The military justice system in Australia

The military justice system in Australia

Frank B. Healy

When the British Government established a penal colony in Australia in 1788, the sailors and soldiers who accompanied the transported prisoners were governed by the English Mutiny Act and the Articles of War that were in force at the time. Following the withdrawal of the English naval and military forces in 1870, an Australian military legal system began to evolve. Before federation on 1 January 1901, there were separate State naval and military forces. These forces were governed by State legislation that closely followed the English system. Following federation, the Commonwealth naval and military forces were established. Until 1985 the separate forces were governed by Commonwealth legislation. That legislation incorporated the respective English legislation for each of the forces. Although work had commenced on developing an Australian military justice system before World War II, it was not until 3 July 1985 that such a system came into force. This paper describes the current Australian system.

I. DEVELOPMENT OF AUSTRALIAN MILITARY LAW

Following the settlement of Australia in 1788, the provisions of the Mutiny Act of England that was in force at the time governed the British troops who were in the Colony. It was not until 1870 that the English naval and military forces were withdrawn from Australia. (1) With the formation of the various Colonies of Australia, Colonial Navies and Colonial Armies were raised, and these were governed by the appropriate Colonial legislation. (2) This legislation provided for military offences such as desertion and mutiny. (3)

With the federation of the various States into the Commonwealth of Australia in 1901, a statute of the Parliament of Great Britain, namely the Commonwealth of Australia Constitution Act 1900 (UK), (4) provided Australia with a written Constitution. Section 68 of the Constitution provides, “The Commander-in-Chief of the Naval and Military Forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.” Thus the Governor-General personally has the ultimate executive authority over such of the Australian Defense Forces as exists from time to time.

The Constitution also specifies the powers of the Australian Parliament. Placitum (vi) of section 51 of the Constitution grants Federal Parliament exclusive powers, namely, the “[p]ower to make laws for the peace, order and good government of the Commonwealth with respect to the Naval and military defense of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. Pursuant to this power, the Federal Parliament enacted the Defense Act 1903 (Cth), the Naval Defense Act 1910 (Cth), and the Air Force Act 1923 (Cth). The Defense Act 1903 (Cth) provided that the State Acts relating to defense forces ceased to apply. (5) It also authorized the Governor-General to make regulations for securing the discipline and good government of the Defense Force, (6) and, pursuant to this power, the Australian Military Regulations were made in 1904, (7) the Naval Regulations in 1906, (8) and the Air Force Regulations in 1922. (9) The Air Force Regulations were made under the Air Force Act 1923 (Cth) in 1927, (10) and the Naval Forces Regulations under the Naval Defense Act 1910 (Cth) in 1935. (11) The Regulations predominantly dealt with the organization and administration of the respective services.

The Defense Act 1903 (Cth) governed the raising and maintenance of the Australian Military Forces, and was the source of military law applicable to those forces. However, with time, the separate branches of the Australian Military Forces became subject to the jurisdiction of separate legislation. (12) However, all services eventually became subject to the Defense Force Discipline Act 1982 (Cth). Even so, a brief history of each service’s past is still worth noting.

A. Navy

Initially, the Defense Act 1903 (Cth) applied to the Navy (13) and made applicable the provisions of the Naval Discipline Act 1866 (UK). (14) This situation remained unaltered following the passing of the Naval Defense Act 1910 (Cth). (15)

However, in 1964, the provisions of the Naval Discipline Act 1957 (UK) (16) were made applicable to the Navy, (17) and those provisions continued to apply until repealed in 1985. (18) Since 3 July 1985, discipline in the Navy has been governed by the Defense Force Discipline Act 1982 (Cth).

B. Army

The Defense Act 1903 (Cth) applies to the Army. (19) By it, the provisions of the Army Act 1881 (UK) (20) were made applicable to the Army while its members were on active service. (21) In 1917 the Defense Act 1903 (Cth) was amended, and the law in relation to discipline that applied to the Army depended on whether the Army was on war service or not (22) with the only significant difference between the legislation that was applicable in time of peace and that which was applicable in time of war was that the available punishments were greater in time of war. At that time, the Army was governed by:

1. The Defense Act 1903 (Cth);

2. The regulations made pursuant to the Defense Act 1903 (Cth); and

3. So much of the Army Act 1881 (UK) and Rules of Procedure, not being inconsistent with 1 and 2, as were applied by section 88 of the Defense Act 1903 (Cth).

The Defense Act 1903 (Cth) gave the Governor-General power to constitute a Board of Administration for the Military Forces, which was called the Military Board, and prescribed the powers and functions with which the Board could be invested. (23) By virtue of the powers given to the Military Board by the Australian Military Regulations, the Military Board regulated the administration of the Military Forces by the Australian Military Orders, the Military Board Instructions, and Army Routine Orders. The provisions of the Army Act 1881 (UK) (24) continued to apply to the Army until repealed in 1985. (25) Since 3 July 1985, discipline in the Army has been governed by the Defense Force Discipline Act 1982 (Cth).

C. Air Force

Following the formation of the Australian Air Force on 31 March 1921, it was made subject to the Defense Act 1903 (Cth). (26) It was specifically provided that the Army Act 1881 (UK) (27) did not apply to members of the Air Force. (28)

However, in 1939, the provisions of the Air Force (Constitution) Act 1917 (UK), (29) in force on 15 December 1939, were made applicable to the Air Force, (30) and provisions continued to apply until repealed in 1985. (31) Since 3 July 1985, discipline in the Air Force has been governed by the Defense Force Discipline Act 1982 (Cth).

Thus, while each of the three Services was initially subject to the Defense Act 1903 (Cth), the Navy and the Air Force were subsequently granted their own legislation. However, the administration of discipline in all three Services was effectively governed by the respective English legislation, by reference in the Australian law, until 1985. Since 1985 all three arms of the Australian Defense Force have come under the provisions of the Defense Force Discipline Act 1982 (Cth).

II. THE DEFENCE FORCE DISCIPLINE ACT 1982 (CTH)

The Defense Force Discipline Act 1982 (Cth) (the Act) set up a hierarchy of service tribunals and conferred upon them a comprehensive system of discipline law that reflected civilian criminal standards and processes. (32) The service tribunals have the power to try members of the Australian Defence Force on charges of service offences against the Act. Civilians accompanying the Australian Defence Force outside Australia or on operations against the enemy are also subject to the Act in certain circumstances. (33) Civilians are not otherwise liable to be tried by service tribunals, nor are any offences created by the Act triable by civil courts.

The Act also provides for related matters such as investigation of offences, (34) suspension from duty, (35) powers of arrest, (36) power to order restitution of stolen property (37) or payment of reparation for damage or loss caused, (38) conviction without punishment, (39) approval of certain punishments by higher authority, (40) suspension and remission of punishments, (41) execution and enforcement of punishments and parole. (42)

III. AUSTRALIAN SERVICE TRIBUNALS

Having described the general purport of the Act, it is appropn ate to detail the tribunals and appointments that are empowered to deal with military offences. The Australian service tribunals that are available under Part VII of the Act, in a descending order in relation to the jurisdiction that is granted to them, are:

1. General Court-Martial;

2. Restricted Court-Martial;

3. Defense Force Magistrate;

4. Superior Summary Authority;

5. Commanding Officer;

6. Subordinate Summary Authority; and

7. Discipline Officer.

Although a discipline officer does not constitute a service tribunal for the purposes of the Act, (43) the provisions relating to them will be dealt with in this section for completeness. Each of these tribunals shall be examined in turn, and the issues of how they are convened or appointed, their composition, their jurisdiction, and the punishments that they may impose shall be addressed. Subordinate Summary Authorities, Commanding Officers, and Superior Summary Authorities, as a group, are classed as Summary Authorities, (44) but each will be dealt with separately.

However, before examining these matters, it is important to note that the Act speaks of “dealing with” and “trying” charges. (45) These are distinct and separate processes. In dealing with a charge, a tribunal has to determine whether to try the charge, dismiss it, or direct that it not be proceeded with, or to refer it to a more appropriate tribunal for trial. In any event, a tribunal may not try a charge unless the Act grants it jurisdiction to do so.

A. General Court Martial

A general court martial is not a standing tribunal, but is appointed, or convened, by a convening authority on an ad hoc basis. (46) Where a charge is referred to a convening authority, they may direct that the charge be not proceeded with; refer the charge to a superior summary authority or to a commanding officer for trial (where the charge is within their jurisdiction); refer the charge to a Defense Force magistrate for trial; or convene either a general court martial or a restricted court martial to try the charge. (47)

A general court martial is composed of a president and not less than four other members. (48) In order to be eligible to sit on a general court martial, members of the Australian Defense Force must meet a number of specified requirements. First, they must be officers. (49) Secondly, they must have been officers for a continuous period of not less than three years or for periods amounting in the aggregate to not less than three years. (50) And finally, no member may be of a rank that is lower than that of the accused, (51) and the President must hold a rank of at least the naval rank of captain or the rank of colonel or group captain. (52)

A general court martial may try any charge against any person, except for custodial offences and the offences specified in section 63 of the Act, which offences include treason, murder, manslaughter, bigamy, and certain sexual offences in respect of which proceedings under the Act may not be instituted without first obtaining the consent of the Director of Public Prosecutions. (53) A general court martial may impose, in decreasing order of seventy: (54)

1. Imprisonment for life.

2. Imprisonment for a specific period.

3. Dismissal from the Defense Force.

4. Detention for a period not exceeding two years.

5. Reduction in rank.

6. Forfeiture of service for the purpose of promotion.

7. Forfeiture of seniority.

8. A fine not exceeding the amount of the convicted person’s pay for 28 days.

9. Severe reprimand.

10. Reprimand.

B. Restricted Court Martial

Like a general court martial, a restricted court martial is not a standing tribunal, but is convened on an ad hoc basis to try charges. Additionally, they also are appointed, or convened, by an officer appointed in writing by a chief of staff to be a convening authority. (55)

A restricted court martial is composed of a president and not less than two other members. (56) The eligibility requirements to sit on a restricted court martial are essentially the same as for a general court martial. However, in this case the president must hold a rank of at least commander, lieutenant colonel or wing commander. (57) A restricted court martial has the same jurisdiction as a general court martial, but its powers of punishment are less severe. (58) The punishments are: (59)

1. Imprisonment for a period not exceeding six months.

2. Dismissal from the Defense Force.

3. Detention for a period not exceeding six months.

4. Reduction in rank.

5. Forfeiture of service for the purpose of promotion.

6. Forfeiture of seniority.

7. A fine not exceeding the amount of the convicted person’s pay for 28 days.

8. Severe reprimand.

9. Reprimand.

C. Defense Force Magistrate

Defense Force magistrates are appointed from the judge advocates’ panel by the Judge Advocate General. Upon the nomination of the Judge Advocate General, officers may be appointed as members of the judge advocates’ panel by instrument in writing signed by a chief of staff. (60) Following appointment to the panel, officers are required to take an oath or affirmation of office. (61) Officers who are members of the judge advocates’ panel may in turn be appointed as Defense Force magistrates by the Judge Advocate General by instrument in writing, and following such appointment, they are again required to take an oath or affirmation of office. (62)

Defense Force magistrates sit alone when hearing charges under the Act that are referred to them for trial by a convening authority. (63) They have the same jurisdiction and powers as a restricted court martial, including the powers of the judge advocate of a restricted court martial. (64) Similarly, the punishments that may be imposed by Defense Force magistrates are the same as for a restricted court martial. (65)

D. Superior Summary Authority

Superior summary authorities are also appointed by instrument in writing, but by a chief of staff. (66) With the exception of prescribed offences, (67) superior summary authorities have jurisdiction to try a charge against an officer who is two or more ranks junior to them, being an officer of or below the rank of lieutenant commander, major or squadron leader. (68) They may also try a charge against a warrant officer or against a person who is not a member of the Defense Force. (69) However, superior summary authorities may only try charges that are within their jurisdiction and that have been referred to them by a convening authority or by a commanding officer (70)–they do not have jurisdiction to try a charge at first instance. The punishments that may be imposed by superior summary authorities, in decreasing order of severity, are(71):

1. A fine not exceeding the amount of the convicted person’s pay for 14 days.

2. Severe reprimand.

3. Reprimand.

E. Commanding Officer

Commanding officers derive disciplinary powers by virtue of their military appointment as a commanding officer. They have jurisdiction to deal with any charge against any person(72) and may try a charge against a member of the Defense Force who is two or more ranks junior to them, being a member of or below the naval rank of lieutenant, the military rank of captain or the rank o flight lieutenant, in respect of a service offence that is not a prescribed offence.(73) Additionally, they may try a charge against a person who is not a member of the Defense Force in respect of a service offence that is not prescribed offence.(74) They are also required to try a charge that is within their jurisdiction and that is referred to them for trial by a convening authority or by a subordinate summary authority.(75)

The punishments that may be imposed by commanding officers depend upon the Service to which the convicted person belongs and their rank and also, in respect of elective punishments,(76) upon whether the convicted person elected to be tried or punished by the commanding officer.(77) The range of available punishments, beginning with the maximum is:(78)

1. Detention for a period not exceeding 42 days.

2. Reduction in rank.

3. Forfeiture of seniority.

4. A fine not exceeding the amount of the convicted person’s pay for 28 days.

5. Severe reprimand.

6. Restriction of privileges for a period not exceeding 14 days.

7. Stoppage of leave for a period not exceeding 21 days.

8. Extra duties for a period not exceeding 7 days.

9. Extra drill for not more than two sessions of 30 minutes each per day for a period not exceeding 3 days.

10. Reprimand.

F. Subordinate Summary Authority

A subordinate summary authority is appointed by instrument in writing by a commanding officer. (79) Their jurisdiction is limited to that granted to them by their instrument of appointment. First, they may deal with a charge against a member of the Defense Force who is not an officer in respect of any service offence of a kind that is notified in their instrument of appointment. (80) Secondly, they may deal with a charge against a prescribed officer, namely an officer who is included in a prescribed class of officers and receiving instruction or training, in respect of any service offence of a kind that is notified in their instrument of appointment. (81) Thirdly, they may try a charge against a member of the Defense Force who is of, or below, the rank of leading seaman or corporal in respect of a service offence other than a prescribed offence, (82) of a kind that is notified in their instrument of appointment. (83) Finally, they may try a charge against a prescribed officer in respect of a service offence, again with the exception of a prescribed offence, of a kind that is notified in their instrument of appointment. (84)

As with a commanding officer, the punishment that may be imposed by a subordinate summary authority in a particular case is dependent upon the Service to which the subordinate summary authority belongs, their rank, their official appointment, the Service to which the accused belongs, and the rank of the accused. Beginning with the most severe, the range of available punishments are: (85)

1. A fine not exceeding the amount of the convicted person’s pay for 7 days.

2. Severe reprimand.

3. Restriction of privileges for a period not exceeding 14 days.

4. Stoppage of leave for a period not exceeding 21 days.

5. Extra duties for a period not exceeding 7 days.

6. Extra drill for not more than two sessions of 30 minutes each per day for a period not exceeding 3 days.

7. Reprimand.

G. Discipline Officer

The provisions relating to a discipline officer were inserted as Part IXA of the Act in 1995. (86) Although a discipline officer does not constitute a tribunal under the provisions of Part VII of the Act and a finding of guilt and the imposition of a penalty does not constitute a conviction under the Act, reference to the discipline officer is included for completeness.

A hearing before a discipline officer does not attract the formalities that apply to hearings before service tribunals. The aim is to achieve the dispensation of punishment for minor disciplinary infringements in an efficient and timely manner. (87) Accordingly, members must elect to be dealt with by a discipline officer to be subject to their decisions. A defense member who elects to be dealt with by a discipline officer must admit the breach and may not be represented at the hearing, but may call witnesses and present evidence in mitigation of punishment. (88)

A discipline officer may deal with defense members in respect of “disciplinary infringements” that are offences against several specified sections of the Act and may impose one of a number of available minor penalties in respect thereof. (89)

A commanding officer may, in writing, appoint any officer or a warrant officer as a discipline officer. (90) A discipline officer has jurisdiction to deal with a defense member who holds a rank below non-commissioned rank in respect of a disciplinary infringement where the member has not been charged with a service offence in respect of the act or omission in question and where the member has elected to be dealt with by a discipline officer. (91) The punishments that may be imposed by discipline officers, in a decreasing order of severity, are: (92)

1. A fine not exceeding the amount of a member’s pay for one day.

2. Restriction of privileges for a period not exceeding two days.

3. Stoppage of leave for a period not exceeding three days.

4. Extra duties for a period not exceeding three days.

5. Extra drill for not more than two sessions of 30 minutes each per day for a period not exceeding three days.

6. A reprimand.

IV. STATUTORY APPOINTMENTS

In addition to the appointment of judge advocates and Defense Force magistrates already mentioned, the Act also provides for the appointment of a Judge Advocate General and Deputy Judge Advocates General. Details of these appointments will now be considered.

A. Judge Advocate General

The Judge Advocate General is appointed either on a full or part-time basis by the Governor-General and has such functions, powers and duties as are conferred by the Act or any other law. (93) The Judge Advocate General holds office for such period, not exceeding seven years, as is specified in their instrument of appointment, provided that that period does not extend beyond the day on which they attain the age of 65 years. (94) In order to qualify for appointment as Judge Advocate General, a person must be or have been a Justice or Judge of a federal court or of a Supreme Court of a State or Territory. (95) The Governor-General may terminate the appointment of the Judge Advocate General if their appointment as a Justice or Judge of a federal court or of a Supreme Court of a State or Territory is terminated by reason of misbehavior, physical or mental incapacity, or bankruptcy. (96) A Judge Advocate General who is a Justice or Judge of a federal court or of a State Supreme Court or Territory ceases to hold o ffice if they no longer hold office as such a Justice or Judge. (97)

B. Deputy Judge Advocates General

The Governor-General may also appoint one or more Deputy Judge Advocates General, who also may hold their appointments either on either a full or part-time basis. (98) Their term of appointment (99) and their qualification for appointment are essentially the same as for the Judge Advocate General, except that a person need not be a justice or judge–a person who has been enrolled as a legal practitioner for less than five years is eligible.’00 Their appointment may be terminated or terminates on the same grounds as for the Judge Advocate General, with the additional ground that a Deputy Judge Advocate General who is not a Justice or Judge of a federal court or of a Supreme Court of a State or Territory ceases to hold office if they cease to be a legal practitioner. (101)

C. Judge Advocate

In proceedings before a court martial, the judge advocate is required to give any ruling, and exercise any discretion that, in accordance with the law in force in the Jervis Bay Territory of Australia, would be given or exercised by a judge in a trial by jury, and must sit without the members of the court martial where that would be the practice in a trial by jury. (102) A ruling given by the judge advocate is binding on the court martial. (103) In addition to the requirements of the Act, the Regulations, or the Rules, the functions of the judge advocate are: (104)

1. To be present at all sittings of the court martial;

2. To preside over all hearings conducted in the absence of the members of the court martial, and to ensure, at all such hearings, that the proceedings are conducted in accordance with the Act and the Rules and in a manner befitting a court of justice; and

3. To ensure that an accused person who is not represented does not suffer any undue disadvantage as a consequence of that fact; and to ensure that a proper record of the proceedings is made and that the record of proceedings and the exhibits, if any, are properly safeguarded.

D. Defense Force Magistrate

In addition to any functions conferred on them by the Act, the Regulations, or any other rule, the functions of a magistrate at any proceedings before them are to ensure that the proceedings are conducted in accordance with the Act and the Rules and in a manner befitting a court of justice; that an accused person who is not represented does not, in consequence of that fact, suffer any undue disadvantage; and that a proper record of the proceedings is made and that the record of proceedings and the exhibits, if any, are properly safeguarded. (105)

V. IMPORTANT APPOINTMENTS

A. President

The president of a court martial has a duty to ensure that the proceedings are conducted in accordance with the Act and the Rules and in a manner befitting a court of justice; to speak on behalf of the court martial in announcing a finding or sentence or any other decision taken by the court martial; and to speak on behalf of the members of the court martial in conferring with, or requesting advice from, the judge advocate on any question of law or procedure. (106) In proceedings before a court martial, with the exception of matters that are specifically reserved for determination by the judge advocate, the president presides. (107)

B. Prosecutor

The prosecutor is required to provide the accused person with notice and particulars of any evidence that the prosecution intends to adduce at the trial that was not contained in the written statements furnished to the accused person (108) before they initially appeared before a summary authority. (109) Where the prosecutor decides not to call a prosecution witness to give evidence as notified to the accused person, the prosecutor must, if practicable to do so before the trial, inform the accused person accordingly, and that they may call the witness as a witness for the defense, or inform the accused person at the trial that they do not intend to call the witness to give evidence but will tender the witness for cross-examination by the accused person if they so request. (110) A court martial or a Defense Force magistrate may allow the prosecutor to withdraw a charge before the accused person is arraigned on it. (111)

VI. MILITARY JUSTICE PROCEDURES

The procedures applicable to the hearing of charges are similar whether the particular tribunal hearing the charges is a summary authority, a court martial, or a Defense Force magistrate. The practice and procedure applicable to the Australian military justice system, including the review of proceedings and the right of appeal, is set out in legislation. The principal legislation governing these issues is:

1. The Defense Force Discipline Act 1982 (Cth). (112)

2. The Defense Force Discipline Regulations (Cth). (113)

3 The Defense Force Discipline Rules (Cth). (114)

4 The Defense Force Discipline Appeals Act 1955 (Cth). (115)

5 The Federal Court of Australia Act 1976 (Cth). (116)

A. Rules of Evidence, Rules of Procedure and Regulations

1. Rules of Evidence

Subject to any regulations made under the Act, the rules of evidence in force in the Jervis Bay Territory (117) apply to proceedings before a service tribunal as if the tribunal was a court exercising jurisdiction in or in relation to that Territory, and the proceedings were criminal proceedings. (118) A document that is certified by a commanding officer as being a copy of a general order is evidence of that order unless the contrary is proved. (119) In addition, a service tribunal must take judicial notice of all matters within the general service knowledge of the tribunal or of its members. (120)

2. Rules of Procedure

The Judge Advocate General is authorized to make rules of procedure. which are not inconsistent with the Act, providing for the practice and procedure to be followed by service tribunals. (121) The rules so made are subject to parliamentary scrutiny. (122) They may cover such matters as: (123)

1. The attendance of witnesses;

2. The production of documents;

3. The administration of oaths and affirmations;

4. The forms to be used in proceedings;

5. The service of process;

6. Charge sheets;

7. The manner of taking the votes of the members of a court martial;

8. The manner and form of charges; and

9. The recording of proceedings of service tribunals.

3. Regulations

The Governor-General is authorized to make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to the Act. (124)

B. Conduct of Trial

1. Courts Martial and Trials by Defense Force Magistrates

The hearing of proceedings before a court martial or a Defense Force magistrate is normally held in public. (125) If, however, the president of the court martial or the Defense Force magistrate considers it necessary in the interests of the security or defense of Australia, the proper administration of justice, or public morals to order that some or all of the members of the public be excluded during the whole or a specified part of the proceedings, they may do so. 126

2. Method of Taking Evidence

A service tribunal is empowered to take evidence on oath or affirmation, and the proceedings must generally be held in the presence of the accused. (127) Witnesses appearing before service tribunals may be examined, cross-examined, and re-examined. (128)

3. Record of Proceedings

The record of proceedings of a hearing before a summary authority must contain the substance of the evidence of the witnesses and such additional matters, if any, as are necessary to enable the merits of the case to be judged. (129) Where the proceedings of a hearing before a summary authority are recorded by means of shorthand or sound recording apparatus, the recorder must prepare, or cause to be prepared, a transcript in writing, which must be authenticated by the person who made the transcript, and be certified as true and correct by the summary authority. (130)

The proceedings before a court martial or a Defense Force magistrate must, if practicable, be recorded verbatim. (131) Where the proceedings are not recorded by means of shorthand or sound recording apparatus, they must be recorded in sufficient detail to enable the course of the proceedings to be followed, and the merits of the case to be judged, from the record. (132) Where the proceedings are recorded by means of shorthand or sound recording apparatus, the recorder must prepare, or cause to be prepared, a transcript in writing that must be authenticated by the person who made the transcript. (133) The written record of the proceedings must be certified as true and correct, in writing, by the recorder and the judge advocate or the Defense Force magistrate as soon as practicable after the conclusion of the trial. (134)

4. Principles of Law Applicable to Trials

Before 15 December 2001, the principles of the common law with respect to criminal liability applied in relation to service offences. (135) The prosecution bore the onus of proving the case beyond reasonable doubt, while the onus of proving an appropriate defense was on the person charged with the standard of proof being on the balance of probabilities. (136) As from 15 December 2001, the principles of criminal responsibility are as laid down in Chapter 2 of the Criminal Code. (137) Service tribunals may impose punishments ranging in increasing order from a reprimand to imprisonment for life. (138) The particular types of punishment that may be imposed vary with the nature of the tribunal. They are required to have regard to the sentencing principles as applied by the civil courts, as well as the need to maintain discipline in the Australian Defense Force. (139)

5. Amendment of Charge Sheets

A summary authority may, before dealing with or trying a charge, or at any stage of dealing with or trying a charge, amend the charge as they think necessary, unless the amendment cannot be made without injustice to the accused person. (140) Similar action may also be taken by a convening authority, the judge advocate of a court martial, or a Defense Force magistrate. (141) A mistake in the charge sheet in the name or description of the accused person or a mistake that is attributable to clerical error or omission may be amended at any time during a hearing of proceedings. (142)

6. Swearing of Members

After all objections by the accused to members of the court have been dealt with and before the arraignment of the accused begins, the judge advocate administers an oath or affirmation to the p resident and each other member of the court in the presence of the accused. (143) The oath or affirmation is that the person will duly administer justice according to law without fear or favor, affection or ill-will, that the person will well and truly try the accused person or persons before the court martial according to the evidence, and that the person will not disclose the vote or opinion of any member of the court martial unless required to do so in due course of law. (144)

7. Opening Address by Prosecution

Before the first prosecution witness is called to give evidence at trial, the prosecutor may, and at a trial by a court martial or a Defense Force magistrate must, make an opening address to the tribunal, stating briefly:

1. The elements of the offence charged that have to be proved before the accused person can be convicted;

2. The alleged facts upon which the prosecutor will rely to support the charge; and

3. The nature of the evidence that the prosecutor proposes to adduce to prove the alleged facts. (145)

8. Tribunal May Direct Substitution of Plea of Not Guilty

Where at any time during a trial it appears to a service tribunal, or in the case of a court martial, to the judge advocate, that an accused person who has pleaded guilty does not understand the effect of the plea, the tribunal must substitute a plea of not guilty and proceed accordingly. (146)

9. Recalling of Witnesses and Calling of Further Witnesses

The prosecutor and the accused person may, at any time before the judge advocate begins to sum up at a trial by court martial, or before the service tribunal makes a finding on the charge in any other case, recall a witness by leave of the service tribunal. (147) After the witnesses for the defense have given their evidence, the prosecutor may, by leave of the service tribunal, call a witness to give evidence on any matter raised by the accused person in their defense in respect of which evidence could not properly have been adduced, or which could not reasonably have been foreseen, by the prosecution before the accused person presented their defense. (148) A service tribunal may, at any time before the judge advocate begins to sum up at a trial by court martial, or before the service tribunal makes a finding on the charge in any other case, call a witness or recall a witness if, in the opinion of the service tribunal or, in the case of a court martial, the judge advocate, it is in the interests of justice t o do so. (149.) When a witness is so called or recalled, the accused person and the prosecutor may put such questions to the witness as seem proper to the service tribunal or, in the case of a court martial, the judge advocate. (150)

10. Right to Argue and Adduce Evidence

The accused person and the prosecutor may properly argue, and adduce evidence relevant to, any question presented to the service tribunal for decision. (151)

11. Submission of No Case to Answer

At the close of the prosecution case, the accused person may make a submission to the tribunal in respect of a charge that the evidence adduced is insufficient to support the charge. (152)

12. Opening Address by Defense

Where the accused person intends to call a witness to give evidence as to the facts of the case, they may, before calling the first such witness, make an opening address to the tribunal stating the nature and general effect of the evidence that they propose to adduce in their defense. (153)

13. Closing Addresses

After all of the evidence has been given, the accused and the prosecutor may each make a closing address to the tribunal. (154) The closing address, if any, of the accused is made after that of the prosecutor. (155) Where two or more persons are charged in the same charge sheet, their closing addresses are made in the order in which their names are listed on the charge sheet, but when they are represented by the same person, that person may only make one closing address. (156)

14. Judge Advocate to Sum Up

After the closing addresses, if any, at a trial by court martial, the judge advocate is required to sum up the evidence and direct the court on the law relating to the case. (157)

15. Evidence as to Material Facts after Conviction on Plea of Guilty

Where, on the trial of a charge, the accused is convicted after pleading guilty, the prosecutor must inform the tribunal of the material facts that show the nature and gravity of the offence. (158) The convicted person may dispute any such facts, and the and the prosecutor may adduce evidence in relation to any fact so disputed. (159)

In proceedings before a court martial, with the exception of matters that are specifically reserved for determination by the judge advocate, the president presides and every question is determined by a majority vote of the members, and in the event of an equality of votes, the president has a casting vote. (160) In the case where the issue being determined is whether the accused person is guilty or not of a service offence, and the votes are equal, the court martial must find the accused person not guilty. (161) Where a court martial is determining whether an accused person is guilty or not guilty of a service offence or determining the appropriate punishment to impose on a convicted person, the members must sit without any other person present. (162) On any question to be determined by the court martial, the members must vote orally, in order of seniority commencing with the junior in rank. (163)

16. Decisions of Courts Martial

17. Plea in Mitigation

After a person has been convicted by a service tribunal, the prosecutor adduces evidence of the relevant particulars of their service in the Defense Force if they are a defense member or were a defense member at the time of the commission of the offence. (164) They will also produce particulars of any previous convictions for service offences, civil court offences, and overseas offences, and such other matters relevant to the determination of sentence. (165)

The convicted person may then give evidence, call witnesses to give evidence as to their character and in mitigation of punishment, and address the service tribunal in mitigation of punishment. (166) The witnesses, including the convicted person if they give evidence, may be examined, cross-examined, and re-examined as with any witness during the trial. (167)

C. RIGHTS OF AN ACCUSED

1. Action Following Arrest

A person arrested under the provisions of the Act must be delivered, as soon as practicable, into the custody of a commanding officer, who must either charge them with a service offence or release them from custody within 24 hours after they have been delivered into their custody. (168) where a person is so charged, proceedings must be commenced as soon as possible, and if not commenced within a period of 48 hours, the commanding officer must make a written report to a convening authority giving reasons for the delay. (169)

If a person remains in the custody of a commanding officer for a period of eight days or more without the charges having been dealt with, the commanding officer must report the reasons for the delay in writing to a convening authority every eight days. (170) where a person remains in custody for 30 days without the charge having been dealt with, the convening officer must notify the reasons for the delay to a chief of staff, who must order the release of the person from custody, unless satisfied that it is proper that they should continue in custody. (171)

2. Limitation Period for Bringing Charges

Generally speaking, a person must be charged with a service offence within five years of the commission of the offence. (172) where a person has ceased to be a member of the Defense Force they must be charged within six months of ceasing to be a member, and then only where the maximum punishment for the offence is at least imprisonment for a period of two years. (173) However, a person may be charged with an offence of aiding the enemy, communicating with the enemy, mutiny, or desertion, or with being an accessory to, or with attempting, or inciting any of these offences at any time. (174)

3. Investigation of Service Offences

The Act authorizes a person who is investigating a service offence to ask questions of any person whom they believe may be able to furnish information that may assist with the investigation. (175.) There is however, no obligation on the person to answer any questions. (176) where a person is in custody, an investigating officer may not ask them any question or to do anything in connection with the investigation of a service offence unless the investigating officer has:

1. Told them their name and rank, and

2. Has cautioned them that they do not have to say or do anything, but anything that they do say or do may be used in evidence. (177)

A person must likewise be cautioned before being asked any question or asked to do anything after an investigating officer has either:

1. Decided to charge them with a service offence or

2. Decided to seek the issue of a summons against them for a service offence, or to recommend that they be so charged or that a summons be sought. (178)

A person who is in custody in respect of a service offence is also entitled to communicate with a friend or a relative, and also with a legal practitioner of their choice. (179) They must be treated with humanity and with respect for human dignity while in such custody. (180)

Further protections are added by taping interviews. Where a person, who is being interviewed as a suspect by a police member, makes a confession or an admission, the confession or admission must be tape recorded where possible, and the suspect must be provided with a copy of the video recording or the sound recording, as applicable, free of charge within seven days of the recording being made. (181)

The Act also permits an investigating officer, who is an officer or a warrant officer, to take fingerprints or photographs of a person who is in lawful custody in respect of a service offence, where they deem it necessary for the purpose of establishing the identity of the person. (182) Additionally it permits the identification of a suspect being held in custody by means of photographs where the suspect has refused to take part in an identification parade, or where the holding of an identification parade would be unfair to the suspect or impracticable given all the circumstances. (183) It also authorizes the holding of identification parades, the search of arrested persons, and their medical examination. (184)

Search warrants may be issued authorizing named investigating officers to search:

1. Defense members or defense civilians;

2. The clothing being worn by them, and the property under their immediate control; and

3. To seize any thing of the kind specified in the information seeking the warrant found in the course of the search, which they believe, on reasonable grounds, to be connected with the service offence being investigated. (185)

4. Accused Person Must be Given Copies of Statements by Witnesses

A person who has been charged with a service offence must be given a copy of each statement in writing obtained by the prosecution from material witnesses to the alleged offence before they appear before a summary authority for a purpose relating to the charge. (186)

When a convening authority convenes a court martial for the trial of a charge, the authority must send a copy of the convening order to the president and to each member or reserve member of the court. (187) The judge advocate must be sent the convening order, the charge sheet, the record of evidence taken at proceedings in relation to the charge before a commanding officer, a superior summary authority, or an examining officer, and any other statement taken from a witness to be called for the prosecution. (188) The accused person must be sent copies of:

1. The charge sheet;

2. The record of evidence taken at proceedings in relation to the charge before a commanding officer, a superior summary authority, or an examining officer;

3. Any other statement taken from a witness to be called for the prosecution;

4. A list of the names of witnesses to be called by the prosecution; and

5. A list of exhibits to be given in evidence for the prosecution. (189)

When a convening authority refers a matter to a Defense Force magistrate, the authority must, in the order referring the matter, specify the Defense Force magistrate to whom the matter is referred, and fix the time and place for the hearing of the matter. (190) The Defense Force magistrate must be sent the order referring the matter and the charge sheet. (191)

5. Representation of Accused Persons

A person may not represent a party before a court martial or a Defense Force magistrate unless they are either a member of the Defense Force or a legal practitioner. 192 Additionally, a convening authority must, subject to the exigencies of the service, afford an accused person awaiting trial by court martial or Defense Force magistrate the opportunity of being represented at the trial by a legal officer. (193)

At a hearing by a summary authority the accused person is entitled to be represented. (194) At the hearing of a proceeding before a summary authority by way of trial, an accused person may also request the services of a specified member of the Defense Force to defend them. (195) Unless the services of the specified member are not reasonably available, or the hearing is before a subordinate summary authority and the person requested is a legal officer, they must be permitted to defend the accused person. (196) Where the services of the specified member are not reasonably available, the summary authority must, with the consent of the accused person, direct a defense member to defend them. (197) If the accused person requests representation by a legal officer at a hearing before a commanding officer or a superior summary authority, the legal officer whose services are requested must be permitted to defend the accused if leave is given by the commanding officer or superior summary authority and the services of t he legal officer are reasonably available. (198)

While an accused person may request the services of a specified member of the Defense Force to defend them at a hearing before a summary authority, (199) a member who elects to be dealt with by a discipline officer may not be represented. (200)

6. Accused to be Present

Unless, by reason of the disorderly behavior of the accused person, it is impossible to continue the hearing in their presence, a hearing before a service tribunal must be held in the presence of the accused person. (201) Before the members of a court martial are sworn, their names are read to the accused person who must then be asked whether they object to being tried by any of them. (202) The accused person or the prosecutor may) at any time, apply on any reasonable grounds for an adjournment of the proceedings. (203)

7. Record of Evidence

A person may be appointed to act as a recorder or as an interpreter at proceedings before a service tribunal. (204) An accused person may enter an objection to a recorder or interpreter on the ground of partiality or incompetence or both. (205) Where the service tribunal or, in the case of a court martial, the judge advocate, is satisfied that the accused person has substantiated such an objection, the service tribunal or the judge advocate must allow the objection. (206) Before a person begins to act as a recorder or an interpreter, the service tribunal or the judge advocate administers an oath or affirmation to them. (207) In the case of a recorder, the oath or affirmation is that they will, to the best of their ability, truly record and transcribe the evidence and will deliver a true transcript of it to the service tribunal. (208) In the case of an interpreter, the oath or affirmation is that they will, to the best of their ability, truly interpret and translate as required. (209)

8. Applications and Objections by Accused Persons

Before an accused person is required to plead at a trial before a service tribunal, they may make an application based on a number of specified grounds, including:

1. Obtaining an adjournment in order to obtain further time in which to properly prepare their defense;

2. To choose a representative;

3. To secure the attendance of witnesses; or

4. To make a request for separate trial. (210)

They may also object to the charge on a number of specified grounds, including the grounds that the charge does not disclose a service offence or is otherwise wrong in law, or that the service tribunal does not have jurisdiction. (211) The accused person, or the prosecutor, may, at any time, apply to a service tribunal, on any reasonable grounds, for an adjournment of the proceedings before the tribunal. (212)

9. Pleading to Charges and Arraignment

Before hearing any evidence in support of a charge, the tribunal must call upon the accused to plead to the charge, and if they plead guilty and the tribunal is satisfied that they understand the effect of that plea, the tribunal must convict the accused person. (213) if they plead not guilty or if the tribunal is not satisfied that they, in pleading guilty, understand the effect of that plea, the tribunal must record a plea of not guilty and proceed to hear the evidence on the charge. (214) If, after hearing the evidence on the charge adduced by the prosecution, the tribunal is of the opinion that that evidence is insufficient to support the charge, it must dismiss the charge. (215) On the other hand, if after hearing the evidence on the charge adduced by the prosecution, the tribunal is of the opinion that that evidence is sufficient to support the charge, it must proceed with the trial. (216)

Where there is more than one charge against an accused person before a service tribunal, the person is required to plead separately to each charge. (222) Where there is more than one charge against an accused person before a court martial or a Defense Force magistrate in more than one charge sheet, the service tribunal must arraign and try the person on the charge or charges in one charge sheet before they are arraigned on a charge in another charge sheet. (223) If a person is convicted by a court martial or a Defense Force magistrate of a charge which is one of two or more charges stated in the charge sheet in the alternative, they must not be convicted by the service tribunal of any charge which is alternative to the charge of which they have been convicted and which is placed after it on the charge sheet. (224)

After having proceeded with the trial, if the tribunal finds that the charge is not proved, it must dismiss the ch arge (217) or acquit the person (218) as appropriate. If it finds the charge proved, it must convict the accused person, (219) and after hearing evidence relevant to the determination of what action should be taken, (220) proceed to impose a punishment upon them. (221)

VII. REVIEW OF PROCEEDINGS

Part IX of the Act provides that a chief of staff may, by instrument in writing, appoint officers as reviewing authorities to review proceedings in accordance with the Act and Regulations. (225)

A. Discipline Officers

As a discipline officer is not taken to be a service tribunal for the purposes of the Act, (226) proceedings before a discipline officer are not subject to review pursuant to the provisions of Part IX of the Act.

B. Subordinate Summary Authorities

Proceedings before a subordinate summary authority must be reviewed by the authority’s commanding office, and, for this purpose, the commanding officer is deemed to be a reviewing authority. (227) The commanding officer may, but is not required to, obtain a report from a legal officer before commencing the review, but must forward the record of the proceedings and a report of the results of their review to a legal officer after completing the review of the proceedings. (228) If the legal officer is not satisfied with the review by the commanding officer, they may in turn forward the record and report to a reviewing authority. (229)

C. Commanding Officers, Superior Summary Authorities, Defense Force magistrates, Restricted Courts Martial, and General Courts Martial

All service tribunals, other than subordinate summary authorities, must forward the record of proceedings to a reviewing authority for automatic review upon the conviction of a person for a service offence, whereupon the reviewing authority must promptly review the proceedings. (230) However, before reviewing the proceedings, the reviewing authority, in the case of a conviction by court martial or Defense Force magistrate, must first obtain a report from a legal officer appointed by instrument in writing for the purpose of reviewing charges by a chief of staff on the recommendation of the Judge Advocate General. (231) In the case of a conviction by a commanding officer or a superior summary authority, a report must be obtained from a legal officer. (232)

Although reviewing authorities are bound by any opinion on a question of law set out in a legal officer’s report, they may refer the report to the Judge Advocate General, or if the Judge Advocate General so directs, to a Deputy Judge Advocate General, for further opinion. (233) If the Judge Advocate General or the Deputy Judge Advocate General dissents from the opinion on the question of law given in the report of the legal officer, they must furnish to the reviewing authority a written report stating their opinion on the question of law. That opinion is binding on the reviewing authority. (234)

D. Review on Petition to a Reviewing Authority

Where a person has been convicted of a service offence by a service tribunal, they may, within 90 days of the conviction, or within such further period as a reviewing authority allows, lodge with the reviewing authority a petition for a review of the proceedings concerned. (235) Likewise, if a person appeals to the Defense Force Discipline Appeal Tribunal and the appeal is dismissed, they may lodge a petition for a review of the proceedings of the service tribunal which was the subject of that appeal, within 60 days of the dismissal or such further period as a reviewing authority allows. (236) Upon receipt of a petition, a reviewing authority must as soon as possible, and in any event within 30 days of us receipt, review the proceedings and notify the petitioner of the result of the review. (237) Once again, the reviewing authority must obtain a report on the proceedings from a legal officer before commencing the review. (238)

E. Further Review by a Chief of Staff

A review by a reviewing authority does not prevent a further review of the proceedings concerned by a chief of staff if it appears to the chief of staff that there are sufficient grounds for a further review. (239) For the purpose of conducting such further review the chief of staff is deemed to be a reviewing authority. (240) However, before commencing the review, the chief of staff must first obtain a report on the proceedings from the Judge Advocate General or, if the Judge Advocate General so directs, from a Deputy Judge Advocate General. (241) The chief of staff is bound by any opinion on a question of law set out in the report. (242)

F. Effect on Reviews of Appeals to the Defense Force Discipline Appeal Tribunal

Where a convicted person lodges an appeal, or an application for leave to appeal, to the Defense Force Discipline Appeal Tribunal, a reviewing authority must not commence or proceed with a review. (243) But where the Defense Force Discipline Appeal Tribunal dismisses the appeal, or the application for leave to appeal, the reviewing authority may proceed with a review. (244)

G. Action on Review of Proceedings that have resulted in a Conviction

Where it appears to a reviewing authority that a conviction is:

1. Unreasonable; or

2. Cannot be supported, having regard to the evidence; or

3. That, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred; or

4. That there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or

5. That, in all the circumstances of the case, the conviction is unsafe or unsatisfactory;

the reviewing authority must quash the conviction. (245) Where a reviewing authority quashes a conviction and does not order a new trial, the person is deemed to have been acquitted of the offence. (246) Where a reviewing authority quashes a conviction that was recorded within the preceding six months and considers that, in the interests of justice, the person should be tried again for that service offence, they may order a new trial of the person for that offence. (247) The order for the new trial lapses unless the new trial commences within a period of six months commencing on the day on which the order is made. (248)

Alternatively, where a reviewing authority quashes a conviction but considers that the tribunal could have found the person guilty of an alternative offence as prescribed by the Act, or of an offence that was charged in the alternative and in respect of which the tribunal did not record a finding, and that the tribunal, by reason of its finding in respect of the original offence, must have been satisfied beyond reasonable doubt of facts sufficient to prove the other offence, the authority may substitute a conviction of the other offence. (249) Provided that a punishment was imposed for the original offence, the reviewing authority may impose a punishment that would have been available to the tribunal in respect of such conviction that is not more severe than the original punishment. (250)

H. Action on Review of Punishment Imposed by a Service Tribunal

If it appears to a reviewing authority that the punishment imposed by a tribunal is wrong in law or is excessive, they must quash the punishment. (251) And where it appears to a reviewing authority that a summary authority has imposed an elective punishment without having given the accused the right to elect trial by court martial or Defense Force magistrate, they must quash the punishment. (252) They may then award such a punishment as was available to the tribunal, so long as it is not more severe than that initially awarded. (253)

I. Punishments Subject to Approval by a Reviewing Authority

A number of specified punishments do not take effect unless approved by a reviewing authority, (254) who must also determine when the punishment is to take effect. (255) If the reviewing authority does not approve the punishment, they must quash it, but having done so, they may then impose such a punishment as the tribunal might have imposed, so long as it is not more severe than the punishment originally imposed. (256) With these exceptions, a punishment imposed by a service tribunal, a reviewing authority, or the Defense Force Discipline Appeal Tribunal, takes effect forthwith, and a punishment for a specified period commences on the day on which it is imposed. (257) However, a summary authority who imposes a punishment for a specific period may suspend the commencement date for the punishment by up to 14 days. (258) Punishments may be either concurrent or cumulative. (259) Where a convicted person petitions a reviewing authority with respect to either conviction or punishment, or notifies a reviewing auth ority that they have appealed to the Defense Force Discipline Appeal Tribunal against the conviction, the reviewing authority may order the stay of execution of punishment pending the determination of the appeal or petition. (260)

VIII. APPEAL AGAINST CONVICTION

A right of appeal against conviction by a court martial or a Defense Force magistrate lies initially to the Defense Force Discipline Appeal Tribunal, and from there, in certain circumstances, to the Federal Court of Australia, and finally to the High Court of Australia. The role of each of these tribunals in the administration of service discipline shall now be examined.

A. The Defense Force Discipline Appeal Tribunal

1. Composition

The Defense Force Discipline Appeal Tribunal was created by the Defense Force Discipline Appeals Act 1955, and consists of a President, a Deputy President, and such other persons as are appointed by the Governor-General by commission to be members of the Tribunal. (261) In order to qualify for appointment as President or Deputy President, a person must be a Justice or Judge of a federal court or of the Supreme Court of a State or Territory; and to qualify for appointment as a member, a person must be a Justice or Judge of a federal court or of the Supreme Court of a State or Territory or a Judge of a District Court or County Court of a State. The President, the Deputy President, and the members all cease to hold office if they no longer hold such qualifying appointments. (262)

2. Procedure

Except when the Tribunal is dealing with matters of procedure or deliberating, or when the interests of security, the proper administration of justice, or public morality demands otherwise, the proceedings of the Tribunal are conducted in public. (263) The Tribunal is normally comprised of three members, at least one of whom must be the President, the Deputy President or a member who is qualified for appointment as President. (264) However, the powers of the Tribunal may be exercised by a single member with respect to certain specified matters, such as the granting of leave to appeal to the Tribunal against a conviction. (265)

3. Right to Appeal

While a convicted person may appeal to the Tribunal against their conviction, an appeal on a ground that is not a question of law may not be brought except by leave of the Tribunal.266 An appeal or an application for leave to appeal must, without leave of the Tribunal, be brought within 30 days of the person’s receiving notice of the result of the review of the proceedings (267) or within 60 days of the conviction, whichever is the earlier? (68)

4. Determination of Appeals

Where it appears to the Tribunal that the conviction is unreasonable or cannot be supported, having regard to the evidence; or that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred; or that there was a material irregularity in the course of the proceedings before the court martial or the Defense Force magistrate and that a substantial miscarriage of justice has occurred; or that, in all the circumstances of the case, the conviction is unsafe or unsatisfactory; it must allow the appeal and quash the conviction. (269)

Furthermore, where it appears to the Tribunal that there is evidence that was not reasonably available during the earlier proceedings, which evidence is likely to be credible, and which would have been admissible in the earlier proceedings, the Tribunal must receive and consider that evidence and, if it appears that the conviction cannot be supported having regard to that evidence, it must allow the appeal and quash the conviction. (270)

Where the Tribunal quashes a conviction, it may, if the interests of justice so require, order a new trial. (271) However, for the purposes of the Defense Force Discipline Act 1982 (Cth), where the Tribunal quashes a conviction and does not order a new trial, the person is deemed to have been acquitted of the offence. (272) On the other hand, if it considers that the court martial or the Defense Force magistrate could have found the accused guilty of an alternative offence, (273) or of an offence charged in the alternative in respect of which the earlier tribunal did not record a finding, on the basis of the facts found by the tribunal, the Tribunal may substitute a conviction of the alternative offence. (274)

5. Representation of Appellants and Hearing of Appeals

An appellant is entitled to representation before the Tribunal by a legal practitioner. (275) Although an appellant is entitled to be present at the hearing of me matter, it may be heard and determined notwithstanding the appellant’s absence. (276)

6. Reference of Questions of Law to Federal Court of Australia

The Tribunal may, of its own motion or at the request of the appellant or a chief of staff, refer a question of law arising in a proceeding before it, not being a proceeding before a single member exercising the powers of the Tribunal, to the Federal Court of Australia for decision, and the Full Court of the Federal Court of Australia has jurisdiction to hear and determine the question of law referred to it. (277)

B. The Federal Court of Australia: Appeals from Decisions of the Tribunal

An appellant or a chief of staff may appeal to the Federal Court of Australia on a question of law involved in a decision of the Tribunal in respect of an appeal under the Defense Force Discipline Appeals Act 1955 (Cth), not being a decision given by a single member exercising the powers of the Tribunal. (278) Unless further time is allowed by the Federal Court of Australia, an appeal must be instituted within 28 days of the delivery of the decision of the Tribunal. (279) The jurisdiction to hear and determine the appeal is exercised by the Federal Court of Australia constituted as a Full Court, which may make such order as it thinks appropriate, including an order affirming or setting aside the decision of the Tribunal; an order remitting the case to be heard and decided again by the Tribunal in accordance with its directions; or an order (280) granting a new trial by a court martial or a Defense Force magistrate:

C. Appeals to the High Court of Australia

The High Court of Australia has jurisdiction to hear and determine appeals from judgments of the Federal Court of Australia, whether in civil or criminal matters, subject to the following exceptions. (281) Except as otherwise provided by another Act, an appeal cannot be brought a judgment of the Federal Court constituted by a single Judge, nor from a judgment of a Full Court of the Court unless the High Court gives special leave to appeal. (282) The jurisdiction of the High Court to hear and determine an appeal in accordance with these provisions is exercised by a Full Court of the High Court consisting of not less than three Justices. (283)

IX. JURISDICTIONAL CHALLENGES TO THE DEFENCE FORCE DISCIPLINE ACT

Over the years, the High Court of Australia has held that the legislation providing for the trial by court martial of members of the Australian Defense Force is a valid exercise of the powers given to Federal Parliament to make laws in relation to “the naval and military defense of the Commonwealth.” (284)

Since the introduction of the Defence Force Discipline Act 1982 (Cth), questions have arisen about the jurisdiction of the Australian Defence Force service tribunals to deal with those matters that are also offences under the ordinary civil law. Between 1989 and 1994 the High Court of Australia considered three challenges to the jurisdiction of a service tribunal to hear charges brought under the DFDA. They were Re Tracey, Ex parte Ryan; Re Nolan and Another; Ex parte Young and Re Tyler and Others; Ex parte Foley. (285)

The nature of the challenge to the jurisdiction of service tribunals in each case involved contentions that:

1. The respective charges were not laws appropriate to the discipline of the defense forces;

2. there was an infringement of the applicant defence member’s civil and constitutional rights to a trial in the ordinary courts for an offence against the general law of Australia; and

3. for a service tribunal to hear the charges involved the exercise of the judicial power of the Commmonwealth which required the judicial officer to be appointed pursuant to Chapter III of the Constitution.

A. Separation of Powers

The jurisdictional challenges also raised issues of separation of powers. The separation of powers doctrine has two limbs that relate to the exercise of judicial power. The first was established in Huddart, Parker & Co Pty Ltd v Moorehead (286) in which Griffith CJ held that the exercise of Commonwealth judicial power was limited to Chapter III courts under section 71 of the Constitution. The second limb of this doctrine states that Federal Chapter III courts can only exercise judicial powers and such powers as are ancillary or incidental to the judicial function as was established in R v Kirby; Ex parte Boilermakers’ Society of Australia. (287) The doctrine is said to be a reflection of the requirement that all people should be subject to the same law administered by the same tribunals.

The first limb of the separation of powers doctrine is relevant to service tribunals established under the DFDA. The initial question before the High Court was whether service tribunals exercise the judicial power of the Commonwealth. The classic definition of judicial power was made by Griffith CJ in Huddart Parker: (288)

I am of the opinion that the words ‘judicial power’ as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

Re Tracey, Ex parte Ryan; Re Nolan, Ex Parte Young and Re Tyler and Ors, Ex Parte Foley generally accepted the view that section 51 (vi) of the Constitution permits the establishment of service tribunals to maintain discipline of defence forces. Most Justices agreed that service tribunals exercise judicial power in the traditional sense described above: (289)

[N]o relevant distinction can, in our view, be drawn between the power exercised by a service tribunal and the judicial power exercised by a court. Nor do we think it possible to admit the appearance of judicial power and yet deny its existence by regarding the function of a court-martial as merely administrative or disciplinary. (290)

In addition, most Justices explained that the exercise of judicial power by service tribunals does not, of itself, breach the separation of powers doctrine by distinguishing between “judicial power” per se and “judicial power of the Commonwealth:” (291)

Thus the real question in this case is not whether a court-martial in performing its functions under the [Defence] Act is exercising judicial power. There has never been any real dispute about that. The question is whether it is exercising the judicial power of the Commonwealth under Ch. III of the Constitution. (292)

The various judges put forward different reasons for distinguishing between judicial power exercised by service tribunals and that of the Commonwealth. They all concluded that service tribunals do exercise judicial power within the Huddart Parker (293) definition.

Mason CJ, Wilson and Dawson JJ suggested in Re Tracey (294) that service tribunals could exercise judicial power without breaching section 71 because that section requires that “unless… a contrary intention may be discerned,” judicial jurisdiction must be conferred only on Chapter III courts. Their Honours considered that a contrary intention is evident in respect of the defence power as it is essential for the proper functioning of the defence force that a disciplinary system of a judicial nature exist within the force and standing outside Chapter III. (295)

Dixon and Deane JJ held in Re Tracey (296) that service tribunals could validly exercise judicial power because they operate independently of “… the judicial system administering the law of the land, which is comprised of Chapter III courts exercising federal jurisdiction.” Deane JJ went on to state that this distinction involves “… an essentially pragmatic construction of the reference to the judicial power of the Commonwealth in Chapter Ill.”

In Re Tracey, (297) Brennan and Toohey JJ considered whether military tribunals were exercising “the judicial power of the Commonwealth,” such as would require their compliance with Chapter III of the Constitution. They quote Dixon J in R v Cox; Ex parte Smith (298) where his Honour said:

In the case of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional: R v Bevan. (299) The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organisation of an army or navy or air force. But they do not form part of the judicial system administering the law of the land. It is not uniformly true that the authority of courts-martial is restricted to members of the Royal forces. It may extend to others who fall under the same general military authority, as for instance those who accompany the armed forces in a civilian capacity.

Their Honours upheld the validity of military tribunals saying that “the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s. 51(vi) for the purpose of maintaining or enforcing service discipline.

In Re Tracey, (301) Deane JJ also notes the view expressed by Dixon J in R v Cox; Ex parte Smith (302) that the administration of military justice by courts martial did not involve a “real” exception to Chapter III of the Constitution. (303) In respect of the “immunity” of those powers from the net cast by Chapter III of the Constitution Deane JJ says, “The legal rationalisation of such immunity can only lie in an essentially pragmatic construction of the reference to “the judicial power of the Commonwealth” in Ch III to exclude those judicial powers of military tribunals which have traditionally been seen as lying outside what Dixon J described as “the judicial system administering the law of the land.” (304)

B. Offences Amenable to Jurisdiction of Service Tribunals

A further question for resolution by the High Court was, assuming that a service tribunal is entitled to exercise judicial power without breaching section 71 of the Constitution, over what Defence Force Discipline Act offences may a service tribunal exercise judicial power? There is general recognition that “disciplinary” offences cannot be clearly distinguished from “civil” offences. (305) Unfortunately the High Court has not had a unanimous opinion on this distinction and on the charges that a service tribunal can validly determine.

Mason CJ, Wilson and Dawson JJ in Re Tracey (306) held that service tribunals can validly exercise judicial power if the exercise is “sufficiently connected with the regulation of the forces and the good order and discipline of defence members.” (307) When it came to applying this test, they considered that, rather than the courts drawing some arbitrary distinction between military and civil offences, it is up to the Commonwealth Parliament to determine what is required to regulate defence force members. Parliament was entitled to determine, as it did in section 61 of the Defence Force Discipline Act 1982 (Cth), that any civil offence committed by a defence member will disrupt the order and discipline of the forces and will, therefore, amount to a military offence. (308) Mason CJ and Dawson JJ maintained this view in Re Nolan (309) and Re Tyler. (310)

In Re Tracey, Re Nolan and Re Tyler, (31) Brennan and Toohey JJ considered that proceedings before a service tribunal in relation to a military offence could only be brought if they substantially served the purpose of maintaining or enforcing service discipline. This test seems not unlike the “substantial connection” approach advocated by Mason CJ, Wilson and Dawson JJ. However, Brennan and Toohey JJ did not beleive it should be up to Parliament to detennine, pursuant to section 61 of the Defence Force Discipline Act 1982 (Cth), that proceedings in relation to the commission of civil offences by defence members would always serve the requisite purpose. Instead, their Honours stated that this would depend on the facts of a particular case, including consideration of “whether the jurisdiction of a competent civil court can conveniently and appropriately be invoked to hear and determine a corresponding civil court offence.” (312) This view recognises the practical difficulties associated with hearing civil offe nces in remote parts of Australia or outside Australia during times of war.

One difficulty with the approach adopted by Brennan and Toohey JJ is the practical task of distinguishing between offences that substantially serve the purpose of maintaining or enforcing service discipline and those that do not. In practice, service tribunals must determine, as a preliminary question, whether proceeding with a particular matter substantially serves the purpose of maintaining or enforcing service discipline.

Gaudron J’s approach in Re Tracey, Re Nolan and Re Tyler 313 was based on the nature of the defence power as a “purposive” power. (314) Her Honour noted that the criterion for assessing the validity of a purported exercise of such a power is “that it is reasonably capable of being regarded as appropriate and adapted to the object which gives the law in question its character as a law with respect to the relevant head of power.” (315) Accordingly, the limits of judicial power exercisable by a service tribunal depend on the extent to which the exercise of the power is “appropriate and adapted” to the object of controlling the defence forces under section 51 (vi) of the Constitution. Application of this criterion depends on the circumstances engaging the power and the situations in which the forces are deployed. (316)

Gaudron J considered that where defence members are serving outside Australia, it will often be inappropriate for offences to be heard by the ordinary Australian courts. (317) Her Honour considered that, in these circumstances, military tribunals will be entitled to hear charges which could otherwise be put before the civil courts. These service proceedings would be permitted by section 51 (vi) of the Constitution and would not breach Chapter III. By contrast, “the vesting of jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences cannot reasonably be regarded as appropriate and adapted to the object of control of the forces.” (318) Hence, Gaudron J considered the Defence Force Discipline Act 1982 (Cth) to be invalid to the extent that it purported to vest jurisdiction in service tribunals to hear service offences substantially the same as civil offences in times of peace and general civil order. (319.)

In Re Tracey, (320) Deane JJ emphasised the significance of the separation of powers doctrine to the Constitution as a whole and, in particular, the importance of ensuring that judicial power is exercised only by Chapter III courts. Speaking of the justification of the doctrine of the separation of judicial from executive and legislative powers, his Honour said that “To ignore the significance of the doctrine or to discount the importance of safeguarding the true independence of the judicature upon which the doctrine is predicated is to run the risk of undermining, or even subverting, the Constitution’s only general guarantee of due process.” (321) In the subsequent case Re Tyler, his Honour said that he continued to reject what he saw “as an unjustifiable denial of the applicability of the Constitution’s fundamental and overriding guarantee of judicial independence and due process to laws of the Parliament providing for the trial and punishment of members of the armed forces for ordinary (in the sense of not exclusively disciplinary) offences committed within the jurisdiction of the ordinary courts in times of peace and general civil order.” (322) Addressing the traditional confinement of the nature and range of the disciplinary powers of military tribunals in Re Tracey, (323) his Honour said:

It avoids the creation of a military class removed from the reach of the ordinary law and courts of the land….It protects the civilian from being subjected to military law and deprived of the benefits and safeguards of the administration of justice by independent courts. It limits the extent to which those subject to military authority are deprived of those benefits and safeguards to what is ‘thought necessary’ for the maintenance and enforcement of military discipline and duty. (324)

His Honour considered that the Defence Force Discipline Act 1982 (Cth) cannot validly grant jurisdiction to military tribunals to deal with offences against the Defence Force Discipline Act 1982 (Cth) that are also offences under the ordinary State or Commonwealth criminal law, even though they might have a disciplinary aspect. His Honour considered that these provisions could not be saved by reading down or severance. (325) Only the exclusively disciplinary offences under the Defence Force Discipline Act 1982 (Cth) were excluded from the application of Chapter III and hence, could be validly dealt with by military tribunals. (326) Deane JJ took the same view in Re Nolan (327) and Re Tyler. (328)

McHugh J agreed with Deane JJ’s approach in Re Nolan. (329) However, in the most recent case of Re Tyler. (330) McHugh J acknowledged that no ratio decidendi could be discerned from Re Tracey (331) or Re Nolan, (332) but stated that a court (other than the High Court) must apply the decision of an earlier case lacking a ratio decidendi where the circumstances of the new case are not reasonably distinguishable from the earlier case. (333) As the reasoning of the majority of Justices in both Re Tracey (334) and Re Nolan was different to that of Deane JJ, namely that military tribunals are restricted to dealing with exclusively disciplinary offences, McHugh J felt compelled to give effect to the majority view:

Although I remain convinced that the reasoning of the majority justices in Re Nolan and Re Tracey is erroneous, I do not regard that as a sufficient reason to refuse to give effect to the decisions in those cases. They are recent decisions of the Court where, after full argument on each occasion, the Court upheld the validity of the Act in circumstances where the facts are not readily distinguishable from the present case. (336)

In summary, the High Court cases have held that:

1. No distinction can be drawn between the power exercised by a service tribunal and the judicial power exercised by a Court.

2. The powers bestowed by section 51 of the Constitution are subject to the Constitution and thus subject to Chapter III of the Constitution.

3. The proper organisation of a defence force requires a system of discipline which is administered judicially, not as part of the judicature established under Chapter m of the Constitution, but as part of the organisation of the force itself. Thus the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Chapter III of the Constitution and to impose upon those administering that code the duty to act judicially.

4. As a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connection between the offences and the defence force is the service membership of the offender. Such legislation is based on the premise that as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens the enforcement of those standards by military tribunals, that is, Parliament can take the view that what is good for society is good for the regulation of the defence forces and give effect to that view by creating service offences which are cumulative upon rather than in substitution for civil offences.

X. CONCLUSION

As is the case with the Canadian, New Zealand and United States military justice systems, the Australian system is derived from and based upon the English common law. Each of these systems is the result of a fairly lengthy evolutionary process. While each of the three Services was initially subject to the Defence Act 1903 (Cth), the Navy and the Air Force were subsequently granted their own legislation. However, the administration of discipline in all three Services was effectively governed by the respective English legislation, by reference in the Australian law, until 1985. Since 1985 they have all come under the provisions of the Defence Force Discipline Act 1982 (Cth).

A requirement for the maintenance of discipline in the military was recognised at an early stage. Furthermore, judicial opinion was that soldiers should be tried by their officers for all offences committed in a military capacity and civilian courts would not review proceedings of courts martial so long as they acted within their jurisdiction. It was not until 1955 in Australia that appeal was available from the decision of a court martial to any court, either civil or military. In addition to the right to review by petition within the military system, there is also available a right of appeal against conviction to civilian courts or courts that are constituted by civilian judges which is comparable to that applicable to civilian criminal proceedings.

The advent of the Defence Force Discipline Act 1982 (Cth) has meant that the service tribunals that are tasked with trying offences, the authorities, the tribunals, and the courts that may entertain petitions and appeals from their decisions, and the practices and procedures that are applicable to proceedings that are conducted before those tribunals and courts closely parallel those applicable in the Australian civilian courts.

Finally, it is abundantly clear that by becoming soldiers, the members of the Australian armed forces do not shed any of the rights and duties of citizens. Where the duties of a soldier and a citizen conflict, the duties of the citizen prevail.

(1.) Sarah Dawson (ed), The Penguin Australian Encyclopaedia (1990) 135; Jeffrey Grey, A Military History of Australia (1990) 9; Gerald Walsh, “The Military and the Development of the Australian Colonies, 1788-1888” in Michael McKernan & Margaret Browne (eds), Australia: Two Centuries of War & Peace (1988) 44.

(2.) Eg, The Volunteer Force Regulation Act 1867 (NSW); Defences and Discipline Act 1890 (Vic); The Defence Acts 1884 to 1896 (Qld); The Defence Act 1885 (Tas); The Safety of Defence Act 1892 (WA); and The Naval Discipline Act 1884 (SA).

(3.) Eg, The Discipline Act 1870(Vic) ss 10 and 11.

(4.) 63 & 64 Vict, c 12.

(5.) Defence Act 1903 (Cth) s 6.

(6.) Id a 124.

(7.) Statutory Rules 1904 No 71.

(8.) Statutory Rules 1906 No 20 – which effectively applied the English law.

(9.) Statutory Rules 1922 No 160 – which applied the Australian Military Regulations (Statutory Rules 1916 No 66) to die Air Force.

(10.) Statutory Rules 1927 No 161.

(11.) Statutory Rules 1935 No 133.

(12.) Royal Australian Navy was formed in 1910; die Royal Australian Air Force in 1921.

(13.) Defence Act 1903 (Cth) s 5.

(14.) 29 & 30 Vict, c 109; Defence Act 1903 (Cth) s 56.

(15.) Naval Defence Act 1910 (Cth) s 36.

(16.) 6 Eliz 2, c 53.

(17.) Naval Defence Act 1964 (Cth) s 34.

(18.) By the Defence Force (Miscellaneous Provisions) Act 1982 (Cth) s 83.

(19.) Defence Act 1903 (Cth) s 5.

(20.) 44 & 45 Vict, c 58.

(21.) Defence Act 1903 (Cth) s 55.

(22.) Id. s 14.

(23.) Defence Act 1903 (Cth) s 28.

(24.) 44 & 45 Vict, c 58.

(25.) By the Defence Force (Miscellaneous Provisions) Act 1982 (Cth) s 51.

(26.) Air Force Act 1923 (Cth) s 3(3).

(27.) 44 & 45 Vict, c 58.

(28.) Force Act 1923 (Cth) s 3(5).

(29.) 7 & 8 Geo 5, c 51.

(30.) Air Force Act] 1939 (Cth) s 6.

(31.) By the Defence Force (Miscellaneous Provisions) Act 1982 (Cth) s 9.

(32.) Defence Force Discipline Act 1982 (Cth) (hereinafter referred to as “DFDA”) s 10.

(33.) DFDA s 3(1).

(34.) DFDA Part VI ss 101-101ZC.

(35.) DFDA ss 98-100.

(36.) DFDA Part V ss 88-95.

(37.) DFDA s 83.

(38.) DFDA s 84.

(39.) DFDA s 75.

(40.) DFDA s 172.

(41.) DFDA ss 78, 79, 81, 82, and 173.

(42.) DFDA Part X ss 170-177.

(43.) DFDA s 169F(4).

(44.) DFDA s 3(1) and Pt VII, Div 2.

(45.) DFDA ss 106-111.

(46.) DFDA s 102. Convening authorities are appointed by chiefs of staff by instrument in writing. Id.

(47.) DFDA s 103.

(48.) DFDA s 114(2).

(49.) DFDA s 116(1)(a).

(50.) DFDA s 116(1)(b).

(51.) DFDA s 116(1)(c).

(52.) DFDA s 116(2)(a).

(53.) DFDA s 115(1).

(54.) DFDA ss 67(1) and 68(1), and Schedule 2.

(55.) DFDA s 102.

(56.) DFDA s 114(3).

(57.) DFDA s 116(2)(b).

(58.) DFDA Schedule 2.

(59.) DEDA ss 67(1) and 68(1), and Schedule 2.

(60.) DFDA s 196(2). In order to be eligible to be nominated to the panel by the Judge Advocate General, an officer must be enrolled as a legal practitioner and have been so enrolled for not less than five years. DFDA s 196(3).

(61.) DFDA s 196(4).

(62.) DFDA ss 127 and 128(1).

(63.) DFDA s 103(1)(c).

(64.) DFDA s 129(1).

(65.) DFDA ss 67(1) and 68(1), and Schedule 2.

(66.) DFDA s 105(1).

(67.) DFDA s 63. These offences include treason, murder, manslaughter, bigamy, and specified sexual assaults.

(68.) DFDA s 106(a).

(69.) DFDA ss 106(b) and (c).

(70.) DFDA ss 110(1)(b) and (c).

(71.) DFDA ss 67(2) and 68(1), and Schedule 3, Table A.

(72.) DFDA s 107(1).

(73.) DFDA s 107(2)(a).

(74.) DFDA s 107(2)(b).

(75.) DFDA ss 103(l)(b) and 111(2)(c).

(76.) DFDA s 3(1).

(77.) DFDA s 131.

(78.) DFDA ss 67(2) and 68(1), and Schedule 3, Table B.

(79.) DFDA s 105(2).

(80.) DFDA s 108(1).

(81.) DFDA ss 108(lA) and (4).

(82.) As defined in DFDA s 104, which includes the offences of treason, murder, manslaughter, bigamy, and specified sexual offences.

(83.) DFDA s 108(2).

(84.) DFDA s 108(3).

(85.) DFDA ss 67(2) and 68(1), and Schedule 3, Table C.

(86.) Defence Legislation Amendment Act 1995 (Cth) Sch 2 [paragraph] 30; the new provisions came into effect on 1 November 1995.

(87.) Discipline Law Manual (Aust) (1996) Vol 1, [paragraph] 1327.

(88.) DFDA ss 169G(2) and (3).

(89.) DFDA ss 169A and F.

(90.) DFDA s 169B. DFDA s 3(1) defines “officer” to mean a person appointed as an officer.

(91.) DFDA s 169C.

(92.) DFDA s 169F(1).

(93.) DFDA ss 179(1) and (3).

(94.) DFDA ss 183(1) and (2).

(95.) DFDA s 180(1).

(96.) DFDA ss 186(1) and (2).

(97.) DFDA s 186(3).

(98.) DFDA s 179(2).

(99.) DFDA ss 183(1) and (2).

(100.) DFDA s 180(2). However, in practice the Deputy Judge Advocates General who have been a pointed have been either judges or very senior counsel.

(101.) DFDA ss 186(1)-(4).

(102.) DEDA ss 134(1) and (2).

(103.) DEDA s 134(4).

(104.) DFDR reg. 32.

(105.) DFDR reg. 36.

(106.) DFDR reg. 31.

(107.) DFDA s 133(1)(a).

(108.) Pursuant to DFDR reg. 15.

(109.) DFDR reg. 16(1).

(110.) DFDR reg. 16(2).

(111.) DFDR reg. 13.

(112.) Act No. 152 of 1982.

(113.) Statutory Instrument No. 125 of 1985.

(114.) Statutory Instrument No. 128 of 1985.

(115.) Act No. 16 of 1955.

(116.) No. 156 of 1976.

(117.) A territory of the Commonwealth of Australia.

(118.) DFDAs 146.

(119.) Defence Force Discipline Regulations (Cth) (hereinafter referred to as “DFDRegs”) reg 27.

(120.) DFDA s 147.

(121.) DFDA s 149(1).

(122.) As per Part XII of the Acts Interpretation Act 1901 (Cth) relating to regulations.

(123.) DFDA ss 149(1)(1)-(h).

(124.) DFDA s 197(1).

(125.) DFDA s 140(1).

(126.) DFDA s 140(2).

(127.) DFDA ss 138(1)(a) and 139(1).

(128.) DFDR reg. 18(1).

(129.) DFDR regs. 55(1)(a) and (b).

(130.) DFDR regs. 55(2) and (3)(a).

(131.) DFDR reg. 54(1).

(132.) DFDR reg. 54(2).

(133.) DFDR reg. 54(3).

(134.) DFDR reg. 54(4).

(135.) DFDA s 10.

(136.) DFDA ss 12(1) and (2).

(137.) The Criminal Code is contained in the Schedule to the Criminal Code Act 1995 (Cth) – Act No 12 of 1995.

(138.) DFDA ss 68(1)(a) and (p).

(139.) DFDA s 70(1).

(140.) DFDA s 141A(1)(a).

(141.) DFDA ss 141A(1)(b)-(d).

(142.) DFDR reg. 12.

(143.) DFDR reg. 35(1).

(144.) DFDR reg. 35(2).

(145.) DFDR reg. 42.

(146.) DFDR reg. 43.

(147.) DFDR reg. 19(1).

(148.) DFDR reg. 19(2).

(149.) DFDR reg. 19(3).

(150.) DFDR reg. 19(4).

(151.) DFDR reg. 40.

(152.) DFDR reg. 44.

(153.) DFDR reg. 45.

(154.) DFDR reg. 47(1).

(155.) DFDR reg. 47(2).

(156.) DFDR regs. 47(3) and (4).

(157.) DFDR reg. 48.

(158.) DFDR reg. 49(a).

(159.) FDR regs. 49(b) and (c).

(160.) DFDA ss 133(1)-(3).

(161.) DFDA s 133(4).

(162.) DFDA s 133(6).

(163.) DFDR reg. 33.

(164.) DFDR reg. 50(1)(a).

(165.) DFDR regs. 50(1)(b) and (c).

(166.) DFDR regs. 50(2)(a) and (b).

(167.) DFDR reg. 50(3).

(168.) DFDA ss 95(1)-(2).

(169.) DFDA s 95(4).

(170.) DFDA s 95(5).

(171.) DFDA ss 95(8)-(9).

(172.) DFDA s 96(1).

(173.) DFDA s 96(6).

(174.) DFDA ss 15, 16, 20, 22 and 96(2).

(175.) DFDA s 101B(1).

(176.) DFDA s 101B(2).

(177.) DFDA ss 101C(1)-(2).

(178.) DFDA s 101D(1).

(179.) DFDA s 101E(1).

(180.) DFDA s 101H(1).

(181.) DFDA s 101JA.

(182.) DFDA s 101L(1)(a).

(183.) DFDA s 101M(1).

(184.) DFDA ss 101N, P, and Q.

(185.) DFDA s 101X.

(186.) DFDR reg. 15.

(187.) DFDR reg. 29(1)(a).

(188.) DFDR reg. 29(1)(b).

(189.) DFDR reg. 29(1)(c). These documents must also be provided to the accused in a trial by Defence Force magistrate.

(190.) DFDR regs. 28(a) and (b).

(191.) DFDR regs. 29(2)(a)(i) and (ii).

(192.) DEDA s 136.

(193.) DFDA s 137. DEDA s 3(1) defines a legal officer as a member of the Australian Defence Force who is a duly qualified legal practitioner.

(194.) DFDR reg. 23(2).

(195.) DFDR reg. 24(1).

(196.) DFDR reg. 24(2).

(197.) DFDR reg. 24(3).

(198.) DFDR reg. 24(2A).

(199.) DFDR reg. 24(1).

(200.) DFDA s 169G(2).

(201.) DEDA s 139.

(202.) DFDR reg. 34.

(203.) DFDR reg. 39.

(204.) DFDR reg. 37(1).

(205.) DFDR reg. 37(2).

(206.) DFDR reg. 37(3).

(207.) DFDR reg. 37(4).

(208.) DFDR reg. 37(5)(a).

(209.) DFDR reg. 37(5)(b).

(210.) DFDA s 141(1)(a).

(211.) DFDA s 141(1)(b).

(212.) DFDR reg. 39.

(213.) DFDA s 130(1)(a) (summary authorities); s 135(1)(a) (Defence Force magistrates); and s 132(1)(a) (courts martial).

(214.) DFDA s 130(1)(b) (summary authorities); s 135(1)(b) (Defence Force magistrates); and s 132(1)(b) (courts martial).

(215.) DFDA s 130(1)(c) (summary authorities); s 135(1)(c) (Defence Force magistrates); and s 132(1)(c) (courts martial).

(216.) DFDA s 130(1)(d) (summary authorities); s 135(1)(d) (Defence Force magistrates); and s 132(1)(d) (courts martial).

(217.) DFDA s 130(1)(e) (summary authorities).

(218.) DFDA s 135(1)(e) (Defence Force magistrate); and s 132(1)(e) (courts martial).

(219.) DFDA s 130(1)(f) (summary authorities); s 135(1)(f) (Defence Force magistrates); and s 132(1)(f) (courts martial).

(220.) DFDA s 130(4) (summary authorities); 135(5) (Defence Force magistrates); and s 132(5) (courts martial).

(221.) DFDA s 130(1)(g) (summary authorities); s 135(1)(g) (Defence Force magistrates); and s 132(1)(g) (courts martial).

(222.) DFDR reg. 41(1).

(223.) DFDR reg. 41(2).

(224.) DFDR reg. 41(3).

(225.) DFDA s 150.

(226.) DFDA s 169F(4).

(227.) DFDA ss 151(1) and (2).

(228.) DFDA ss 151(3) and (4).

(229.) DFDA s 151(5).

(230.) DFDA ss 152(1) and (2).

(231.) DFDA s 154(1)(a).

(232.) DFDA s 154(1)(b).

(233.) DEDA ss 154(2) and (3).

(234.) DFDA s 154(4).

(235.) DFDA s 153(1).

(236.) DFDA s 153(2).

(237.) DFDA s 153(4).

(238.) DFDA s 154(1).

(239.) DFDA s 155(1).

(240.) DFDA s 155(2).

(241.) DFDA s 155(3).

(242.) DFDA s 155(4).

(243.) DFDA s 156(1).

(244.) DFDA s 156(2).

(245.) DFDA s 158.

(246.) DFDA s 159.

(247.) DFDA s 160(1).

(248.) DFDA s 160(2).

(249.) DFDA ss 142 and 161(1).

(250.) DFDA s 161(2).

(251.) DFDA s 162(1).

(252.) DFDA ss 131 and 162(3).

(253.) DFDA s 162(5).

(254.) DFDA s 172. The punishments include imprisonment for life, imprisonment for a specific period, and dismissal from the Defence Force. The punishments of detention, reduction in rank, forfeiture of seniority, and a fine of an amount in excess of 14 days pay are also subject to approval if awarded by a summary authority.

(255.) DFDA s 168.

(256.) DFDA ss 169(1) and (2).

(257.) DFDA s 171(1).

(258.) DFDA s 171(1A).

(259.) DFDA s 74.

(260.) DFDA s 176.

(261.) Defence Force Discipline Appeals Act 1955 (Cth) (hereinafter referred to as “DFDAA”) ss 6 and 7 (The Act was formerly known as the Courts-Martial Appeals Act 1955 (Cth)).

(262.) DFDAA s 8.

(263.) DFDAA s 18.

(264.) DFDAA s 15(1).

(265.) DFDAA s 17(1).

(266.) DFDAA s 20(1).

(267.) DFDA s 152.

(268.) DFDAA s 21.

(269.) DFDAA s 23(1).

(270.) DFDAA s 23(2).

(271.) DFDAA s 24.

(272.) DFDAA s 41.

(273.) As specified by DFDA s 142.

(274.) DFDAA s 26.

(275.) DFDAA s 39(1).

(276.) DFDAA ss 39(2) and (3).

(277.) DFDAA ss 51(1) and(2).

(278.) DFDAA s 52(1).

(279.) DFDAA s 52(2).

(280.) DFDAA ss 52(3)-(5).

(281.) Federal Court of Australia Act 1976 (Cth) s 33(1).

(282.) Id. ss 33(2) and (3).

(283.) Id. 33(6).

(284.) R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; R v Cox; Ex parte Smith (1945) 71 CLR 1; Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan & Anor; Ex parte Young (1991) 172 CLR 460; Re Tyler & Ors; Ex parte Foley (1994) 181 CLR 18.

(285.) Respectively cited (1989) 166 CLR 518; (1991) 172 CLR 460; and (1994) 181 CLR 18.

(286.) (1909) 8 CLR 330.

(287.) (1956) 94 CLR 254.

(288.) (1909) 8 CLR 330 at 357.

(289.) Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 537 (per Mason CJ, Wilson and Dawson JJ), at 574 (per Brennan and Toohey JJ), at 582 (per Deane J) and at 598 (per Gaudron J).

(290.) Id. at 537 (per Mason CJ, Wilson and Dawson JJ).

(291.) Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 541, 572-574 and 598; cf 582-583; Re Nolan & Anor; Ex parte Young (1991) 172 CLR 460 at 498; Re Tyler; & Ors (1994) 181 CLR 18 at 32 (per Brennan and Toohey JJ).

(292.) Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 540 (per Mason CJ, Wilson and Dawson JJ).

(293.) (1909) 8 CLR 330.

(294.) (1989) 166 CLR 518.

(295.) Id. at 540-541.

(296.) (1989) 166 CLR 518.

(297.) Id at 565.

(298.) (1945) 71 CLR 1 at 23.

(299.) (1942) 66 CLR 452 at 467, 468, 481.

(300.) (1989) 166 CLR 518 at 574.

(301.) (1989) 166 CLR 518.

(302.) (1945) 71 CLR 1 at 23.

(303.) (1989) 166 CLR 518 at 581.

(304.) Id. at 583.

(305.) Tracey; Ex parte Ryan (1989) 166 CLR 518 at 544 (per Mason CJ, Wilson and Dawson JJ) and at 555 (per Brennan and Toohey JJ); Re Nolan & Anor; Ex parte Young (1991) 172 CLR 460 at 474 (per Mason CJ and Dawson J); Re Tyler & Ors; Ex parte Foley (1994) 181 CLR 18 at 26 (per Mason CJ and Dawson J).

(306.) (1989) 166 CLR 518.

(307.) Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 545.

(308.) Id. at 544-545.

(309.) Re Nolan & Anor; Exparte Young (1991) 172 CLR 460 at 474-475.

(310.) Re Tyler & Ors; Ex parte Foley (1994) 181 CLR 18 at 26.

(311.) Supra note 285.

(312.) Re Tracey; Exparte Ryan (1989) 166 CLR 518 at 570.

(313.) Supra note 285.

(314.) Tracey; Ex parte Ryan (1989) 166 CLR 518 at 596.

(315.) Id. at 597.

(316.) Id. at 600; Re Nolan & Anor; Exparte Young (1991) 172 CLR 460 at 498; Re Tyler & Ors; Ex parte Foley(1994) 181 CLR 18 at 35..

(317.) Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 601.

(318.) Id. at 602.

(319.) Id. at 603.

(320.) (1989) 166 CLR 518.

(321.) Id. at 580.

(322.) (1994) 181 CLR 18 at 34.

(323.) (1969) 166 CLR 518.

(324.) Id. at 584.

(325.) Id. at 588.

(326.) Id. at 591.

(327.) (1991) 172 CLR 460 at 489-493.

(328.) (1994) 181 CLR 18 at 34.

(329.) Re Nolan & Anor; Ex parte Young (1991) 172 CLR 460 at 499.

(330.) (1994) 181 CLR 18.

(331.) (1989) 166 CLR 518.

(332.) (1991) 172 CLR 460.

(333.) Re Tyler & Ors; Ex parte Foley (1994) 181 CLR 18 at 37.

(334.) (1989) 166 CLR 518.

(335.) (1991) 172 CLR 460.

(336.) Tyler & Ors; Ex parte Foley (1994) 181 CLR 18 at 39.

WING COMMANDER FRANK B. HEALY *

* Wing Commander Healy is a member of the Australian Defence Force (specifically, the Royal Australian Air Force), and currently working in The Defence Legal Office as the Deputy Director of Military Justice, Wing Commander Heal/s academic qualifications include a Bachelor of Laws degree (LLB) with honours from Melbourne University, a Diploma of Social Science from the University of New England, a Bachelor of Science degree from the Australian National University, a Batchelor of Social Science degree with honours from Charles Sturt University, and a Master of Laws (LLM) from Melbourne University.

COPYRIGHT 2002 U.S. Air Force, Academy Department of Law

COPYRIGHT 2004 Gale Group