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Defence Legislation Amendment Bill 2018



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ISSN 1328-8091

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BILLS DIGEST NO. 61, 2018-19 14 FEBRUARY 2019

Defence Legislation Amendment Bill 2018 Karen Elphick and Paula Pyburne Law and Bills Digest Section

Contents

Glossary ....................................................................... 4

Purpose of the Bill ........................................................... 5

Structure of the Bill ......................................................... 5

Structure of the Bills Digest ......................................... 5

Committee consideration ................................................ 5

Senate Selection of Bills Committee ........................... 5

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 5

Policy position of non-government parties/independents...................................................... 5

Position of major interest groups..................................... 5

Financial implications ...................................................... 6

Statement of Compatibility with Human Rights................ 6

Parliamentary Joint Committee on Human Rights ..... 6 Background—constitutional issues .................................. 6

The defence power ..................................................... 6

Civilian control of the military ..................................... 8

The control and administration of the ADF .............. 9 The separation of powers underpins fundamental human rights ............................................................... 9

Reform of the military justice system and High Court intervention ..................................................... 10

The Australian Military Court .................................. 11

Why have a separate system of military justice? ..... 13 Schedule 1—Appointments ........................................... 13

What the Bill does ..................................................... 13

Commencement ........................................................ 14

Date introduced: 5 December 2018

House: House of Representatives

Portfolio: Defence

Commencement: Sections 1-3 commence on the day of Royal Assent. Schedules 1 to 3 commence on various dates, as set out in the digest.

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 February 2019.

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Background—the structure of the DFDA .................. 14 Service offences ...................................................... 14

Service tribunals ...................................................... 14

Courts martial and Defence Force magistrates ...... 15 Table 1: Positions in the military justice system ..... 16 Judge Advocate General ........................................... 16

Qualification and appointment ............................... 16

Key issue—drafting inconsistency ........................... 17

Termination ............................................................. 17

Judge advocates (including CJA and DCJA) ............... 17 Terms of appointment ............................................ 17

Termination of appointment ................................... 18

Key issue—independence of JAs and command influence .................................................................. 19

Selection of JAs ........................................................ 20

Key issue—selection criteria are discretionary ....... 20 Key issue—diversity is discretionary ....................... 21

Key issue—is the DCJA an additional full-time position? .................................................................. 21

Remuneration—all JA appointments ...................... 21 Registrar of Military Justice and Director of Military Prosecutions ................................................ 22

Schedule 2—Defence Reserves ...................................... 22

What the Bill does ..................................................... 22

Commencement ........................................................ 22

Background ............................................................... 23

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 23

Sunsetting of regulations .......................................... 24

Amendments to Part 11—Enforcement and remedies .................................................................... 24

Pecuniary penalties ................................................. 24

Division 1A—overview of Part .................................. 25

Key issue—apparent drafting error ........................ 25

Division 1B—Complaints and investigations ............. 26 Key issue—constitutional issues re coercive powers ..................................................................... 26

Key issue—investigation may be seen as biased .... 27 Key issue—assignment of statutory duty apparently outside statutory duty .......................... 27

Division 1C—Dispute resolution ............................... 27

Part 2—Other Amendments ..................................... 28

Prescribed authorities and prescribed persons ...... 28 Annual reporting requirement ................................ 28

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Part 3—Application, saving and transitional provisions .................................................................. 28

Schedule 3—Other Amendments ................................... 28

Commencement ........................................................ 28

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Glossary

ADF Australian Defence Force

AMC Australian Military Court

CDF Chief of Defence Force

CJA Chief Judge Advocate

commanding officer Refers to person appointed as a commanding officer (see DFDA section 3 ‘summary authority’, section 3(11) and section 5)

DCJA Deputy Chief Judge Advocate

defence member a member of the Permanent Navy, Regular Army or Permanent Air Force or a member of the Reserves who is on continuous full-time service or on duty or in uniform (see DFDA section3)

DFDA Defence Force Discipline Act 1982

DFM Defence Force magistrate

DMP Director of Military Prosecutions

DRS Protection Act Defence Reserve Service (Protection) Act 2001

JA Judge Advocate - an officer who is appointed to the judge

advocate panel see DFDA section 196)

JAG Judge Advocate General

legal officer an officer who is a legal practitioner (see DFDA section 3)

member of the Defence Force includes any officer, sailor, soldier and airman of the Australian Defence Force (see Defence Act 1903 section 4)

officer a person appointed as an officer of the Navy, Army or Air Force

(see DFDA section 3)

RMJ Registrar of Military Justice

service tribunal a court martial, a Defence Force magistrate or a summary authority (see DFDA section 3)

summary authority A unit commander without legal qualifications who hears disciplinary trials for offences by unit members. Principally commanding officers (see DFDA section 3)1

1. P Cronan, ‘A threatened existence - the operation and adaptation of military discipline in Australia’, chapter 13 in A Duxbury and M Groves, eds, Military justice in the modern age, Cambridge University Press, Cambridge, 2016 at p. 264.

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Purpose of the Bill The purpose of the Defence Legislation Amendment Bill 2018 (the Bill) is to enact three measures which will:

• amend the Defence Force Discipline Act 1982 (Cth) (DFDA) by altering the process of selection and the terms of appointment, remuneration and termination of officers to the Judge Advocates panel and related statutory offices

• introduce provisions into the Defence Reserve Service (Protection) Act 2001 (Cth) (DRS Protection Act) concerning the investigation and resolution of complaints about discrimination against Australian Defence Force (ADF) Reserve members or hindering of their reserve service and

• make some technical amendments to the DFDA which will not alter its operation.

Structure of the Bill The Bill is divided into three Schedules which deal with each of those measures.

Structure of the Bills Digest The Bill covers ground which once again touches on powers which have been subject to considerable litigation in the High Court of Australia. The key constitutional issues for Parliament in considering defence legislation are analysed in an introductory background section below.

As the matters covered by each of the Schedules are independent of each other, the relevant background, stakeholder comments (where available) and analysis of the provisions are then set out under each Schedule number.

Committee consideration

Senate Selection of Bills Committee At its meeting of 6 December 2018, the Senate Selection of Bills Committee decided to defer consideration of the Bill to its next meeting.2

Senate Standing Committee for the Scrutiny of Bills At the time of writing this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) had not yet examined this Bill.

However the Scrutiny of Bills Committee has previously made comments relevant to the amendments in Schedule 2 to the Bill in relation to the DRS Protection Act. A discussion of those comments is under the heading of Schedule 2 below.

Policy position of non-government parties/independents As at the date of writing this Bills Digest, no non-government parties or independents have indicated a position on the Bill.

Position of major interest groups As at the date of writing this Bills Digest, no major interest groups have raised issues in relation to the Bill.

2. Senate Selection of Bills Committee, Report, 15, 2018, 6 December 2018.

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Financial implications According to the Explanatory Memorandum, the Bill ‘will have no additional impact on Commonwealth expenditure or revenue’.3

Funding for the Office of the Judge Advocate General is provided by the Associate Secretary Group of the Department of Defence.4 The Bill creates one or more new positions of Deputy Chief Judge Advocate within that office. It may be that an existing full time legal officer judge advocate position will become Deputy Chief Judge Advocate so that no additional funding is required. However, the Explanatory Memorandum does not address the funding of those positions.

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.5

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considered the Bill in its scrutiny report, Report 1 of 2019 and decided it did not raise any human rights concerns.

Background—constitutional issues The constitutional power to legislate for defence has proven quite difficult for Parliament to exercise effectively, especially in relation to military justice. The High Court has, over time, found a number of defence provisions unconstitutional and it is therefore appropriate for Parliament to give any proposed defence legislation particularly careful scrutiny.

The Constitution draws a sharp distinction between Legislative, Executive and Judicial powers. The Legislature has power to make laws for defence (section 51(vi)); the Executive has the command of the naval and military forces of the Commonwealth (section 68) and the Judiciary has the power of hearing and determining questions on interpretation of the law and it application to particular cases.6 To some extent, the Executive power incorporates the prerogatives of the Crown.

There are three key issues that impact on defence legislation generally and that are raised by the amendments in this Bill: the scope of the legislative defence power in the Constitution; the constitutional principle that the military must be subject to civilian control; and the human rights issue that, so far as possible, military personnel should have the same rights and obligations as the general population. This last point also raises a constitutional issue in relation to the separation of powers, because it is the independence of judicial power from executive control that guarantees the rule of law.

The defence power The Australian Constitution (the Constitution) grants the Commonwealth power to make laws for defence in paragraph 51(vi) (the defence power). The defence power is unusual because it is not a

3. Explanatory Memorandum, Defence Legislation Amendment Bill 2018, p. 4. 4. Department of Defence, Judge Advocate General: report for the period 1 January to 31 December 2017, p. 3. 5. The Statement of Compatibility with Human Rights can be found at pages 6 and 10 of the Explanatory Memorandum, Defence Legislation Amendment Bill 2018.

6. J Quick and RR Garran, The Annotated Constitution of the Australian Commonwealth, Revised Edition, LexisNexis Butterworths, Australia, 2015, pp. 837-838 and pp. 864-865.

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power with respect to a subject, but a power with respect to a purpose.7 The High Court’s rulings on the scope of the defence power were recently summarised by Perry J in Rowley v Chief of Army:

[102] Section 51(vi) confers power on the Commonwealth Parliament to make laws “with respect to … the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth”. The defence power (as the applicant submits) is purposive in nature, being referable to “aims or objectives” rather than subject-matter. As a consequence, a determination of whether the law falls within the scope of the defence power may involve a consideration of questions of proportionality, that is, that the means employed by the Parliament must be proportionate to a legitimate end within the head of power: Thomas v Mowbray (2007) 233 CLR 307 (Thomas v Mowbray) at [135] (Gummow and Crennan JJ). As Dawson J explained in Leask v Commonwealth (1996) 187 CLR 579 at 605-606:

Taking the defence power for example, a court must ask whether a law is for the purpose of defence. There is no subject matter as there is with other powers — lighthouses or external affairs, for example — and it is therefore not possible to delineate the boundaries of the power by reference to the subject matter: the acts, facts, matters or things upon which a law with respect to defence may operate are, at least in wartime, virtually without limits. To determine the validity of a law said to be supported by purposive power, a court must ask whether it is a law for the specified purpose, and the court may have to enquire into whether the law goes further than is necessary to achieve that purpose. That is an exercise in proportionality.

[103] As alluded to in this passage, proportionality in this context will also be affected by whether the Commonwealth is in a time of peace or war.

[104] Nonetheless, even in times of peace, the defence power must be broadly construed in common with the other constitutional heads of legislative power: see eg Thomas v Mowbray at [7] (Gleeson CJ), [138]-[140] (Gummow and Crennan JJ). As Fullagher J explained in the Australian Communist Party v Commonwealth (1951) 83 CLR 1 (the Australian Communist Party Case) at 254, such matters as:

… the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the maintenance of weapons and the erection of fortifications … These things can be undertaken by the Commonwealth as well in peace as in war, because they are ex facie connected with “naval and military defence”. From any legitimate point of view of a Court their only possible purpose or object is naval and military defence … The defence power in its primary aspect includes much more than the things I have mentioned. It could not, I think, be doubted that it includes a power to make laws for the prevention or prohibition and punishment of activities obstructive of the preparation by such means as I have mentioned of the nation for war — and this whether war appears to be imminent or the international sky to be completely serene.

8 [Emphasis added]

According to section 9 of the DFDA, its offences will apply to a defence member both within and outside of Australia and a defence civilian accompanying the ADF outside Australia, or on operations against the enemy, which could be within Australia.9 The ADF must function both within and outside Australia, and when in Australia, the ordinary criminal law will also apply to both a defence member and a defence civilian. This means that if they commit an ordinary criminal offence, they could be charged under the DFDA.

7. The extent of the power and the test to be used are discussed by Griffith CJ in Farey v Burvett (1916) 21 CLR 433 at 440-444, [1916] HCA 36. 8. Rowley v Chief of Army (2017) 255 FCR 176, [2017] FCA 1119, paragraphs 102-104. 9. DFDA, section 3 defines a defence civilian as a person (other than a defence member) who: (a) with the authority of an

authorized officer, accompanies a part of the Defence Force that is outside Australia or on operations against the enemy and (b) has consented, in writing, to subject himself or herself to Defence Force discipline while so accompanying that part of the Defence Force.

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This overlapping jurisdiction has generated an additional ground for challenges to the constitutional validity of the DFDA because there is no Commonwealth constitutional head of power to make ordinary criminal law.10

The Court formulated a ‘service connection’ test to decide whether particular behaviour had sufficient connection to the defence power for DFDA charges to be constitutionally valid:

…the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline … Proceedings may be brought against a defence member or a defence civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

11

Questions around the scope of the Defence power are raised by amendments proposed in Schedule 2.

Civilian control of the military It is a fundamental democratic principle that the military must be subject to civilian control. The command of the ADF is vested in the Governor-General by section 68 of the Constitution:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

In common with all other Executive powers, the exercise of command of the ADF is subject to the principle of legality: The power must be exercised subject to constitutional and statutory restraints:

This command-in-chief of the naval and military forces ... is one of the oldest and most honoured prerogatives of the Crown, but it is now exercised in a constitutional manner. The Governor-General could not wield more authority in the naval and military business of the country than he could in the routine work of any other local department. Of what use would be the command without the grant of the supplies necessary for its execution? All matters therefore, relating to the disposition and management of the federal forces will be regulated by the Governor-General with the advice of his Ministry having the confidence of Parliament.

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The requirement that the Governor-General act on the advice of the Ministry subjects the ADF to civilian political control. That is as it should be. Even that famous proponent of total war, Carl von Clausewitz, recognised that war must, by its very nature, be subordinated to political control:

When whole communities go to war - whole peoples, and especially civilized peoples - the reason always lies in some political situation, and the occasion is always due to some political object. War, therefore, is an act of policy … Policy, then, will permeate all military operations, and, in so far as their violent nature will admit, it will have a continuous influence on them …

We see therefore, that war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on with other means …The political object is the goal, war is the means of reaching it, and means can never be considered in isolation from their purpose. 13

As academic Dr Cameron Moore writes:

10. Re Tracey; Ex parte Ryan (1989) 166 CLR 518, [1989] HCA 12; Re Nolan; Ex parte Young (1991) 172 CLR 460, [1991] HCA 29; and Re Tyler; Ex parte Foley (1994) 181 CLR 18, [1994] HCA 25. The decisions are discussed further below under the heading ‘The separation of power underpins fundamental human rights’.

11. Re Tracey; Ex parte Ryan, op. cit., at paragraph 29. 12. Quick and Garran, op. cit., at p. 856. 13. C von Clausewitz, ‘What is war?’, in C von Clausewitz, On war, Alfred A Knopf, New York, 1993, Chapter 1, pp. 98-99.

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The constitutional challenge has been to harness military power to underwrite governmental power whilst ensuring that such military power remains under the control of government.

It is important to see the ADF as a central but distinct part of the executive. It attracts the limits that apply to Commonwealth executive power generally but it also has limits of its own because it is a potential danger to the civilian government which it serves. 14

The military is a branch of the Federal Executive, just as Federal Police and Border Force officers are. Police and border control officers have a limited range of statutory duties and tight rules on the use of force. Within those legal boundaries they may operate with a fair degree of freedom and initiative. The ADF on the other hand, has very broad latitude in the use of force but must not act on its own initiative. The Government prescribes the strategic mission, or the political object, it wishes the ADF to achieve in any particular circumstance.

The proper use of the military is a critical issue for a democracy and the law must provide controls that will thwart bad actors, rather than relying on good actors to uphold constitutional norms. As Justice Hope observed:

Use of the military other than for external defence, is a critical and controversial issue in the political life of a country and the civil liberties of its citizens. 'An armed disciplined body is in its essence dangerous to Liberty: undisciplined, it is ruinous to Society'. Given that there must be a permanent Defence Force, it is critical that it be employed only for proper purposes and that it be subject to proper control.

15

[emphasis added]

The control and administration of the ADF There is a further division of power that is relevant here and that is the division of the command, administration and control of the Defence Force.

Section 8 of the Defence Act 1903 (Cth) (the Defence Act) provides the Minister has general control and administration of the ADF. Section 9 of the Act gives Chief of the Defence Force (CDF) command of the ADF. Section 10 gives the Secretary and the CDF joint administration of the ADF. Section 8 further provides that the CDF and the Secretary, when exercising their functions and powers, must comply with any directions of the Minister. The administration of the Defence Force does not include any matter falling within the command of the ADF.

The Defence Act sets up an exclusive military domain defined by command. Administration is shared, but the CDF has no wider powers with respect to measures for defence than the power Parliament has given in the Defence Act, or in some other valid Act. The CDF is exclusively concerned with the command and administration of the ADF.

Questions around the proper use of military personnel are raised by amendments proposed in Schedule 2.

The separation of powers underpins fundamental human rights Justice Jacobs of the High Court explained the importance of an independent judiciary in protecting basic rights which might not be expressed in statute:

14. C Moore, Crown and Sword, ANU Press, Canberra, 2017, p. 80. 15. RM Hope, Report of the Protective Security Review, Protective Security Review, AGPS, Canberra, 1979, p. 142, quoting Edmund Burke.

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… we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the Parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by the independent judiciary which is the bulwark of freedom.

16

In an 1812 decision, Chief Justice Lord Mansfield observed:

… a soldier is gifted with all the rights of other citizens … the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman. 17

However, Lord Mansfield’s approach has not found favour with the majority of the High Court. In Australia, the question has to be formulated in terms of whether the rights and freedoms of members of the ADF are sufficiently protected if the military justice system sits outside of the independent judiciary which exercises the ‘judicial power of the Commonwealth’ under Chapter III of the Constitution.

Questions about whether the independence and impartiality of the military justice system are eroded by amendments proposed in Schedule 1 are discussed further below.

Reform of the military justice system and High Court intervention In 1982 the Parliament passed the DFDA, combining the different discipline systems of the three services and codifying a military justice system. In creating the DFDA’s system of service tribunals,18 the drafters relied, in part, on the decision of the High Court in R v Bevan.19 The Court decided in that case that naval courts martial exercised judicial power, but not the judicial power of the Commonwealth. Instead, the authority of a court martial to decide cases arose from the defence power.

There were five significant High Court challenges to the constitutionality of the DFDA before major reform in 2006 creating the Australian Military Court (AMC).20

The cases involved offences charged under the DFDA which could also have been charged under ordinary criminal law and concerned the extent to which the defence power could authorise those charges to be tried by a service tribunal which was not exercising the judicial power of the Commonwealth. Unfortunately the legal reasoning differed between various judges and the court has not provided a clear rule of law which balances the proper control of the armed forces and the guaranteed protection of judicially enforced civil rights.

It was clear after these cases that a majority of the High Court agreed there was power in section 51(vi) of the Constitution to establish a system of military justice involving the trial and punishment of offences by tribunals other than courts, even though the reasons for that outcome varied.

16. R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at p. 11, [1977] HCA 62. 17. Burdett v Abbot (1812) 128 ER 384 at 403 cited in Groves v Commonwealth of Australia (1982) 150 CLR 113, [1982] HCA 21 at para. 20. 18. DFDA, section 3 defines a service tribunal as a court martial, a Defence Force magistrate or a summary authority. 19. (1942) 66 CLR 452. 20. Re Tracey; Ex parte Ryan, op. cit.; Re Nolan; Ex parte Young, op. cit.; and Re Tyler; Ex parte Foley, op. cit.; Re Colonel Aird; ex

parte Alpert (2004) 220 CLR 308, at 302, [2004] HCA 44; Anne Margaret White v Director of Military Prosecutions & Anor, [2007] HCA 29.

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A minority of the Justices were of the view that persons who are subject to military discipline could not, on that account, be deprived of the protection which flows from Chapter III of the Constitution. They could only be tried by a court exercising the judicial power of the Commonwealth.21 Another minority view was that the separation of powers required that a service tribunal constituted under section 51(vi) could only deal with exclusively disciplinary offences—not civilian criminal offences which were imported from the law applicable in the Jervis Bay territory.22

The Australian Military Court The DFDA with its system of service tribunals and discipline officers was therefore, legally secure. However, there was public pressure for change to the system after a series of publicly aired complaints suggested systemic problems.23

In 2003, the Senate Foreign Affairs, Defence and Trade References Committee began a broad ranging inquiry into the effectiveness of the military Justice system. On 16 June 2005, the Committee reported:

A decade of rolling inquiries has not met with the broad-based change required to protect the rights of Service personnel. The committee considers that major change is required to ensure independence and impartiality in the military justice system and believes it is time to consider another approach to military justice.

24

Evidence to the committee cast considerable doubt over the impartiality of current structures, and argued that Service personnel's rights to access fair and independent tribunals are under threat.

The committee considers that establishing an independent Permanent Military Court, staffed by independently appointed judges possessing extensive civilian and military experience, would extend and protect a Service member's inherent rights and freedoms, leading to impartial, rigorous and fair outcomes.

25

The Defence Legislation Amendment Act 2006 amended the DFDA to establish the Australian Military Court (AMC) to replace the system of trials by courts-martial and Defence Force Magistrates.26 The system of lower level disciplinary offences tried by summary authorities was retained. The relevant bill was referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade for inquiry and report. The 2006 Committee concluded:

Overall, the committee believes that the government settled for the barest minimum reforms required to its service tribunals to escape a constitutional challenge. In so doing, the committee takes the view

21. See especially the reasons of Gaudron J in Re Nolan and Re Tyler above. 22. Re Colonel Aird, op. cit., at pp. 330-331 and White v DMP, op. cit. paragraphs 151-155. 23. See for example: See Brigadier the Hon Mr Justice Abadee, ‘Study into [the] judicial system under the Defence Force Discipline Act’, 24 September 1997; Joint Standing Committee on Foreign Affairs, Defence and Trade, Military justice procedures in the

ADF, The Committee, Canberra, June 1999; Joint Standing Committee on Foreign Affairs, Defence and Trade, Rough justice? An investigation into allegations of brutality in the Army’s Parachute Battalion, The Committee, 2001; JCS Burchett QC, Inquiry into military justice in the Australian Defence Force, Department of Defence, July 2001. 24. Foreign Affairs, Defence and Trade References Committee, The effectiveness of Australia's military justice system, Senate, Canberra, 16 June 2005 p. xxi. 25. Foreign Affairs, Defence and Trade Reference Committee, p. xxii. 26. Further information about the contents of the amending act can be found in S Harris Rimmer and J Moremon, Defence Legislation Amendment Bill 2006, Bills Digest 48, 2006-07, Parliamentary Library, Canberra, 2006.

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that, in striving for the minimum, the government has not removed the risk that at some stage the High Court may find that the AMC is constitutionally invalid. 27

In August 2009 the High Court did exactly that. In Lane v Morrison the High Court unanimously ruled that the AMC was a body exercising the judicial power of the Commonwealth, but it had not been constituted in accordance with Chapter III of the Constitution, and was therefore an invalid exercise of the defence power:28

Legislative attempts to establish the AMC as a service tribunal established under the defence power, while giving it many of the attributes of a court, had failed. The High Court concluded that the absence of review by the chain of command of the decisions, punishments and orders of the AMC showed, above all else, that the provisions establishing the AMC had strayed beyond a valid exercise of the defence power. By operating as a tribunal of final decision, the AMC was functioning as a court, not as a service tribunal.

29

The High Court ruling in Lane v Morrison means the government can choose to use the defence power to maintain the flawed higher level service tribunals which are subject to command influence, or it can appoint a properly constituted independent Chapter III court. No halfway house is available.

The decision cast doubt ‘on more than 170 convictions’ recorded by the AMC in its nearly two years of operation.30 Parliament quickly passed Military Justice (Interim Measures) Act (No. 1) 2009 and Military Justice (Interim Measures) Act (No. 2) 2009.

The purpose of the No. 1 Act was to amend the DFDA so that the service tribunal system that existed before the creation of the AMC was returned. The purpose of the No. 2 Act was to impose disciplinary sanctions on persons which would correspond to the punishments imposed by the AMC and, where necessary, summary authorities in the period between the establishment of the AMC and the High Court decision in Lane v Morrison. It also provided persons with the right to seek review if a disciplinary liability had been imposed by the AMC.31

The Government made clear that this was merely a ‘temporary reinstatement of the military justice system which pre-existed the establishment of the Australian Military Court’ which would ‘allow time for the establishment of a military court which meets the requirements of Chapter III of the Constitution’.32

The Military Court of Australia Bill 2010 was introduced into the House of Representatives on 24 June 2010. The Bill lapsed on 19 July 2010 when the Parliament was dissolved.

The Military Court of Australia Bill 2012 was introduced into the House of Representatives on 21 June 2012. The Bill lapsed on 5 August 2013 when the Parliament was dissolved.

No further proposal for a permanent court has been introduced.

27. Standing Committee on Foreign Affairs, Defence and Trade, Defence Legislation Amendment Bill 2006 [Provisions], Senate, Canberra, October 2006, p. 6. 28. Lane v Morrison [2009] HCA 29. 29. P Cronan, A threatened existence op. cit. p. 277. 30. B Nicholson, ‘Libs duck blame over military court’, The Sydney Morning Herald, 28 August 2009, p. 7. 31. S Conroy, (Deputy Leader of the Government in the Senate), ‘Second reading speech: Military Justice (Interim Measures) Bill

(No. 1) 2009 and Military Justice (Interim Measures) Bill (No. 2) 2009’, Senate, Debates, p. 6070, 9 September 2009. 32. Ibid.

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Why have a separate system of military justice? With all the difficult constitutional questions that must be resolved, it is worth asking whether the ADF really needs a separate system of military justice:

A separate military disciplinary system is commonly justified as recognising the unique function carried out by members of the Defence Force on behalf of the society from which they are drawn. Military personnel require a degree of training, discipline and unit cohesion that has no parallel in civilian life. They must develop in peacetime traits of character, patterns of behaviour and standards of performance which ensure the effective and controlled application of force on the battlefield. Operational service may be characterised by hazards and stresses utterly beyond the experience of civilian life in Australia, yet military duties must continue to be carried out efficiently despite confusion, danger, hardship, dispersion and isolation.

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A military discipline system therefore seeks to achieve several objectives that civilian courts do not, or cannot, achieve … Obedience to lawful orders is essential, because the actions of a single member at the tactical level can have strategic consequences for governments, threaten mission success and jeopardise lives.

34

The military discipline system is designed to support military training and unit cohesion and to compel certain necessary behaviours:

A military discipline system is capable of being pressed into operation wherever it is required. Disciplinary imperatives do not have to compete with civilian caseloads or yield to civilian court listing priorities or resource constraints … a military discipline system is completely portable and is the same regardless of regional or jurisdictional differences.

35

The ADF has been continually employed on armed missions overseas on behalf of the Government for over two decades. In some regions where it has deployed, there is no functioning local authority or it is hostile. If it is not feasible to be either tried under local law or transferred back to Australia for civilian trial, the only appropriate means to provide a defence member with a fair trial is under the DFDA.

Schedule 1—Appointments

What the Bill does Schedule 1 proposes amendments to the DFDA terms and conditions of appointment of various statutory officers concerned with the administration of service tribunals, including: the Judge Advocate General, The Deputy Judge Advocate General, the Chief Judge Advocate, the Registrar of Military Justice, the Director of Military Prosecutions and judge advocates. The key changes are:

• changes to the terms of appointments and their termination

• clarification of remuneration and allowances

• the creation of Deputy Chief Judge Advocates to provide administrative assistance to the Chief Judge Advocate and

• the introduction of selection criteria intended to achieve a diversity of expertise, experience and gender on the judge advocates panel.

33. Cronan, A threatened existence, op. cit., p. 265. 34. Ibid. 35. Cronan, A threatened existence, op. cit., p. 266.

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Commencement The amendments in Schedule 1 to the Bill commence on the day after Royal Assent.

Background—the structure of the DFDA The DFDA is a blend of historical military and civilian influences codified into a complete justice system. It creates a range of service offences which are tried by service tribunals. Powers are provided for the conduct of investigations. Rules of evidence and procedure are prescribed for the conduct of trials. Convictions and punishments are reviewed by military reviewing authorities who are advised by military legal officers.

Service offences The DFDA creates service offences in three ways:

• It creates service offences unique to the military for which there are no counterparts in civilian law,36 such as absence without leave,37 insubordinate conduct38 and disobeying a lawful command.39

• It creates service offences with a close civilian criminal law counterpart, such as assault:40

However, the effect on military discipline of such offences may be utterly unlike that in civilian life. Take the example of a soldier who strikes a superior officer. In civilian life, such an act would be a common assault. In the military, it would constitute a serious act challenging the hierarchy of authority on which the maintenance of discipline depends.

41 The wider military context of the offence means that such

conduct assumes a different and far more serious character. 42

• It imports offences from the ordinary criminal law ‘through a form of convenient legislative shorthand which removes the necessity to repeat, in the Act, all the provisions of an Australian criminal statute’.43 It applies those offences to defence members and defence civilians in certain circumstances.

The DFDA provides for a wide range of punishments including custodial sentences,44 fines,45 dismissal from the ADF,46 reprimand47 and reduction in rank.48

Service tribunals The DFDA creates service tribunals to try ADF members charged with committing offences. A service tribunal means a court martial, a Defence Force magistrate (DFM) or summary authority. A summary authority is a unit commander without legal qualifications and who has limited powers of punishment. It is usually the defence member’s commanding officer:

They preside over the overwhelming majority of disciplinary trials in the Defence Force, and mostly determine relatively simple and usually minor infractions of discipline within their own, or sometimes a

36. See DFDA Part III and Re Tracey; Ex parte Ryan, op. cit., at 518, 535 (Mason CJ, Wilson and Dawson JJ). 37. DFDA, section 24. 38. DFDA, section 26. 39. DFDA, section 27. 40. DFDA, section 33. 41. DFDA, section 25. 42. Cronan, A threatened existence, op. cit., p. 261. 43. Re Colonel Aird, op. cit., see Gleeson CJ at paragraph 3. 44. DFDA, paragraphs 68(1)(a) and (b). 45. DFDA, paragraph 68(1)(h). 46. DFDA, paragraph 68(1)(c). 47. DFDA, paragraph 68(1)(p). 48. DFDA, paragraph 68(1)(e).

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neighbouring, unit … summary authorities are lay tribunals and … the prosecuting and defending officers are also usually non-lawyers … 49

Summary authorities are lay tribunals and usually none of the participants are lawyers. However, hearings are conducted along similar lines to a minor criminal trial in a magistrates court, with rules of evidence and procedure. ‘It is easy to forget that the discipline of the Defence Force is most commonly maintained and enforced from day to day at the lower or summary level.’50

Courts martial and Defence Force magistrates A relatively small number of more serious service offences are heard by a court martial or DFM. These are ad hoc tribunals, convened as required. There are two types of court martial, a general court martial (GCM) for the most serious offences, and a restricted court martial (RCM):

A GCM consists of not less than five military officers, bound by the directions of a legally qualified judge advocate on any question of law. It is tempting to think of the military officers comprising a GCM as a kind of jury, but they are not a jury. They may not be junior in rank to the accused and there is no concept of a court martial being a trial of one’s peers. Unlike a jury, any question for determination of a court martial is decided by a simple majority. The most senior officer acts as president of the GCM and is formally responsible for the conduct of the trial. In the event of a conviction, the military officers are solely responsible for determining all matters of punishment, but are subject to the judge advocate’s directions as to the legal principles involved. In serious cases, punishments up to imprisonment for life may be imposed.

51

The RCM consists of not less than three military officers and has a power of punishment not exceeding imprisonment for six months. Once again a judge advocate (JA) gives binding directions on questions of law.

The third form of higher level tribunal is a trial by DFM. A DFM is a legally qualified military officer who sits alone, just as a civilian magistrate does. The legal officer is appointed to the judge advocate panel and then as a DFM.

ADF members can, for some offences, elect 'up', from summary authority proceedings to have their matter tried before a court martial or DFM,52 but they have no right to choose between the two. That decision rests exclusively with the Director of Military Prosecutions (DMP).53

Prosecution of cases before the higher tribunals is managed by the DMP. An accused person must be afforded the opportunity to be advised before trial and represented at trial by an ADF legal officer at no cost to the accused.54

The decisions of all service tribunals are subject to automatic review and may be quashed on review or appealed.55

Schedule 1 refers to various senior officer statutory appointments who administer the military justice system in the ADF. The appointments affected by the amendments in Schedule 1 to the Bill are set out in the table below.

49. Cronan, A threatened existence, op. cit., p. 264. 50. Ibid. 51. Ibid., pp. 262-263. 52. DFDA, sections 131 and 131AA. 53. DFDA, section 103. 54. DFDA, section 137 55. DFDA, Part VIIIA.

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Table 1: Positions in the military justice system

Judge Advocate General (JAG) The JAG is an experienced civilian judge and the most senior officer within the military justice system. The JAG provides civilian judicial oversight of

the operation of the DFDA and related legislation. In particular, the JAG provides supervision of the ADF’s superior service tribunals (courts martial, DFM tribunals and the Defence Force Discipline Appeals Tribunal) and the procedure of summary authorities. The JAG may be assisted by one or more Deputy JAGs. The JAG is appointed by the Governor-General.

Judge advocate (JA) JAs are senior military legal officers appointed to the judge advocates’ panel (the JA panel). They may be appointed to a full-time or part-time

role. JAs perform judicial functions for the Defence Force by acting as JA to courts martial and serving as DFMs. JAs are appointed by CDF or a service chief.

Chief Judge Advocate (CJA) The CJA is a JA who is appointed to a full-time position to provide administrative assistance to the JAG. The CJA usually also acts as a JA to

court martials and as a DFM. The CJA is appointed by the JAG. The JAG may delegate powers to the CJA.

Deputy Chief Judge Advocate (DCJA)

This is a new full-time position established by this Bill. The DCJA must be a member of the JA panel. One or more DCJAs will assist the CJA and may be appointed as acting CJA when necessary. The DCJA usually also acts as a JA to court martials and as a DFM. The DCJA is appointed by the JAG.

Registrar of Military Justice (RMJ)

The RMJ is a military legal officer who assists the JAG and CJA by providing administrative and management services in connection with charges and trials under the DFDA. The RMJ is appointed by the Minister.

Director of Military Prosecutions (DMP)

The DMP is a senior military legal officer who prosecutes service offences before superior service tribunals and represents the service chiefs before the Defence Force Discipline Appeals Tribunal. The DMP is appointed by the Minister.

Judge Advocate General

Qualification and appointment The JAG and Deputy JAGs are statutory officers appointed under subsection 179(1) of the DFDA by the Governor-General, rather than the Chief of the Defence Force (CDF), to promote independence from the chain of command.56 The independence of the JAG from the military chain of command is further ensured by funding for the Office of the JAG being provided by the Associate Secretary Group of the Department of Defence rather than through the CDF or service chiefs.57

The entire military discipline system is a proper exercise of the CDF’s power of command. Command influence refers instead to the possibility of unfairness to an accused which might arise if another ADF member of higher seniority were to express an opinion on a case, and the difference in rank might exercise unwarranted influence. Even the possibility or mere appearance of such command influence could be damaging to the integrity of the military justice system.

56. Department of Defence, Judge Advocate General: report for the period 1 January to 31 December 2017, pp. 10-11. 57. Ibid., p. 3.

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Therefore, the military justice system has senior positions and a system of review set up outside the regular chain of command.

Currently the JAG may be a civilian or a defence member and, in accordance with section 180 of the DFDA, must be, or have been, a judge of a Federal Court or state Supreme Court. The JAG need not be, or have been, a JA. To date, every JAG has been a senior legal officer of the ADF Reserve and appointed with two star rank.58

Item 8 proposes to amend section 180 of the DFDA by replacing the phrase ‘A defence member may be appointed’ with ‘A member of the Defence Force may be appointed’. This causes an expansion in the range of persons who may be appointed as a JAG. Section 3 of the DFDA defines a defence member as a person who is:

• a member of the Permanent Navy, the Regular Army or the Permanent Air Force or

• a member of the Reserves who is rendering continuous full-time service or is on duty or in uniform.

The term member of the Defence Force is defined in section 4 the Defence Act 1903 (Cth) and includes any officer, sailor, soldier and airman of the Australian Defence Force. It therefore includes Reserve personnel who are not on duty. The Explanatory Memorandum states that use of the narrower term was ‘a drafting error’.59 Given that the JAG has always been a Reserve officer, who may not be on full-time duty at appointment, it is an important amendment.

Item 9 makes an equivalent amendment to section 185 of the DFDA which relates to the remuneration of the JAG and the Deputy JAG.

Key issue—drafting inconsistency Proposed section 180 addresses the drafting error that has been identified, but it may have been preferable for the amendment to use the term officer rather than member of the Defence Force. If the person appointed as JAG is a member of the ADF he, or she, will only ever be an officer. Officer is a term defined in the DFDA itself and includes Reserve personnel who are not on duty. That term is also used in sections 188A (appointing the CJA) and 196 of the DFDA (appointing JAs) and would be a more consistent form of drafting.

Termination Items 10-12 of Schedule 1 to the Bill propose minor stylistic amendments with no substantive change to the grounds for termination in section 186 of the DFDA. The amendments make the language of the various termination provisions in the DFDA clear and consistent.

Judge advocates (including CJA and DCJA)

Terms of appointment Judge advocates are senior ADF legal officers appointed to the JA panel by CDF or a service chief, on the nomination of the JAG.60

58. Ibid., pp. 1-3, especially paragraph 6. ‘Star’ ranks are the most senior officers in the ADF. Two star rank is a Rear Admiral in the Navy, a Major General in the Army and an Air Vice-Marshal in the Air Force. CDF is usually a four star officer. See Schedule 1 of the Defence Act.

59. Explanatory Memorandum, Defence Legislation Amendment Bill 2018, p. 13. 60. DFDA, section 196(2). Although an appointment is for a maximum of three years, an officer appointed to the JA panel may be reappointed for a further period or periods.

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In the recent past, the practice of CDF has been to appoint two legal officers who are full-time members of the permanent ADF to the JA panel as well as three Reserve officers, one from each service.61 One permanent ADF legal officer is usually appointed CJA and the other permanent legal officer assigned to the JA panel assists the CJA. He or she normally also acts as a JA to courts martial and as a Defence Force Magistrate (DFM) as directed.62

JAs are currently appointed for a maximum of three years by CDF, however they may be reappointed for further terms.63

The CJA, who must hold a rank equivalent to a Navy commodore, is appointed by the JAG for a maximum term of five years.64 Item 13 of Schedule 1 to the Bill inserts proposed subsection 188A(1A) into the DFDA to clarify that the appointment is full-time. The proposed terms of appointment of a DCJA mirror those of the CJA, with the exception that the DCJA must hold a rank not lower than naval captain or its equivalent.65

Item 24 of Schedule 1 to the Bill proposes to amend subsection 196(2A) of the DFDA to increase the maximum term of appointment from three years to five years. The Explanatory Memorandum states that the amendment is to ensure that a CJA or DCJA does not need to be reappointed as a JA during their term. However, the JAG could appoint the CJA or DCJA for a period no longer than their appointment as a JA and there would be no inconsistency. The issue, therefore, appears to be that five year terms are preferable to three year terms for all JAs.

The Explanatory Memorandum is silent on this point. However, in general terms, five years may be a more appropriate term of appointment for such statutory officers since a more extended tenure might be expected to increase their independence. For the same reason the Parliament may consider it preferable for the term of appointment to be fixed by statute rather than being fixed by CDF.

Item 13 of Schedule 1 to the Bill inserts proposed subsection 188A(1A) into the DFDA to clarify that the appointment as CJA is full-time. Item 15 inserts proposed section 188AA which allows the JAG to determine any terms and conditions of office not covered by the DFDA. Proposed section 188CA of the DFDA requires the CJA to make or subscribe an oath or affirmation on appointment in the form set out in Schedule 1 to the DFDA.66

Termination of appointment Proposed subsections 196AA(1) and (2) (inserted by item 26) provide grounds for termination of the appointment of a JA including for misbehaviour, incapacity, bankruptcy, absence without leave and ceasing to be a member of the Defence Force. These are consistent with the causes for termination in section 186 which apply to the JAG. The subsections seem intended to ensure that JA’s enjoy secure tenure because their appointment to the JA panel can only be terminated by CDF

61. The majority of ADF legal officers are Reserve officers working part time in parallel to their civilian legal careers. This enhances independence in the system and ensures a broader range of legal expertise is available to CDF. The identity and service of the persons appointed to the judge advocate panel are contained in the annual reports of the JAG.

62. The role of the permanent judge advocate is discussed in the annual reports of the JAG. See for example: DoD, Judge Advocate General: report for the period 1 January to 31 December 2017, p. 4 and pp. 11-12 where the permanent judge advocate is recorded as acting as a DFM.

63. DFDA, section 196(2A)-(2B). 64. DFDA, section 188A and proposed section 188EC. A Chief Judge Advocate or a Deputy Chief Judge Advocate may be reappointed for a further period or periods, but must not hold office for a total of more than ten years. 65. DFDA, proposed subsection 188EF(1). 66. Item 16 of Schedule 1 to the Bill inserts proposed section 188CA.

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for a cause specified in the subsection. However, proposed subsection 196AA(3) provides that an appointment also ceases if the person ceases to be an officer.

In the same manner, proposed sections 188EA and 188EJ should ensure the appointments of the CJA and DCJA can only be formally terminated by the JAG for a cause specified in the subsection. However, proposed subsection 188EA(3) and 188EJ(3) also provide that the appointments cease if the person ceases to be an officer.

CDF has power under section 24 of the Defence Regulation 2016 to terminate an officer’s appointment for a range of reasons including; medical unfitness, that the member cannot usefully serve because of redundancy, and that retention of the member’s service is not in the interests of the Defence Force. Under the termination provisions as proposed, if CDF terminates a JA’s appointment as an officer, they will automatically cease to be a JA (and also cease to be a CJA or DCJA as applicable).

Proposed subsections 196AA(3), 188EA(3) and 188EJ(3) appear to undermine the intention that termination of a JA appointment can only be for the causes defined in those sections. The Explanatory Memorandum is silent on the purpose of those proposed subsections 188EA(3) and on why the CDF should have the indirect power to remove a JA, CJA or DCJA.

Key issue—independence of JAs and command influence The RMJ and the DMP are statutory officers appointed by the Minister, rather than CDF, to promote independence from command influence in the execution of their functions.67 It is an anomaly that appointment to those positions is done outside the chain of command, whereas a JA, who exercises judicial functions and should also be perceived to be free from command influence, is not.

The JAG, in his 2013, 2016 and 2017 annual reports to the Minister (and tabled in Parliament), called for JAs to be appointed for a term of years by the Governor-General in Council to afford JAs greater independence.68 The Bill does not address that issue, nor does the Explanatory Memorandum state whether the JAG’s advice has been considered. As the purpose of the JAG is to provide expertise obtained as a civilian judge in oversight of the military justice system, it is surprising that there is no reference to the JAG’s advice.

Greater judicial independence might be achieved if a JA were appointed to the JA panel for a term fixed by the DFDA and:

• as the JAG has proposed, by the Governor-General or

• by the JAG on the nomination of CDF, or by the Minister on the nomination of both the JAG and CDF.

To the extent that the JAG delegates any power to the CJA (who, as a JA, is first appointed by CDF) there is the potential for some erosion of the independence of the JAG. However, subsection 188B(3) of the DFDA ensures that the JAG’s powers to:

67. DFDA, sections 188FB and 188GF respectively. The entire military discipline system is a proper exercise of the CDF’s power of command. Command influence refers instead to the possibility of unfairness to an accused which might arise if an ADF member of higher seniority to the tribunal were to express an opinion on a case, and thereby exercise unwarranted influence because of their authority or power. Even the appearance or possibility of such command influence could be damaging to the integrity of the military justice system.

68. Department of Defence, Judge Advocate General: report for the period 1 January to 31 December 2013, p. 13; Department of Defence, Judge Advocate General: report for the period 1 January to 31 December 2016, p. 10; and Department of Defence, Judge Advocate General: report for the period 1 January to 31 December 2017, p. 19, Annex P.

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• appoint Defence Force Magistrates (subsection 127(1))

• give binding opinions of law to reviewing authorities (subsection 154(4)) and

• nominate JA’s to the JA panel (subsection 196(2))

cannot be delegated to CJA. Those provisions go a long way to preserving appropriate independence.

It is possible for the allocation of JAs to courts martial and for the allocation of Defence Force Magistrates to particular cases to be delegated to the CJA. That being the case, it could be argued that there remains scope for command influence over that duty and also over the CJA’s exercise of judicial duties. However, existing section 188C of the DFDA provides that the CJA must hold a rank of at least one star and be a member of the JA panel.69 That minimum rank, which is higher than the commanding officers of most ships or units, is important to prevent command influence.

In addition, the CJA’s term of appointment is fixed by the JAG and there is no permanent ADF legal officer position above one star rank. It would be the final appointment of a permanent ADF legal officer’s career. There could be no command influence exerted over the opportunity for promotion or other appointments. Reappointment is by the JAG, not the CDF.70

Selection of JAs There is presently no legislative requirement for any particular selection criteria or distribution of positions between the three services. It has been the practice of the JAG to nominate officers on the advice of an interview panel.71

Key issue—selection criteria are discretionary Item 25 of Schedule 1 to the Bill inserts proposed subsection 196(6) into the DFDA so that the CDF may determine, by notifiable instrument, the criteria and process for selection of a JA.72

Item 14 inserts proposed subsection 188A(4) which permits the JAG, by notifiable instrument, to determine the criteria and process for selection of the CJA.73 In the same way, proposed subsection 188EC(5) permits the JAG to determine the criteria and process for selection of the DCJA.

The Explanatory Memorandum claims that the provisions provide for enhanced transparency in how candidates for these important roles apply and are assessed.74 However, none of the proposed provisions imposes a duty on the appointer to determine a criteria and process for selection. The appointer in each case remains legally able to make appointments without engaging in any particular process. The provision will enhance transparency only if the appointers decide to use it.

69. ‘Star’ ranks are the most senior officers in the ADF. One star rank is a Commodore in the Navy, a Brigadier in the Army and an Air Commodore in the Air Force. The CDF is usually a four star officer and the service chiefs are three star officers. See Schedule 1 of the Defence Act.

70. DFDA, subsection 188A(3). 71. Department of Defence, Judge Advocate General: report for the period 1 January to 31 December 2017, p. 5. 72. Under section 7 of the Legislation Act 2003, unlike legislative instruments, notifiable instruments are not subject to parliamentary scrutiny, nor are they subject to automatic repeal ten years after registration.

73. Legislation Act 2003, section 42 provides that only legislative instruments are disallowable by the Parliament. 74. Explanatory Memorandum, Defence Legislation Amendment Bill 2018, p. 14.

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Key issue—diversity is discretionary The present JAG, Rear Admiral Justice Slattery RANR, holds the view that a mix of permanent and reserve officers on the JA panel provides a desirable mix of skills and experience.75 He has also lamented that when the position of CJA and two reserve JA positions were advertised in 2017, out of 18 applications, there was only one legally qualified female applicant for the position of CJA and one for the JA positions.76 Neither application was successful.

On 25 May 2018 when the JAG submitted his 2017 annual report, the JAG was a male Navy Reserve officer, the CJA was a male Army Reserve officer and the permanent full time JA was a male Air Force officer. There were also four male Reserve JAs; one Navy, two Army, and one Air Force; and three male Deputy JAGs, one from each service.

Item 23 of Schedule 1 to the Bill inserts proposed subsection 196(2AA) into the DFDA which requires the CDF or service chief, in making an appointment to the JA panel, to have regard to the desirability of reflecting a diversity of expertise, experience and gender among the members of the JA panel. The proposed section does not impose a duty on CDF or the service chief to achieve this diversity however does require the appointer to actively consider whether diversity on the JA panel is desirable.

Key issue—is the DCJA an additional full-time position? In his 2017 Annual Report, the JAG suggested that any future appointment of a permanent full-time JA/DFM should be supported in legislation providing for similar statutory independence to the CJA.77 Item 20 of the Bill inserts proposed Division 2A—Deputy Chief Judge Advocate into Part XI of the DFDA. Within new Division 2A, proposed section 188EC establishes one or more full time positions of DCJA. That position could provide the appropriate legislative support that the JAG advocated.

The Explanatory Memorandum does not identify statutory independence, or the JAGs advice, as the reason for creating the DCJA position, stating only that the DCJA will provide administrative support to the CJA. It is not clear whether the DCJA is intended to be an additional full-time officer position, but it is likely the provision is intended to be used to give legislative basis to the appointment of the permanent ADF full-time legal officer usually assigned to assist the CJA.

The maximum number of DCJA positions is not specified, but would be limited by the number of members of the JA’s panel not holding higher appointments (currently four, but not subject to any limitation) and funding available to the JAG for full-time positions.

Remuneration—all JA appointments Remuneration is not provided for officers who are merely appointed to the JA Panel. Instead, it is only when panel members are assigned duties as JA to a court martial or DFM or appointed to a full time position (CJA or DCJA) that remuneration becomes payable. When that occurs, remuneration is set in accordance with the Remuneration Tribunal Act 1973.

Items 3, 5, 13 and 20 of Schedule 1 to the Bill amend existing provisions of the DFDA to provide certainty for the Remuneration Tribunal by prescribing whether positions are held on a full-time or part-time basis.

75. Department of Defence, Judge Advocate General: report for the period 1 January to 31 December 2017, paragraph 16. 76. Ibid., paragraph 97. 77. DoD, Judge Advocate General: report for the period 1 January to 31 December 2017, p. 19, para 83.

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Items 4, 7 and 20 of Schedule 1 to the Bill insert standardised remuneration provisions into the DFDA and clarify the remuneration for judge advocates assisting courts martial (at proposed section 118) and for Defence Force magistrates (at proposed section 127A). The Remuneration Tribunal is empowered to determine the remuneration for each of the appointments under the DFDA. Use of this forum, which is independent of the Minister and CDF, enhances the independence of these statutory officers. If no determination of the Remuneration Tribunal is in operation, the drafting formula for remuneration is different to the one currently applied in the DFDA for other statutory appointments.

In the DFDA, in the absence of a determination, the JAG and Deputy JAGs, the CJA, RMJ and DMP are to be paid the remuneration prescribed by the Governor-General in regulations.78

Schedule 2 proposes a different formula apply to a JA of a court martial, a DFM, and the DCJA: in the absence of a determination, these officers are to be paid the remuneration that is determined by the Minister under Part IIIA of the Defence Act 1903.79 This formula has been used because those officers are currently paid under a Ministerial determination and this formula allows that arrangement to continue until the Remuneration Tribunal makes a determination.80

Allowances, however, will continue to be determined by the Minister under Part IIIA of the Defence Act.

The proposed remuneration changes make the DFDA provisions clear and consistent for each appointment and are administratively convenient. There is no negative impact on the independence of the statutory officers.

Registrar of Military Justice and Director of Military Prosecutions Items 21 and 22 in Schedule 1 to the Bill propose minor amendments to modernise the terminology in provisions for terminating the appointment of the RMJ and DMP respectively in the event the officer is unable to perform their duties due to physical or mental incapacity. The provisions are consistent with the other termination provisions in the DFDA and for statutory officers generally.

There are no other amendments in relation to the RMJ and DMP.

Schedule 2—Defence Reserves

What the Bill does Schedule 2 of the Bill proposes amendments to the DRS Protection Act concerning the investigation and resolution of complaints about discrimination against ADF Reserve members or hindering of their reserve service. Some of the provisions are currently contained in Defence Reserve Service (Protection) Regulations 2001 (DRS Protection Regulations) but are being moved either into the Act or into rules made by the Minister.

Commencement The amendments in Schedule 2 to the Bill commence on the 28th day after Royal Assent.

78. DFDA, sections 185, 188E, 188FG, 188GK. 79. Schedule 2, proposed sections 118, 127A and 188EI. 80. Explanatory Memorandum, Defence Legislation Amendment Bill 2018, pp. 12-13.

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Background The DRS Protection Act was established to support a greater need to use the Reserves by providing ‘for the protection of the reserves in their (primary) employment and education. It facilitates their return to civilian life’.81

The DRS Protection Act sets out the entitlements and prohibitions that apply in relation to people who are rendering, or have rendered, defence service as members of the Reserves. For instance:

• Part 5 provides that the member’s employment status and entitlements, such as accrued leave, are protected82

• Part 6 protects members from having their partnership dissolved while they are absent on defence service83 and

• Part 7 allows a member to re-enrol in, and resume a course of education that was interrupted because they were undertaking defence service.84

The DRS Protection Act provides additional protections for members who are rendering full time continuous services as a result of a call out or who are rendering full time continuous service that is operational service.85

A complaints and mediation scheme was established at the time that the DRS Protection Regulations were initially made in 2001. In 2017, section 72B was inserted into the DRS Protection Act to ensure that the current practice, whereby the Office of Reserve Service Protection receives, investigates and mediates complaints, had clear legislative authority.86

Senate Standing Committee for the Scrutiny of Bills During scrutiny of the 2017 amending legislation, the Senate Standing Committee for the Scrutiny of Bills expressed the view:

... significant matters, such as complaints and mediation processes (compliance with which can be enforced through offence and civil penalty provisions), should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee notes that rather than amending the Act to provide clear legislative authority to make the DRS (Protection) Regulations, it would instead be possible to remake the relevant provisions of the DRS (Protection) Regulations in the primary legislation.

87

In response, the Minister advised:

... that the review gave no consideration to moving the complaints and mediation scheme into the principal legislation, so this was not considered when the Bill was drafted. However, the Minister indicated that Defence will review the complaints and mediation scheme being moved from the regulations into the principal legislation following implementation of the Bill and prior to the Regulations sunsetting on 1 October 2019.

88

81. MA Neilsen and S O’Neill, Defence Reserve (Protection) Bill 2000, Bills digest, 71, 2000-01, Department of the Parliamentary Library, Canberra, 2000, p. 1. 82. DRS Protection Act, subsection 24(2). 83. Ibid., subsection 34(2). 84. Ibid., subsection 37(2). 85. For the purposes of the DRS Protection Act, call out refers to the calling out and directing the utilisation of the Defence Force

under Part IIIAAA of the Defence Act 1903. 86. Defence Legislation Amendment (2017 Measures No. 1) Act 2017; Explanatory Memorandum, Defence Legislation Amendment (2017 Measures No. 1) Bill 2017, p. 29. 87. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, 9 May 2017, pp. 21-22. 88. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 6, 2017, 14 June 2017, p. 102.

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Sunsetting of regulations Consistent with this undertaking, the Minister will allow the current DRS Protection Regulations to sunset (or repeal them). Item 37 of Schedule 2 to the Bill repeals and replaces section 81 of the DRS Protection Act so that the current regulation making power becomes a rulemaking power vested in the Minister. The proposed rulemaking power explicitly precludes the making of rules which create penalties or coercive powers. According to the Explanatory Memorandum to the Bill ‘only the provision relating to the cap on loans and guarantees under Part 8 of the Act, will need to be re-made in the rules’.89

The Regulations contain provisions setting up the Office of Reserve Service Protection. However it is not necessary for that office to have a statutory basis since it is not independent of the Minister or CDF. The Office can be set up and administered with the ordinary powers of control and administration of the Minister.

Amendments to Part 11—Enforcement and remedies Part 11 of the DRS Protection Act relates to enforcement and remedies. Within Part 11, Division 1B currently deals with complaints and mediation. Item 3 of Schedule 2 to the Bill renames Division 1B because it now deals with complaints and investigations. Item 4 inserts proposed sections 72B-72H which will set out the processes for making and investigating complaints. In addition, item 4 inserts proposed Division 1C which is about dispute resolution. Both Divisions confer coercive powers on CDF which may be applied to a civilian individual or body corporate. Some, but not all, of the powers are subject to oversight by a court.

Schedule 2 of the Bill proposes that CDF acquire, with respect to persons whose interests are affected by the DRS Protection Act, the power to:

• investigate complaints: proposed section 72C

• issue a notice to produce information or documents: proposed section 72D

• copy, retain and disclose the information or documents produced: proposed sections 72F and 72G

• seek a civil penalty order from a relevant court if a person fails to produce the information or documents: proposed section 72E

• direct a person to attend a compulsory conference: proposed sections 72J - 72L and

• seek a civil penalty order from a relevant court if a person fails to attend a compulsory conference: proposed section 72L.

Pecuniary penalties If, during the process of investigation or dispute resolution, CDF exercises a discretion to issue a notice to obtain information, and the person does not comply with the notice; CDF has no power to impose a penalty or compel compliance. CDF can apply to a relevant court for a penalty to be applied or an injunction that the person comply with the notice or that they pay a penalty. The amount of any penalty is determined by the Court.

Proposed section 72E sets a maximum civil penalty of 100 penalty units (each penalty unit is currently $210, so a maximum fine of $21,000) for refusal to comply with a notice to produce information or documents under proposed subsection 72D(2).90

89. Explanatory Memorandum, Defence Legislation Amendment Bill 2018, p. 25. 90. Crimes Act 1914 (Cth), section 4AA.

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A penalty can be justified in circumstances where a refusal to comply is likely to frustrate the investigation of a complaint. The maximum is intended to be sufficiently high to be a disincentive for even a large corporate employer.91

This provision was previously framed as a criminal offence in the DRS Protection Regulations. A criminal offence is not necessary since an injunction to produce the relevant documents can be sought.

Division 1A—overview of Part Item 2 in Part 1 to Schedule 2 to the Bill repeals existing section 72A(1) and inserts proposed subsections 72A(1) and 72A(1A) of the DRS Protection Act to provide an overview of the operation of proposed Divisions 1B and 1C. Unfortunately those subsections do not accurately describe the operation of those divisions.

Proposed subsection 72A(1) states that a person may make a complaint to CDF. Proposed subsection 72A(1A) states that CDF may investigate ‘disputes between persons whose interests are affected by a provision of this Act’ and establish dispute resolution services for the purpose of resolving such disputes.

Key issue—apparent drafting error The Bill empowers the CDF to investigate:

• a complaint made under section 72B: proposed paragraph 72C(1)(a) and

• a suspected contravention of a provision of the Act whether or not a complaint has been made: proposed paragraph 72C(1)(b).

Proposed paragraph 72C(1)(b) appears to be a wider power than is described in the amendments to the overview of Part 11 because proposed subsection 72A(1A) refers to investigation of ‘disputes’ rather than ‘suspected contraventions’. ‘Dispute’ is not defined in the DRS Protection Act or in the amendments in Schedule 2 to the Bill. In the law of statutory interpretation, a difference in wording between sections often implies a difference in meaning. It is difficult to say whether ‘disputes between persons whose interests are affected by a provision of this Act’ has the same meaning as ‘a suspected contravention of this Act’ but it seems unlikely.

For the purposes of statutory interpretation, the overview of Part 11 in proposed subsection 72A(1A) might be treated in the same manner as a heading, or alternatively, as indicating a purpose or object. Either interpretation might then limit the apparently broader grant of power in proposed paragraph 72C(1)(b).92

It is possible that proposed subsection 72A(1A) could result in some restriction of the broad power granted in proposed paragraph 72C(1)(b). The investigative power in proposed paragraph 72C(1)(b) is the foundation for the notice to produce and the civil penalty provision in proposed section 72E. Parliament might prefer to provide clearer guidance to users of the legislation about the intended scope of the investigative power by ensuring the wording in the two provisions agrees that ‘suspected contraventions’ of the DRS Protection Act can be investigated.

91. Explanatory Memorandum, Defence Legislation Amendment Bill 2018, p. 8. 92. Acts Interpretation Act 1901 (Cth), section 15AA; DC Pearce and RS Geddes, Statutory interpretation in Australia, LexisNexis Butterworths, Sydney, 2014, pp. 178-179, 197-198.

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Division 1B—Complaints and investigations The amendments to Division 1B of Part 11 provide CDF with a broad discretion in dealing with complaints:

• CDF may deal with a complaint as he, or she thinks fit, as long as the complaint has been made in the appropriate manner and form: proposed subsections 72B(2) and (3)

• CDF is not required to investigate such a complaint: proposed subsection 72C(2) and

• an investigation may be conducted in a way that CDF thinks fit, and the CDF may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as he or she thinks fit: proposed subsection 72C(3).

The combined effect of these provisions is that CDF is not compelled to receive any particular complaint and, if he or she does accept the complaint, is not compelled to investigate it or to take any action, regardless of the outcome of the investigation. That may be an appropriate discretion to allow CDF to refuse to investigate complaints that are not covered by the DRS Protection Act or are frivolous or vexatious.

Proposed subsection 72D(2) of the DRS Protection Act empowers CDF to issue a notice requiring a person to provide information or to produce a document. Under proposed section 72F CDF may inspect, copy and retain copies of any document.

CDF may also disclose personal information to the persons or entities and for the relevant purposes that are set out in table form in proposed section 72G. Importantly, Item 2 in the table allows CDF to release information which would identify the individual Reservist to their employer. CDF may:

• release information to a person who is alleged to have contravened or who is suspected of contravening the DRS Protection Act (or their legal representative)

• if the disclosure is reasonably necessary for the purpose of informing the person of the results of the investigation.

That appears appropriate given that the nature of complaints and contraventions of the DRS Protection Act mean that identification of the individual Reservist affected will be necessary to investigate the circumstances.

Key issue—constitutional issues re coercive powers The Bill operates to give CDF coercive powers that may be exercised over persons (individuals and corporations) who are not members of the Defence Force and are not within the class of persons defined as defence civilians. The exercise of the power is not confined to circumstances affecting operations, call out of the ADF, or wartime, any of which might expand the scope of the defence power.93 CDF is specifically empowered by the Defence Act to command and administer the ADF Reserve. However, a reasonable legal argument can be made that the amendments to the DRS Protection Act go beyond those statutory functions in that they seek to regulate the relationship between civilian employers or educational institutions and Reservists not on duty.94

Although it is likely that Parliament has power under paragraphs 51(vi) and 51(xxxix) of the Constitution to enact the amendments in Schedule 2 to the Bill, the power is not beyond doubt. In the event of a controversy in relation to the DRS Protection Act, a court would ask whether

93. See the discussion of the scope of the defence power above, under the heading Background—key constitutional issues. 94. Reservists not on duty are not subject to ADF discipline and are considered civilians in that context.

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enacting coercive powers over civilian employers and others goes further than is necessary to achieve the purpose of protecting members of the Reserves.

There is a strong argument that the coercive powers are reasonable and proportional, and therefore constitutionally valid under the defence power, as they ensure that the ADF is not obstructed in training Reservists in order to prepare the nation for war, even if war is not imminent.95 However, by empowering a military officer to use coercive powers over civilians in peacetime when that is not absolutely necessary, there is a risk of Parliament exceeding the peacetime scope of the defence power.

The civil penalty provisions in proposed sections 72E and 72L include constraints to avoid offending constitutional requirements for due process and separation of judicial and executive power. The sections do not explain who can impose the penalty, however section 76A of the DRS Protection Act makes all civil penalty provisions enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).

The Regulatory Powers Act enables an authorised applicant to apply to a relevant court for an order that a person in breach of a civil penalty provision pay a pecuniary penalty.96 Proposed subsection 76A(2) makes the CDF an authorised applicant.97

Parliament may wish to consider whether it is desirable to grant all the investigatory and coercive powers to the defence organisation rather than to CDF.

Key issue—investigation may be seen as biased There is a risk of perceived bias where an investigative agency has a strong direct interest in the matter under investigation. This could possibly arise for example, where a small business owner employing a Reserve soldier feels that the military is unfairly using their resources to enforce, on behalf of the soldier, their own view that Reserve service has primacy over other obligations.

Parliament may wish to consider whether the powers in proposed subsection 72D(2) and section 72F, would be more appropriately given to the Minister or Secretary rather than CDF.

Key issue—assignment of statutory duty apparently outside statutory duty CDF is a statutory officer appointed under the Defence Act and given a duty to command and administer the ADF.98 The investigatory and dispute resolution duties assigned here to CDF may be outside those statutory duties. Parliament probably has power to assign duties to CDF in other legislation that are outside the functions assigned in the Defence Act. However, confining CDF’s statutory duty to his or her principal statutory functions ensures no conflict or confusion can arise. Parliament might consider whether there is another statutory officer for whom these duties would be a better fit.

Division 1C—Dispute resolution The DRS Protection Regulations currently provide in section 22 only for limited voluntary mediation. Proposed Division 1C involves a substantial expansion of power because it allows CDF to conduct mediation, conciliation and compulsory conferences.

95. The extent of the power and the test to be used are discussed by Griffith CJ in Farey v Burvett, op. cit. 96. Relevant court means all state and territory courts and the Federal Court or the Federal Circuit Court. 97. Item 30 in Part 2 of Schedule 2. 98. Defence Act, sections 12, 9 and 10.

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The question of whether it is desirable for Parliament to vest coercive powers over civilians in CDF in peacetime is discussed above under the heading Key issue—inappropriate coercive powers over civilians in peacetime.

Part 2—Other Amendments

Prescribed authorities and prescribed persons The amendments propose to nominate ‘CDF’ instead of using ‘prescribed person’ and ’prescribed authority’ throughout the DRS Protection Act. Under the current Regulations, the ’prescribed authority’ was the Office of Reserve Service Protection. Appointing CDF instead and allowing CDF to delegate functions under proposed subsections 79(2) and 79(3) which are inserted by item 35 of Part 2 in Schedule 2 to the Bill provides additional flexibility in administration of the Act and avoids the need for regulations or rules specifying the authority. The Office of Reserve Service Protection or another authority can be set up and funded with the ordinary powers of control and administration of the CDF and CDF can the delegated to that authority.

If Parliament were to vest responsibilities in the Minister or Secretary, rather than CDF, the amendments in items 10-36 would need to be redrafted.

Annual reporting requirement Item 36 in Part 2 of Schedule 2 to the Bill inserts proposed section 79A to introduce an annual reporting requirement. The effect of the amendment is to require that a report on the administration and operation of the DRS Protection Act is included in the Defence Annual Report.

Part 3—Application, saving and transitional provisions The amendments in Part 3 of Schedule 2 to the Bill ensure that complaints and investigations dating from before commencement of the amendments can continue. Once again, if Parliament is minded to vest responsibilities in the Minister, rather than CDF, items 39-43 will need to be reconsidered.

Schedule 3—Other Amendments Schedule 3 of the Bill proposes a number of miscellaneous amendments to the DFDA. None of the amendments make substantive changes. They are intended to clarify provisions and ensure the DFDA works as intended with other Acts.

All the items would seem uncontroversial and adequately explained in the Explanatory Memorandum.

Commencement The amendments in Schedule 3 to the Bill commence on the day after Royal Assent.

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