Military Justice
What is the military justice system?
The military justice system is a generic term which covers functions such as discipline in the Australian Defence Force, administrative action to support ADF policy, inquiries to establish facts relevant to operation and command of the ADF, and the provisions for review and management of complaints.
The system is essential to ADF operational effectiveness and it complies with Commonwealth laws. Military members are subject to the same laws as apply to other Australians. The military justice system applies to all ranks. All ADF members have an interest in the success of the system.
The following diagram of the military justice system clearly explains the structure of the system and its components. The solid lines represent the framework of the military justice system. However, the parts of the system may interact; this interaction is represented by the dotted lines.
The five key areas are:
- Discipline system
- Administrative system
- Adverse administrative action
- Redress of grievance and other complaints
- Administrative inquiries
In 1982 the Federal Government introduced the Defence Force Discipline Act 1982 (DFDA) as a part of Commonwealth law. This law became effective in 1985, and all ADF members are subject to it.
The purpose of the DFDA is to maintain and enforce military discipline.
The discipline system is necessary for ADF operational capability by dealing with offences that affect military discipline. This includes offences that are uniquely military and other offences that occur in a military environment.
Offences by ADF members are prosecuted under the DFDA, within the military justice system, when the offence substantially affects the maintenance and ability to enforce Service discipline in the ADF. Otherwise, criminal offences or other illegal conduct are referred to civil authorities, such as the police.
The military justice system provides the ADF with an Australian legal framework able to be applied on operations anywhere in the world. This is essential because the ADF may conduct operations in countries where the civil system has broken down and no law applies.
The military justice system applies to all ADF members in times of peace and war, whether in Australia or overseas. ADF members must maintain the high level of discipline required on operations, at all times.
The discipline system includes processes for the investigation of alleged offences, preferring of charges and conduct of fair and reasonable trials.
All ADF members have access to free legal advice in the internal discipline system. This is unique to the military.
The discipline system includes safeguards such as automatic review of convictions and punishments and the right to an internal and external appeal. These safeguards are more extensive and rigorous than those available in the civilian criminal system.
The ADF is not the only working environment where an individual's inappropriate behaviour could lead to the death or injury of a colleague.
Like many other organisations the ADF has an administrative system to support its operations. The system includes components that allow the ADF to maintain the expected standard of professional judgement, command and leadership.
The administrative system also includes provisions to inquire into the facts of any matter.
The administrative system is intended to ensure operational effectiveness. It is not a substitute for punishment for an offence under the discipline system.
A high standard of professional conduct is expected of all ADF members. If professional conduct falls below standard, administrative action is taken.
Administrative action includes counselling, formal warnings, censures, removal from command, and discharge from service.
Redress of grievance and other complaints
The ADF is proud of its progressive system of redress and complaints, which is among the most comprehensive anywhere.
The administrative system includes a legally protected redress of grievance provision that allows an individual to complain about any matter that affects his or her service. The ADF provides legal assistance to ADF members who wish to make a complaint.
There are a number of internal and external organisations to assist ADF members in making a redress or complaint. Usually members submit redress or other complaints through their commanding officer or chain of command. If this course of action is not appropriate then members are able to seek other avenues for complaints.
There are a number of internal and external organisations to which ADF members can make complaints. Usually, members submit redresses or other complaints through their commanding officer or chain of command. If this course of action is not appropriate, then members are able access other avenues for complaint.
Internal organisations for dealing with complaints include:
- Fairness and Resolution Branch, and
- Inspector General ADF.
External organisations include:
- The Defence Force Ombudsman,
- Human Rights and Equal Opportunity Commission, and
- the Office of the Federal Privacy Commissioner.
In some cases, members may also seek a review of the administrative conduct or decisions, made in the ADF, by the Federal Court and higher courts.
The administrative inquiry process is not part of the discipline system. There are different types of administrative inquiries, such as Boards of Inquiry and Investigating Officer Inquiries.
An administrative inquiry determines the facts of an event. By determining what went wrong, the ADF is able to initiate reforms that maintain operational effectiveness, prevent a reoccurrence and save lives.
An administrative inquiry is an internal process that does not place blame and incriminate members involved for offences under the discipline system.
It is important that witnesses are able to give evidence to an inquiry without fear of disciplinary action arising from their admissions. Without this, it might not be possible to get to the true causes of an incident. Openness and frankness are important to a successful inquiry.
Administrative inquiries can be conducted by either ADF personnel or civilians. A civilian may be appointed to be on a Board of Inquiry, or to be an inquiry officer.
The reports resulting from an inquiry are generally not available to the public because of privacy and security obligations. In some cases, such as reports from Boards of Inquiry and Investigating Officer Inquiries, legislation also requires Ministerial approval for public or other release of inquiry reports. These legal protections are necessary to encourage openness and frankness in the inquiry process to enable the true facts to be determined.
Administrative inquiries are essential in maintaining ADF operational effectiveness and ensuring the safety of ADF members. They are used to identify faults and improve ADF systems, procedures, training and equipment. Getting to the facts of the matter and initiating reforms is essential to ADF effectiveness.