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Military Justice System

What is the military justice system?

The military justice system is a generic term which covers functions such as discipline in the Australian Defence Force, administrative action to support ADF policy, inquiries to establish facts relevant to operation and command of the ADF, and the provisions for review and management of complaints.

The system is essential to ADF operational effectiveness and it complies with Commonwealth laws. Military members are subject to the same laws as apply to other Australians. The military justice system applies to all ranks. All ADF members have an interest in the success of the system.

The four components of the military justice system are:

Discipline system

In 1982 the Federal Government introduced the Defence Force Discipline Act 1982 (DFDA) as a part of Commonwealth law. This law became effective in 1985, and all ADF members are subject to it.

The purpose of the DFDA is to maintain and enforce military discipline.

The discipline system is necessary for ADF operational capability by dealing with offences that affect military discipline. This includes offences that are uniquely military and other offences that occur in a military environment.

Offences by ADF members are prosecuted under the DFDA, within the military justice system, when the offence substantially affects the maintenance and ability to enforce Service discipline in the ADF. Otherwise, criminal offences or other illegal conduct are referred to civil authorities, such as the police.

The military justice system provides the ADF with an Australian legal framework able to be applied on operations anywhere in the world. This is essential because the ADF may conduct operations in countries where the civil system has broken down and no law applies.

The military justice system applies to all ADF members in times of peace and war, whether in Australia or overseas. ADF members must maintain the high level of discipline required on operations, at all times.

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

All ADF members have access to free legal advice in the internal discipline system. This is unique to the military.

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.

Adverse administrative action

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

Administrative action includes counselling, formal warnings, censures, removal from command, and discharge from service.

Right to complain

There are a number of internal and external organisations to assist ADF members in making a redress or complaint. Usually members submit redress or other complaints through their commanding officer or chain of command. If this course of action is not appropriate then members are able to seek other avenues for complaints.

Internal organisations for dealing with complaints include:

  • Values, Behaviours & Resolutions; and
  • Inspector General ADF.

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

Administrative inquiries

The Defence (Inquiry) Regulations 2018 (the Regulations) prescribe matters providing for, and in relation to, inquiries concerning the Defence Force. Inquiries under these Regulations are not ends in themselves. Their purpose is to facilitate the making of decisions relating to the Defence Force by providing the most important enabler of a good decision—accurate, reliable and timely information.

Inquiries under these Regulations are designed to assist command in securing the proper functioning of the Defence Force; they are not about individuals as such and are not an external accountability mechanism. The legal powers and protections provided under these Regulations, such as the ability to compel the production of evidence, enable robust and thorough investigations that furnish commanders and other Defence leaders with the facts and circumstances associated with an incident or circumstance. Internal inquiries are critical to supporting informed decision-making by command about complex incidents that can affect all aspects of the Defence Force.

The Regulations provide for two flexible inquiry formats: a Commission of Inquiry and an Inquiry Officer Inquiry. The former will be used for higher level matters that are particularly complex and sensitive, while the latter will be used to inquire into more routine matters.

The Regulations replace the Defence (Inquiry) Regulations 1985 (the old Regulations), which allowed for five separate forms of inquiry: General Courts of Inquiry, Boards of Inquiry, Combined Boards of Inquiry, Chief of the Defence Force (CDF) Commissions of Inquiry and Inquiry Officer Inquiries.