Army - The Soldiers' Newspaper

The seat of justice - inside a Defence court room in Victoria Barracks, Sydney.
Photo by Bill Cunneen, Army newspaper

The facts of the matter
The military justice system might appear complex but, in reality, it is straightforward and designed to maintain operational effectiveness

By Cpl Damian Shovell and
Capt Gabrielle Turnbull
What is the Military Justice System (MJS)? What's its purpose and how is it structured? What's the difference between the discipline system and the administrative system and are the two linked?

The MJS can seem a web of complex procedures where, in reality, it can be broken down quite simply. The purpose of this article is to outline the components that make up the MJS and simplify what is essentially a straightforward system.

The Discipline System - includes laws and policy processes for dealing with disciplinary action for members who have committed an offence under the Defence Force Discipline Act (DFDA), including automatic review of convictions and punishments.

The Administrative System - includes laws and policies dealing with administrative inquiries to establish the facts of an incident, administrative action for members who have demonstrated unprofessional judgement or conduct, and redress of grievance and other complaints provisions for members to discuss any matter that affects their service.

Importantly, the MJS applies to all ranks, provides a legal and policy framework able to be applied in Australia and on overseas deployments, and maintain discipline that is imperative to the success of operations.

Discipline system
The purpose of the discipline system is to maintain and enforce military discipline in accordance with the DFDA. The DFDA became effective as part of Commonwealth law in 1985 and all ADF members are subject to it.

When an ADF member allegedly commits an offence that affects the maintenance and ability to enforce military discipline in the ADF, the member is prosecuted under the DFDA, within the discipline system. Otherwise, criminal offences or other illegal conduct are referred to civil authorities, such as the police.

The discipline system includes processes for the investigation of alleged offences, the preferring of charges and the conduct of fair and reasonable trials.

All ADF members have access to free legal advice in the internal discipline system.

The discipline system includes safeguards such as automatic review of convictions and punishments and the right to internal reviews and external appeal. These safeguards are more extensive and rigorous than those available in the civilian criminal system.

Offences that may be processed under the discipline system include fraud, assault, absence without leave (AWOL) and theft.

Administrative system
The administrative system is intended to ensure operational effectiveness and is not a substitute for punishment for an offence under the discipline system.

It includes components that allow the ADF to maintain the expected standard of professional judgement, command and leadership in a military environment.

It includes laws and policy to inquire into the matters that impact on the command and control of the ADF. This is to enable the facts of an incident to be determined and appropriate action to be taken to improve the operation of the ADF.

A high standard of professional conduct is expected of all ADF members. If professional conduct falls below standard, administrative action is taken.

The type of administrative action that might be taken includes counselling, formal warnings, censures, removal from command, and discharge from service. The circumstances of each case are considered when determining what type of action will be taken.

Incidents that may result in administrative action include the misuse of alcohol or other drugs by an ADF member.

Redress of Grievance and other complaints.
The administrative system includes a legally protected Redress of Grievance (ROG) provision that allows an individual to complain about any matter that affects his or her service. All ADF members have access to free legal assistance when making a complaint.

ADF members usually submit a redress or complaint through their chain of command or unit CO. If the member does not wish to do this, there are a number of other internal and external avenues to assist the member.

Internal organisations for dealing with complaints include the Inspector General for the ADF, Defence Whistleblower Scheme and the Directorate of Alternative Dispute Resolution and Conflict Management.

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 reviews of the administrative conduct or decisions made in the ADF, by the Federal Court and higher courts.

Administrative inquiries
Administrative inquiries are not a 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 finding what went wrong. The ADF is then able to initiate reforms that maintain operational effectiveness, prevent a recurrence and save lives.

An administrative inquiry is an internal process that does not place blame and incriminate members in 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.

Most administrative inquiries are conducted by ADF personnel, however, where civilian expertise can make a vital and relevant contribution, a civilian may be appointed to an inquiry, for example, former retired Federal Court Justice James Burchett conducted the inquiry into military justice in 2000-2001.

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 requires ministerial approval for public or other release of inquiry reports.

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 operational effectiveness.