The 'Defence Criminal Code Project' sounds as though it should be conducted deep underground. In fact it was conducted high above and was the cause of some nervous moments as, because of the general election, Parliament was about to be prorogued and the Executive Council was about to begin undertaking caretaker activities.

The legislative part of the project had to pass both houses to be enacted by 27 September 2001 and the regulations had to be made by the Governor-General in Council by 5 October 2001. The project was to bring all Defence portfolio legislation and regulations (in particular the Defence Force Discipline Act) into line with Commonwealth law, the Code harmonisation process that had taken the Defence legal team a considerable amount of effort to bring to fruition.

'What we had to do was identify what had to be changed in the Defence Force Discipline Act, for example and a range of other legislation and regulations by Defence. We then had to develop drafting instructions to the Office of Parliamentary Counsel and the Office of Legislative Drafting to tell them what needed to be changed, how we thought it needed to be changed and what outcome we were seeking,' said Defence General Counsel Ian Clarke.

'Office of Parliamentary Counsel and the Office of Legislative Drafting operate on instructions from the Agency that's administering the legislation, in this case Defence, and we have to tell them what it is that we want changed and why we want it changed and what outcome we seek. In this case, the Criminal Code Act of 1995 required that legislation and regulations administered by all agencies be consistent with the Criminal Code by 15 December of this year.

'Parallel to the issue of drafting instructions is a policy process involving the Attorney General's Department, the primary policy driver for the Code harmonisation project. We had to discuss with them the sort of changes that we wanted to see made - particularly with the DFDA in the context of what was allowable within the Criminal Code harmonisation process.

'There were a few things in the DFDA that we wanted to have changed. We needed those changes to enable the DFDA to operate in a consistent manner before and after the amendments take effect. They weren't pure harmonisation exercises. So we had to get policy approval for those extra bits and that required us to get approval from the Minister for Justice and the Minister assisting the Prime Minister for those non-harmonisation changes. And there were some difficult policy issues involved in looking at the DFDA and Attorney General's had to work through those issues with us, primarily with Jeanne [Wing Commander Hugoe-Matthews] and Andrew [Lieutenant Colonel Dunn] to get where we needed to be-to have a consistent and workable DFDA next year.'

WGCDR Hugoe-Matthews says the whole process was about working out what the Criminal Code actually required by way of amendments '…and on the other hand, working out what we wanted with regard to our legislation. The whole negotiation process was about finding the best fit based on the parameters set by the Code and our Departmental requirements…'

The Defence team didn't have a lot of room to manoeuvre because the Criminal Code is law, in place since 1995. So the key objective of the harmonisation process was to make absolutely certain that the DFDA was in step with the Criminal Code.

Chapter 2 of the Criminal Code rewrites what is called criminal responsibility for offences. Offences have to be broken up into certain elements. The Criminal Code renames elements of offences and sets out a standard structure of elements of offences for all Commonwealth offences. This means that all the offences had to be written so they comply with this new formula. This formula applies to the DFDA as it would to any other provision containing a criminal offence.

WGCDR Hugoe-Matthews: 'it's just that the way the offence is written that has changed. The Criminal Code requires us to break down the offence into various elements'.

'I'll use "absence from duty" as an example. "Absence from duty" used to say that a person who fails to attend for duty or ceases to perform duty earlier than permitted is guilty of an offence with 12 months imprisonment maximum punishment. Now the offence is clearly split into two parts dealing with the failure to attend for duty and ceasing performance of duty early.'

Mr Clarke said the end result was that the DFDA tells the prosecution and defence clearly what they have to prove or defend - each particular element of the offence. 'Some offences are what we call "strict liability", for example most offences require you intend to engage in conduct. So, in the case of "absence from duty" - not fronting up for duty - normally you'd have to show intention not to attend. If you make the offence "strict liability" it means the prosecution only has to show the person didn't show up for duty as a matter of fact and not that the person intended not to show up also. That's the way we've always interpreted the DFDA absence from duty offence but it's never been spelled out.'

Under the Criminal Code the DFDA section will now say: "This is a strict liability offence" so the defence will know the prosecution does not have to prove intent. However, there's also a statutory defence for the defence to show that they had a reasonable excuse for failing to turn up. So, from a prosecution and defence point of view what each has to prove is set out more clearly and is more easily identifiable.

'We sent a minute to CDF, the Secretary and the Service Chiefs, copied to the JAG, asking for their approval to run the project under the oversight of TDLS so that we didn't have to keep going back to them for approval on various specific issues and they agreed,' said WGCDR Hugoe-Matthews.

Mr Clarke found himself with oversight of the whole project: 'my observation was that these guys did all of the hard work. I had the easy bit. I had the oversight and I had a bit of involvement in developing papers for the introduction of the bill but generally I was there as a consultant and simply oversighting the entire project. It was very important - critically important to the military justice and discipline system. The system would fall into disarray next year if we hadn't done this'.

LTCOL Dunn: '…the key thing to remember which some people may be concerned about, this wasn't a process where we could change and fix up parts of the DFDA which we're not happy with. It wasn't a way of widening DFDA offences or changing DFDA procedures. All it does is make the elements of DFDA offences easier to prove or defend - whether you're a prosecutor or defending officer. It was completely a harmonisation exercise with the Criminal Code Act. All we could do was convert the DFDA offences into the Criminal Code format'.

'We weren't allowed to use this as a basis for rewriting parts of the DFDA. For example, we couldn't use it to implement some of the Burchett recommendations about changes. That's a separate process. We were limited in what we could do by the whole process of harmonisation.'

Mr Clarke: 'People who are not lawyers administer the DFDA mainly-except for courts martial and Defence Force Magistrates proceedings. COs hear charges, NCOs and Warrant Officers prosecute and defend and it's something that is used to maintain discipline - in non-criminal offences - using a trial-type process that has to be able to work overseas - on ships and around the world. It has to be user-friendly and the Criminal Code is actually one way of making the offence-creating provisions more user friendly because they should be easier to understand.'

Clarity, certainty, consistency and reliability of outcomes are what the team aimed for, and succeeded in achieving.

Next comes the education process. Train the trainer sessions for ADF permanent and reserve legal officers were run in Canberra at the end of October and follow on training in the regions is planned between November 2001 and February 2002 for other legal officers, military police and DFDA officials like COs, RSMs and equivalents and prosecuting and defending officers.

The team has also started work on amending its key publication, the Discipline Law Manual (ADFP 201). If you'd like further information see the 'What's New/Criminal Code Updates' section of The Defence Legal Service web page URL: www.defence.gov.au/legal.

By Hugh McKenzie