfare Association, Submission 4, p. 2.

53 Defence Force Welfare Association, Submission 4, p. 2.

54 Defence Force Welfare Association, Submission 4, p. 3.

55 Centre for Military and Security Law, ANU College of Law, Submission 3, p. 5.

56 See Chapter 1, paragraphs 1.39-1.44.

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Given the Australian Defence Force’s predominantly digitally-literate, young adult demography, mechanisms to allow lower level cyber bullying offending to be tried summarily are desirable. Should the proposed offence be made law, it will be administered in a system that has protections for members charged with an offence, including automatic review and appeal mechanisms, and oversight not only by the Judge Advocate General but also by my Office.57

2.50 Defence advised that cyber-bullying was not considered to be a minor breach of discipline and therefore is not suitable for the disciplinary infringement regime;58 and is appropriate to be dealt with by a summary authority:

As with all offences, matters will vary in the seriousness of the conduct, and the level of complexity. Conduct at the lower end of the scale, where there is limited legal complexity, is appropriate to be dealt with by a summary authority service tribunal. More serious conduct, or where there were legal complexities, would be tried before a superior service tribunal or referred to the civil police.59

2.51 The EM notes that this offence 'will enable less serious disciplinary breaches of cyber-bullying to be dealt with expeditiously by a summary authority,' while more serious breaches can still be dealt with by court martial or Defence Force magistrate.60 It was further noted that '[r]eferral to civilian authorities will remain an option for matters that may constitute a criminal offence'.61

Committee view 2.52 The Committee acknowledges the importance of a military discipline system that is trusted by those who serve in the Defence Force, and by the Australian community more broadly, to deal with breaches of discipline quickly,

effectively and fairly. The enforcement and maintenance of discipline through the DFDA is essential to the safety, morale, health and wellbeing, unit cohesion, and ultimately the capability of the Australian Defence Force.

2.53 The measures contained in the bill address issues which have been identified in reviews of the DFDA over a number of years, most notably the 2017 Review of the Summary Discipline System, where aspects of the summary discipline system were found to be overly complex, difficult to use and characterised by delays, potentially eroding morale and impacting safety. The Committee notes that there was a general consensus among submitters on the need to address these concerns in order to modernise and simplify the summary discipline system administered under the DFDA.

57 Inspector-General of the Australian Defence Force, Submission 7, pp. 1-2.

58 Department of Defence, Submission 5, p. 8.

59 Department of Defence, Submission 5, p. 8.

60 EM, [p. 30].

61 EM, [p. 30].

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2.54 The Committee supports the measures contained in the bill to address issues which had been identified in reviews on the operation of the DFDA. The Committee was pleased to note the overall support from submitters for the removal of the subordinate summary authority and expansion of the disciplinary infringement scheme to enhance its effectiveness to deal with minor breaches of discipline. The retention of current safeguards and added protections contained in the bill will deliver a discipline system that is fair and one that will continue to be trusted by Defence members.

2.55 Submitters also broadly endorsed the proposed restructure of summary authorities to re-align jurisdiction of discipline officers and summary authorities and between summary authorities, in terms of the type of breach, rank of individual and available punishments.

2.56 The introduction of new service offences were also generally supported and seen as necessary to better manage breaches of discipline in a modern ADF. Concerns were raised about some aspects of the new offences, most notably the new cyber-bullying offence. However the Committee notes the explanations provided on why the proposed offence is necessary, as well as protections available for members dealt with under this offence.

Recommendation 1

2.57 The Committee recommends that the bill be passed.

Senator the Hon Eric Abetz Chair

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Appendix 1

Submissions, answers to questions on notice and correspondence

1 Mr Donald Spinks 2 Office of the Judge Advocate General 3 Centre for Military and Security Law, ANU 4 Defence Force Welfare Association 5 Department of Defence 6 Australia Defence Association 7 Office of the Inspector-General of the Australian Defence Force 8 GAP Veteran & Legal Services

Answer to Question on Notice 1 Department of Defence - answer to written question on notice (received 8 October 2021)

Correspondence 1 Correspondence from the Hon Andrew Gee MP, Minister of Defence Personnel to Senator the Hon Eric Abetz in relation to the Defence Legislation Amendment (Discipline Reform) Bill 2021(received 8 October 2021)