The
Senate Inquiry into Military Justice will commence on March 1
this year, with the report due to be tabled in May. Ultimately
the inquiry is about ensuring that members of the ADF are supported
and protected by an effective Military Justice System (MJS).
The term “Military Justice” often means different things
to different people depending on their knowledge and experience
with it.
There is not a day in the Navy, however, that we are not influenced
or affected in some way by it.
The MJS is comprised of two components: the Discipline System
and the Administrative System.
From Courts Martial to requests to cease shaving, the Defence
Force Discipline Act (DFDA) is at the heart of the discipline
system.
It is an Act of parliament, that is, it is Commonwealth legislation
that can only be altered through the parliament. Without discipline,
the Navy can’t function.
The administrative system provides Navy with the means to conduct
inquiries to establish the facts of an incident and to deal with
unprofessional behaviour or poor performance.
It also provides avenues for individuals to have their complaints
heard, considered and answered.
Discipline
System
The
purpose of the discipline system is to maintain and enforce military
discipline in accordance with the DFDA.
It deals with offences that affect discipline in the ADF, including
offences that are uniquely military and other offences that occur
in a military environment: offences like fraud, absence without
leave (AWOL), and theft of ADF property.
This does not exclude ADF members from civil prosecution for criminal
offences, which will be referred to appropriate civilian authorities
including the police.
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.
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 provisions to inquire into the facts of any matter.
Incidents that may result in administrative action being taken
against an individual include incidents where a member’s
actions bring discredit to the ADF or if a member is found to
have misused alcohol or other drugs.
Options for administrative action include counselling, formal
warnings, censures, removal from command, and discharge from service.
Redress
of Grievance (ROG) and other complaints
The
administrative system includes a legally protected ROG provision
that allows an individual to complain about any matter that affects
his or her service, and also provides legal guidance to any ADF
member wishing to make a complaint.
Although ADF members usually submit a redress or other complaint
through their chain of command, a number of internal and external
organisations are available to assist if for some reason this
is not appropriate.
This part of the MJS is about protecting the rights of the individual
and ensuring natural justice is available to all.
Administrative
Inquiries
The
purpose of an administrative inquiry is to determine the facts
of an event or incident, not to apportion blame.
With this information the Navy can then ensure the maintenance
of operational effectiveness, prevent a recurrence and save lives.
Most administrative inquiries are conducted by ADF personnel;
however, in exceptional cases civilians may be involved.
A civilian may be appointed to be on a Board of Inquiry, or to
be an investigating officer; for example, civilians were members
of the Boards for both the HMAS Westralia fire and LS Gurr Boards
of Inquiry.
The reports resulting from an inquiry are generally not available
to the public because of privacy and security obligations.
These legal protections are necessary to encourage openness and
confidence in the inquiry to enable the true facts to be determined.
In some cases reports are released, however this requires Ministerial
approval.
The MJS applies equally to all ranks.
It provides a legal framework able to be applied on worldwide
operations and maintains the discipline imperative for the success
of operations.
All of us have a vested interest in its success.
All ADF members have access to free legal advice in the internal
discipline system.
It is an essential process that does not place blame or incriminate
members involved for offences under the discipline system.
For
further information on the Military Justice System, go to www.defence.gov.au/mjs.
