How
our justice system works
It
might seem complex but the Military Justice System is relatively
straightforward,
CPL
Damian Shovell and CAPT Gabrielle Turnbull report
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The
components that make up the Military Justice System.
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by Bill Cunneen and David Sibley
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What
is the Military Justice System (MJS)? What is 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.
In
simple terms, the MJS encompasses two main components:
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 drugs by an ADF member.
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.
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 members do not wish to do this, there are a number of other
internal and external avenues to assist them.
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 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, 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.
For
more information, go to www.defence.gov.au/mjs
