Military Justice
Frequently Asked Questions
What does the High Court decision mean to me if I have been convicted and punished by the Australian Military Court (AMC)?
One outcome of the High Court decision is that all AMC convictions are invalid. The recent legislation that has given effect to AMC punishments and orders does not validate AMC convictions.
As a means of safeguarding the rights of ADF members who were convicted and punished by the AMC, there is a system of ‘punishment reviews’.
A ‘punishment review’ is a review of AMC and some summary authority punishments.
Generally, a punishment review is a two stage process. Firstly, the punishment or order is reviewed by an ADF legal officer to ensure that the punishment or order is legally correct. The legal officer will make a recommendation to a Reviewing Authority, who is a senior ADF officer. Based on the recommendation of the legal officer, a Reviewing Authority may uphold, quash or vary the punishment. Punishments cannot be increased.
How can I have a punishment but no conviction?
The High Court found that the AMC was unconstitutional and therefore the AMC’s decisions are invalid. However, Parliament enacted legislation giving effect to the punishments and orders imposed by the AMC. These are considered disciplinary penalties rather than judicial sentences. This means the original punishments and orders stand.
Do I have a criminal record?
The short answer is no. Since the AMC’s decisions were invalid, no convictions by the AMC have been, nor will be, reported to civilian authorities.
What are my review and petition rights regarding my punishment?
Punishments imposed by the AMC
You have the right to petition for a punishment review. There are two types of review:
- an automatic review of the punishment will occur in relation to the following circumstances:
- all punishments of detention imposed by the AMC;
- all punishments of detention confirmed or varied on appeal from a summary authority to the AMC; and
- all punishments of detention imposed by a summary authority when the convicted person was offered an election to be tried by the AMC.
- For all other punishments imposed or orders made by the AMC and some summary authorities, you have the option of submitting a petition for punishment review before Monday, 23 November 2009, or such later time as the reviewing authority allows.
Punishments imposed by summary authorities
If a member was tried by a summary authority between 01 Oct 07 and 22 Sep 09 and:
- was given an election to be tried by the AMC,
- elected to be tried by the summary authority, and
- were subsequently tried, convicted and punished by the summary authority,
the member has the option of lodging a petition for punishment review.
If a member was tried by a summary authority between 20 Sep 08 and 22 Sep 09 and:
- was not offered an upfront or ‘in trial’ election, and
- was convicted and punished by the summary authority,
the member has the option of lodging a petition for punishment review.
Petitions for punishment review must be lodged by Monday 23 November 2009, or such later time as the Reviewing Authority permits.
Who will conduct the review of punishments?
The review will be conducted by a Reviewing Authority who is appointed by CDF or a Service Chief.
An ADF legal officer will conduct a review to ensure that the punishment or order is legally correct. The legal officer will make a recommendation to a Reviewing Authority, who is a senior ADF officer. Based on the recommendation of the legal officer, a Reviewing Authority may uphold, quash or vary the punishment. Punishments cannot be increased.
If I don’t have a conviction, can I be tried again?
A person acquitted by the AMC may not be tried by a service tribunal for the same offence.
A person convicted by the AMC upon whom a punishment or order was imposed may not be tried by a service tribunal for the same offence.
A person convicted by the AMC upon whom no punishment or order was imposed may be tried by a service tribunal for the same offence.
Legal Assistance
Punishments imposed by the AMC
Reviews of the punishment of detention that were imposed by the AMC are mandatory. Further, all members who had a punishment imposed or order made against them by the AMC have the right to lodge a petition for a punishment review. Petitions for review of punishments and orders made by the AMC must be lodged by Monday 23 November 2009, or such later time as the Reviewing Authority permits.
Eligible members in these circumstances wanting to lodge a petition, or considering whether they should lodge a petition, for a punishment review should contact the Defence Counsel Service (DCS). DCS is available to provide legal support to ADF members who are affected by either a mandatory punishment review or have the option of submitting a petition for a punishment review.
DCS can be contacted on (02) 6127 4099 or by e-mail to ddcs@defence.gov.au.
Legal assistance through DCS is provided at no cost. Members may seek assistance from a legal practitioner outside the ADF at their own expense.
Punishments imposed by summary authorities
Petitions for review of punishments and orders made by a summary authority must be lodged by Monday 23 November 2009, or such later time as the Reviewing Authority permits.
Members wanting to lodge a petition, or considering whether they should lodge a petition, for punishment review should contact the ADF legal officer at their unit or base in the first instance. Legal support accessed through this means is provided at no cost to you. Members may seek legal assistance from a legal practitioner outside of the ADF, but at their own expense.
Where can I get more information?
ADF legal officers in your unit or base.