"March in the Guilty Bastard"[1]? - Administrative Action and Military Discipline

Advanced Military Administrative Law Subject, University of Adelaide Law School

Panel Discussion (via Audio-visual link)

Justice Logan[2] 28 October 2022

In general, there is no invariable, necessary antipathy between an acquittal and an administrative finding that the conduct the subject the criminal charge concerned occurred. In principle, this must be so. In criminal proceedings, guilt must be proved by the prosecution beyond reasonable doubt and by admissible evidence. In administrative decision-making, concepts such as burden of proof and a standard of proof of beyond reasonable doubt on admissible evidence in relation to conduct which would constitute a contravention of the criminal law are foreign, borrowed from a universe of different discourse which has criminal litigation as its subject.[3] Rather, to avoid a conclusion of jurisdictional error, an administrative decision must be made on the basis of at least some material which logically and rationally supports that decision, take any relevant consideration into account, exclude any irrelevant consideration and not otherwise be unreasonable.[4] If the decision is one upon which reasonable minds might reasonably differ that feature is not, on judicial review, in itself indicative of jurisdictional error.[5]

These statements, true in their generality, have the potential at least to mislead, if not to be productive of illegality and related injustice in the particular context of a decision administratively to discharge a member of the Australian Defence Force (ADF) prior to, following, or even in lieu of, the disposal to finality of proceedings in respect of a service offence within our military discipline system, especially if viewed as an alternative to the conduct of such proceedings.

Further, under the general law, the continuance of administrative processes and sometimes even their institution can, in certain circumstances, constitute a contempt of court.[6] Where proceedings are pending before a service tribunal, there is potential for an ADF administrative discharge process to constitute a contempt of such a tribunal.

It is necessary to insert the qualification “potential” in relation to each of these observations for two reasons. Firstly, the metes and bounds of the relationship between administrative discharge and such disposal have not as yet been definitively considered by the courts. Secondly, but related to the first reason, prudence dictates that any expression of a personal view on the subject by a serving judge must necessarily be provisional. To be clear, I have no concluded view on the subjects now canvassed.

Before further proceeding, some definitions are necessary.

By “administrative discharge”, I refer to administrative discharge by early termination of the service of a member of the ADF pursuant to s 24(1)(c) of the Defence Regulation 2016 (Cth) (Defence Regulation), made under the Defence Act 1903 (Cth). That permits the service of a member of the ADF to be terminated by the Chief of the Defence Force (CDF) (or his delegate), before it would otherwise terminate in any event, on the basis that, “retention of the member’s service is not in the interests of the Defence Force”. Section 24 of the Defence Regulation additionally permits early termination on medical fitness and redundancy grounds but the very nature of these grounds makes it inherently unlikely that they would be productive of any inconsistency with an outcome in the military discipline system.

The expression, “interests of the Defence Force” is defined,[7] in a non-exhaustive way. It includes reasons relating to one or more of the following:

(a) a member’s performance;

(b) a member’s behaviour (including any convictions for criminal or service offences);

(c) a member’s suitability to serve:

(i) in the Defence Force; or

(ii) in a particular role or rank;

(d) workforce planning in the Defence Force;

(e) the effectiveness and efficiency of the Defence Force;

(f) the morale, welfare and discipline of the Defence Force;

(g) the reputation and community standing of the Defence Force.

Australia’s military discipline system consists of the following.

Provision is made by the Defence Force Discipline Act 1982 (Cth) (DFDA) for the creation of service offences and their trial, punishment on conviction and review within the ADF chain of command, the latter subject to the reception of reports by a reviewing legal officer appointed from a panel approved by the Judge Advocate General (JAG) or further reviewed by the JAG or a Deputy JAG. Appeals against convictions in respect of service offences (but not punishments) may be made to the Defence Force Discipline Appeal Tribunal (DFDAT), pursuant to the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act). An appeal on a question of law lies from the DFDAT to the Federal Court of Australia.[8] Although termed an “appeal”, such a proceeding is strictly one in the court’s original jurisdiction.[9] Even so, given that the DFDAT is in modern times constituted by three superior court judges, the court’s practice is for such an “appeal” to be heard by a Full Court constituted by five judges. An appeal against a judgement of the Federal Court on such an appeal may be made to the High Court of Australia by special leave of the High Court.[10]

At present, the Defence Department’s website refers, under the heading “Military Justice”, to the scheme for which the DFDA and Appeals Act provide and “adverse administrative action”.[11] It is stated:

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.

For reasons which are developed in this paper, so to conceive of what constitutes the “military justice system” is, with all respect, fraught. There is no justice system parallel or even alternative to the scheme found in the DFDA and the Appeals Act for the disciplining of members of the ADF.

After a lengthy period of controversy in modern times, it is now settled that the service tribunals for which the DFDA provides do not exercise the judicial power of the Commonwealth under Chapter III of the Constitution. They are constituted, in the valid legislative exercise by parliament of the defence power,[12] to hear, determine and, on conviction, impose or order punishments in respect of charges for service offences for which that Act provides.[13] It is also settled that, while the jurisdiction to hear and determine charges in respect of service offences might alternatively be conferred on a court established under Chapter III of the Constitution, any purported conferral on a court the members of which do not enjoy the tenure and other terms of office for which s 72 of the Constitution provides is invalid.[14]

In relation to the disciplining of individual members of the ADF, the DFDA is an exhaustive statement by the parliament of the persons or tribunals who may, on conviction, impose or order disciplinary penalties. Neither the CDF nor a service chief is, ex officio, such a person. Materially, their role is confined to the appointment of reviewing authorities to review proceedings (including sentences imposed or orders made on conviction).[15] Further and axiomatically, as officers of the Commonwealth within the executive branch for which Chapter II of the Constitution provides, neither the CDF nor a service chief is lawfully entitled to exercise the judicial power of the Commonwealth.[16]

Officers appointed under Chapter II of the Constitution may lawfully be authorised by statute to exercise disciplinary powers conferred in respect of subordinates. R v White; ex parte Byrnes[17] offers an example of the lawful conferral of such powers in respect of the civil service. But in relation to the military service, the ADF, such powers are solely found within the DFDA.

It is therefore, with respect, heretical to conceive of the exercise by the CDF or a service chief delegate of the administrative power conferred by s 24 of the Defence Regulation as forming part of any justice system, military or otherwise.

At common law, the relationship between the Crown and a member of the Armed Forces may be terminated without notice and for any reason, no reason or a mistaken reason.[18] In Australia, the authority for the existence of the ADF depends not on the prerogative but rather on statute.[19] In relation to termination of service in the ADF, the relevant inquiry is the extent to which and the manner in which the common law position has been modified by or under statute.[20]

Especially given the subjects specified in the definition of “interests of the Defence Force” and that the definition is not exhaustive, it is difficult to see how s 24(1)(c) of the Defence Regulation leaves any residual operation for the common law in relation to the early termination of the service of a member of the ADF. That is not to say that the common law position is irrelevant to the construction of s 24(1)(c).[21] So construing s 24(1)(c) of the Defence Regulation confirms what the text alone would suggest. Even as non-exhaustively defined, many of the subjects covered by “interests of the Defence Force” entail matters of subjective evaluation by the CDF or his delegate.

An early termination decision is amenable to judicial review, either in the original jurisdiction of the High Court under s 75(v) of the Constitution or, pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) in the Federal Court, each on jurisdictional error grounds, or in either the Federal Court or in the Federal Circuit and Family Court of Australia (Division 2) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on one or more of the grounds specified in s 5 of that Act. That there are evaluative qualities in subjects which may be considered in relation to whether early termination is in the interests of the Defence Force does not render a decision impossible to review, although, as with the general public law position stated above, if the CDF’s conclusion were nothing more than one upon which different views might reasonably be reached, it would not be within the remit of a court to quash it.[22]

On their face, two of the subjects specified as falling within “the interests of the Defence Force” may overlap with conduct constituting a service offence under the DFDA – “a member’s behaviour (including any convictions for criminal or service offences)” (emphasis added) and “the morale, welfare and discipline of the Defence Force” (emphasis added). Other subjects may overlap implicitly – a member’s “suitability to serve” and “the reputation and community standing of the Defence Force”.

The power to make s 24 of the Defence Regulation is found in s 124(1)(a) of the Defence Act, which permits the making of regulations with respect to, “(a) The enlistment, appointment, promotion, reduction in rank, retirement and discharge of members of the Defence Force” (emphasis added). The chapeau to s 124(1) of the Defence Act contains the classic “required or permitted to be prescribed, or which are necessary or convenient to be prescribed” formulation in the general authority for the making of regulations by the Governor-General “for securing the good government of the Defence Force, or for carrying out or giving effect to this Act”.

In the absence of any particular statutory provision, there is no doubt that the breadth of this formulation would be sufficient to permit the making of regulations for the discipline of the ADF. Indeed, for most of the last century the discipline of the Australian Army was governed by regulations made under the Defence Act.[23] However, since its commencement, the discipline of the ADF has exclusively been the province of the DFDA. It is the DFDA, with all of its elaborate provision as to what constitutes a service offence, who may commit the same and the investigation, trial (including law of evidence) and review of outcomes which, in conjunction with the Appeals Act, is the disciplinary code for the Australian profession of arms.

In the absence of specific legislative authority authorising the making of a regulation which is inconsistent with an Act, a regulation which is inconsistent with an Act is, to the extent of the inconsistency, invalid. The relevant principle was stated by Woodhouse P in Combined State Unions v State Service Co-ordinating Committee:

It is an important constitutional principle that subordinate legislation cannot repeal or interfere with the operation of a statute except with the antecedent authority of Parliament itself. It is a constitutional principle because it gives effect to the primacy of Parliament in the whole field of legislation. And as a corollary a rule of construction springs from it that the Courts will not accept that Parliament has intended its own enactments to be subject to suspension, amendment or repeal by any kind of subordinate legislation at the hands of the Executive unless direct and unambiguous authority has been expressly spelled out to that effect, or is to be found as a matter of necessary intendment, in the parent statute.[24]

There is nothing in s 124 of the Defence Act which authorises the making of a regulation which is inconsistent with the DFDA. It is therefore arguable that s 24(1)(c) of the Defence Regulation does not authorise the early termination of a member of the ADF by the CDF or a delegate service chief for the purpose of disciplining that member. More particularly, the reference in paragraph (f) of the definition of “the interests of the Defence Force” to “the morale, welfare and discipline of the Defence Force” does not mean that s 24(1)(c) of the Defence Regulation authorises the making of an administrative decision to discipline by early termination an individual member of the ADF. That is distinct from an administrative conclusion on particular facts that the continuance of a particular individual as a member of the ADF adversely impacted upon “the morale, welfare and discipline of the Defence Force” as a whole. The expression “the morale, welfare and discipline of the Defence Force” is a composite, referring to the ADF as a whole.

Even where a different purpose from the disciplinary is abroad in relation to the making of a decision under s 24(1)(c) of the Defence Regulation, the position is highly nuanced where the conduct which grounds the decision has been dealt with by a service tribunal (or in an appeal therefrom) or even where the conduct may constitute a service offence.

Although it is now settled that service tribunals constituted under the DFDA do not exercise judicial power under Chapter III of the Constitution, they are at least required to act judicially.[25] The same may be said of the DFDAT, the jurisdiction of which is akin to that of a civilian court of criminal appeal.[26]

In relation to whether, as a matter of law, particular conduct does or does not constitute a service offence under the DFDA, there can be no doubt that the conclusion either of the Federal Court on an appeal from the DFDAT or of the High Court upon a further appeal is binding not just on the defence member concerned but also on the CDF and his delegates, including a service chief. If a court held that particular conduct was lawful, it would not be open to the CDF or a service chief delegate administratively to conclude, for the purpose of exercising the early termination power conferred by s 24(1)(c) of the Defence Regulation, or otherwise, that the conduct was not lawful.

For example, in relation to Major Ting Li, it would not have been open to the Chief of Army later to conclude administratively for the purposes of a termination decision that his conduct amounted to a “disturbance” other than by reference to the elements of that service offence as explained by the High Court on his successful appeal.[27] It would have been nothing to the point that, before the Restricted Court Martial which tried him in respect of the charge, commission of that service offence could only occur if the panel were satisfied of guilt beyond reasonable doubt and on admissible evidence,[28] whereas an administrative conclusion that the defence member concerned had engaged in the conduct concerned need only be based on material, be that admissible evidence or otherwise, reasonably admitting of such a conclusion. That is because what does or does not as a matter of law constitute a service offence has nothing to do with the standard of proof or existence or otherwise of supporting evidence, be that admissible under the rules of evidence or otherwise.

Similarly, if a court exercising Commonwealth judicial power held that there was lawful authority to engage in the conduct charged as a service offence, differences in the nature of administrative decision-making would not permit the CDF to conclude, for the purposes of a termination decision, that there was no lawful authority to engage in that conduct.

A service chief will always be a party to a proceeding before a service tribunal or the DFDAT. In relation to the legality of conduct said to constitute a service offence, although neither a service tribunal nor the DFDAT exercises judicial power under Chapter III of the Constitution, it is difficult to see why, given the nature of the power conferred, an acquittal based on conclusion that particular conduct was lawful, be that in a ruling of a judge advocate under s 134 of the DFDA, in a decision of a Defence Force magistrate (DFM) trying a charge under s 135 of the DFDA, in a review informed by a report under s 154 of the DFDA by a legal officer, or a further report under s 155 by the Judge Advocate General or a Deputy Judge Advocate General or in a decision of the DFDAT would not preclude the CDF or a delegate service chief from concluding otherwise in an administrative decision with respect to early termination. Such conclusions would “inform the conscience of command”.[29]

For example, it is difficult to see how, in any later administrative decision concerning Captain Stefan King RAN, the Chief of Navy could lawfully have done other than construe the Defence Determination concerning entitlement to a particular allowance otherwise than in accordance with that adopted by the DFDAT in CAPT King’s successful appeal against his conviction by a General Court Martial.[30]

Legality of conduct aside, it is the DFDA, and the DFDA alone, which provides for the punishment of conduct which constitutes a service offence. One such punishment is dismissal from the ADF.[31]

The notion of “informing the conscience of command” may have wider ramifications in relation to the ability to exercise the power of early termination conferred by s 24(1)(c) of the Defence Regulation. That is so where, although it is open to it to impose that punishment, a service tribunal has refrained from imposing the punishment of dismissal from the ADF. The DFDA envisages that a reviewing authority (and thus an appointee or the CDF or a service chief) may mitigate but not exceed a punishment imposed by a service tribunal.[32]The DFDAT has observed, in obiter:

In a case where a court martial panel has deliberately chosen not to impose a sentence of dismissal from the Australian Defence Force on a defendant and, instead, imposed a sentence in which an opportunity for rehabilitation is an element, the taking of such administrative action could be regarded as undermining the court martial process.[33]

In a later decision,[34] the DFDAT elaborated, again in obiter, upon why that might be so, having regard to the function of a service tribunal to “inform the conscience of command”:

121. The subsequent administrative decision to initiate action to terminate his service could have produced quite a different outcome for the appellant. This Tribunal is not reviewing that decision and its factual basis and the reasons for it are not before this Tribunal. But the appellant has contended in documents before this Tribunal that the termination action initiated against him was based upon the same or substantially the same facts as those that led to his convictions. This Tribunal is not charged with deciding whether that contention is correct or not.

122. But the contention raises a wider question about administrative decisions after DFDA action against a member and the authority of the decisions of superior service tribunals under the DFDA. The apparatus of the Appeals Act provides for public external review of the conviction, but not the punishment, of defence members by superior service tribunals under the DFDA. The public functions of review by this Tribunal under the Appeals Act are one of several statutory safeguards that maintain confidence in the independent administration of justice under the DFDA leading to both conviction and punishment. Another statutory safeguard is the requirement under DFDA, s 140 for superior service tribunals to hold trials in public.

123. This Tribunal’s functions in scrutinising the proper administration of justice leading to conviction by superior service tribunals, give it an interest in matters which may undermine the authority and independence of those tribunals, even matters occurring after conviction. Maintaining public confidence in the convictions of superior service tribunals is not limited to looking at events before conviction.

124. An administrative decision made close in time to a punishment imposed by a service tribunal under the DFDA, but which produces on substantially overlapping facts an outcome which may objectively be described as more severe, may need to be reconciled with the operation of DFDA, s 162.

125. Several provisions of the DFDA prohibit commanders from increasing punishments imposed under the DFDA. Under DFDA, s 68 a commanding officer of a convicted person “may moderate the consequences of” a punishment “imposed” by service tribunal, but has no power to increase the punishment. And upon review of action under DFDA, Pt IV under DFDA, s 162 a conviction may only be quashed under s 162(1) if it is “excessive” or “wrong in law” and once quashed any substitute punishment imposed under s 162(5), “shall not...be more severe” than the punishment imposed by the service tribunal. No power exists in the reviewing authority to quash a conviction on the grounds of insufficiency of punishment.

126. An administrative decision maker considering termination of a defence member after DFDA action on facts substantially overlapping with the DFDA action does not act as a reviewing authority under the DFDA. But such a decision-maker may have to examine real questions of continuing fidelity to the commands of DFDA, s 68 and s 162 and what punishment is being imposed in practice and whether the administrative decision is consistent with the maintenance of good conscience by command.

127. DFDA, s 68 and s 162 reflect well-established principles that military command is bound to observe good conscience in punishing a defence member. The High Court in Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230, at [85] (Lane), identified that the central point of the court-martial within military command structures such as the ADF is to inform the conscience of the commanding officer. In Lane, at [85], the High Court cited the following reasoning of Platt J in the Supreme Court of New York in Mills v Martin (1821) 19 Johns 7, at 30, as accurately capturing this aspect of the role of the court-martial within the command system:

The proceedings of the court-martial were not definitive, but merely in the nature of an inquest, to inform the conscience of the commanding officer. He, alone, could not condemn or punish, without the judgment of the court-martial; and, it is equally clear, that the court could not punish without his order of confirmation.

128. The court-martial informs the conscience of command and command acts on good conscience by confirming or moderating, but not increasing, the punishment fixed by the court-martial. Recognising that a punishment imposed by a service tribunal in relation to a defence member sets the upper limit of post-conviction action binding on the conscience of command for that member provides safeguards for the ADF and for the member.

129. For command, it promotes military cohesion and defence members’ acceptance of discipline decisions by separating command from any perception of personal bias or ill-will in the exercise of discipline. For the member punished, command’s fidelity to good conscience in confirming or moderating punishments confers security and stability and promotes loyalty to the service in that member and in all members who see command observing the precepts of good conscience in punishments.

130. Moreover, as this Tribunal emphasised in Howieson v Chief of Army [2021] ADFAT 1, at [62] (Howieson), an administrative decision to terminate a member’s service where a court-martial has imposed a sentence which gives the member an opportunity for rehabilitation “could be regarded as undermining the court-martial process”. We add the reasoning here to that to that expressed in Howieson on this subject.

131. If the obligations of good conscience upon command in imposing DFDA punishments recognised in Lane and embedded in DFDA, s 68 and s 162 are ignored post-conviction, leading to the administrative termination of the service of defence members, stigma, loss of morale and confidence in the administration of justice in the ADF may be most acute for those directly affected by the termination but similar effects are likely to be felt more widely. But more broadly, as Howieson emphasises, the authority of DFDA in specialist superior service tribunals seeking to do justice by balancing rehabilitation against other sentencing factors may also be undermined.

132. This question may need to be addressed in the future when what it means to “impose” a punishment under the DFDA falls to be decided; and whether that means more than just to pronounce the punishment but to carry it out.

There are other features of the DFDA which may intrude in relation to any purported use of the early termination power in s 24(1)(c) of the Defence Regulation as a disciplinary measure.

The DFDA sets up a system of prosecutions by a statutory office holder,[35] the Director of Military Prosecutions (DMP). Although a serving officer, the DMP is not amenable to direction within the chain of command in respect of the functions of that office. The DFDA envisages that the DMP, not the CDF or a service chief, will exercise a prosecutorial discretion in relation to charges in respect of service offences referred to the DMP.[36] Further, the DMP, is, ex officio, an “authorized member of the Defence Force”[37] and thereby enabled, of the DMP’s own motion, to initiate proceedings in respect of a charge alleging the commission of a service offence.[38]

The evident purpose of the latter power is that the DMP is empowered to initiate proceedings in respect of a service offence even where the CDF, a service chief or other senior officer, perhaps for policy reasons, is not disposed to see that course of action taken. In circumstances where there exist reasonable grounds to suspect the commission of a service offence by a defence member, the initiation of an administrative procedure to terminate early the service of that defence member, prior to the receipt of advice from the DMP that it has been decided not to initiate proceedings in respect of the service offence (because, for example, of insufficiency of evidence) could be seen to be subversive of the independent exercise of the powers deliberately vested by parliament in the DMP.

The DFDA does not presently contain a provision in relation to the reporting of service offence analogous to s 316 of the Crimes Act 1900 (NSW)[39], which penalises the concealment of serious indictable offences. However, it is by no means impossible to see how the deliberate concealment by the CDF or a service chief delegate of the occurrence of conduct which may amount to a service offence and dealing with the same administratively so as to avoid that conduct being dealt with under the DFDA, including via the making of decisions by the DMP, might, objectively, be regarded as prejudicial conduct contrary to s 60(1) of the DFDA[40] and thus itself a service offence. In relation to whether there existed such prejudicial conduct, much might depend on whether there had been an investigation to the end of gathering admissible evidence and, if not, why not and, as I have observed, whether the DMP had decided not to initiate proceedings.

Beyond subversion of the independent function of the DMP, any use of administrative discharge as an alternative to proceedings under the DFDA in respect of a service offence is subversive of the entire, elaborate processes and safeguards for which the DFDA provides. Not the least of these is the right of a service member to elect to be tried by court martial or a DFM.[41]

Contempt of a service tribunal is made an offence by s 53 of the DFDA. One circumstance in which such an offence may be committed is where a person who is a defence member or a defence civilian “engages in any other conduct that would, if a service tribunal were a court of record, constitute a contempt of that court”.[42] It has been held that the establishment of a royal commission to inquire into the question whether an offence had been committed, when a prosecution for the offence was already pending offers an example of such a contempt, as may the continuance of such an inquiry “if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations”.[43] In circumstances where there this type of overlap exists, the appropriate course is to adjourn the administrative proceeding pending final resolution of the criminal proceeding.[44] There may well be analogies in relation to the initiation or continuance of an administrative inquiry process to the end of early termination of the service of a defence member while a proceeding in respect of an alleged service offence by that defence member is pending.

Of course it is possible to envisage circumstances in which, via lapse of time or otherwise, it is just not reasonably possible to obtain admissible evidence of the commission of a service offence but there is material which might reasonably admit of a conclusion that an individual has engaged in particular conduct, In turn, that might reasonably admit of an administrative finding that one or more of the criteria specified in the definition of “interests of the Defence Force” is met. In the absence of a sentencing decision of a service tribunal where dismissal was open but not availed of, an administrative decision in the exercise of a power of early termination of membership of the ADF on behavioural, suitability, general ADF morale, welfare and discipline or reputational grounds based on particular conduct is, as with decisions expelling a person from other learned professions, protective, not punitive in character.[45]

It is also possible to envisage circumstances where, on the evidence and for reasons other than a conclusion that the conduct charged was lawful, a service tribunal is not satisfied that the service offence charged beyond reasonable doubt but where, after observing procedural fairness, it is reasonably possible administratively to conclude that the defence member concerned did engage in that conduct and that, on one or more of the bases mentioned in the defence of “the interests of the Defence Force”, early termination of service should occur. In relation to any such administrative decision by the CDF or a service chief, the material before the service tribunal would always constitute a relevant consideration.[46]

It has never been the case under the general law that all criminal conduct must be prosecuted.[47] A number of discretionary factors intrude.[48] There is nothing in the DFDA which would suggest that any different position prevails in relation to service offences. Recognition of this position and relevant discretionary factors is evident in the DMP’s prosecution policy.[49] But, in relation to service offences, parliament has consigned the policy value judgement as to whether to institute a proceeding under the DFDA to the DMP, not to the CDF or a service chief.

Administrative decisions concerning early termination of service are not manifestations of military justice. Rather, within the Australian profession of arms, they are professional regulatory decisions. It is important neither to conflate the two nor for such professional regulatory decisions to subvert what is truly military justice namely, the rights and procedures for which the DFDA provides, including the independent prosecutorial discretion vested in the DMP.

©J A Logan 2022 Moral right of author asserted. Non-exclusive publication licence granted to the University of Adelaide.



[1] “An apocryphal announcement reputedly stated by curmudgeonly senior officers presiding over summary trials, usually taken to imply that any soldier, having been charged, was certainly guilty of some crime and deserving of punishment, even if not guilty of the charge about to be read.”, an explanation of "March the Guilty Bastard In" given by Captain Michael M. O'Leary, in his article of that title originally published in the regimental journal of The Royal Canadian Regiment, Pro Patria 2010, republished online on the Royal Canadian Regiment website under the title, “The Regimental Rogue”: http://www.regimentalrogue.com/rcr_great_war/rcr_great_war_thomas_ryan_guilty_bastard.html Accessed 25 October 2022; see also Des Lambley, March in the guilty bastard, Zeus Publications, 2012, a history of courts martial and courts of inquiry in the Australian Army. The supposed use of such an announcement was, in the author’s experience well-known in the Australian Army, although foreign to the author’s experience of summary proceedings, and usually regarded as originating in the British Army.

[2] A Judge of the Federal Court of Australia and of the Supreme and National Courts of Papua New Guinea; President, Defence Force Discipline Appeal Tribunal.

Caveat - The views expressed in this paper are personal and, necessarily, provisional. They not to be regarded as those of either the Australian or Papua New Guinea governments or any court or tribunal of which the author is a member.

[3] See, by analogy, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282.

[4] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [129]-[131] (Crennan and Bell JJ).

[5] Ibid.

[6] Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 25, at 53 (BLF Case) per Gibbs CJ.

[7] s 6(2), Defence Regulation.

[8] s 52, Appeals Act.

[9] Hembury v Chief of General Staff (1998) 193 CLR 641 at [31].

[10] s 33(3), Federal Court of Australia Act 1976 (Cth). Li v Chief of Army (2013) 250 CLR 328 offers an example of a DFDAT proceeding which progressed to the High Court.

[11] Department of Defence, Military Justice System: https://defence.gov.au/mjs/mjs.asp Accessed, 23 October 2022.

[12] s 51(vi) of the Constitution.

[13] White v Director of Military Prosecutions (2007) 231 CLR 570; Private R v Cowen (2020) 271 CLR 316.

[14] Lane v Morrison (2009) 239 CLR 230.

[15] s 160, DFDA.

[16] R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, at 267 – 268 (affirmed on later appeal to the Judicial Committee of the Privy Council (1957) 95 CLR 529; [1957] AC 288).

[17] (1963) 109 CLR 665.

[18] The Commonwealth v Welsh (1947) 74 CLR 245, at 257-258 per Latham CJ, McTiernan J agreeing; at 262 per Rich J, at 274 per Williams J; Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 105 per Brennan J.

[19] s 17, Defence Act 1903 (Cth).

[20] Marks v The Commonwealth (1964) 111 CLR 549, at 564 (Windeyer J) and Coutts v The Commonwealth (1984-1985) 157 CLR 91, at 120 (Dawson J).

[21] Welsh (1947) 74 CLR 245, at 268.

[22] Chief of the Defence Force v Gaynor (2017) 246 FCR 298.

[23] Australian Military Regulations 1927 (Cth) (repealed).

[24] [1982] 1 NZLR 742 at 745; see also s 13(1)(c), Legislation Act 2013 (Cth) as to the reading down of a legislative instrument such as a regulation so as not to exceed the power to make it.

[25] Private R v Cowen (2020) 271 CLR 316, at [56] per Kiefel CJ, Bell and Keane JJ.

[26] s 23, Appeals Act.

[27] Li v Chief of Army.

[28] s 146, DFDA.

[29] Lane v Morrison (2009) 239 CLR 230, at [84] to [86], referring with approval to observations made by Platt J of the Supreme Court of New York in Mills v Martin (1821) 19 Johnson’s Supreme Court Reports (NY) 7, at 30 in relation to the nature of a court martial.

[30] King v Chief of Navy [2013] ADFDAT 3.

[31] s 68(1)(f), DFDA.

[32] s 162(5), DFDA.

[33] Howieson v Chief of Army [2021] ADFDAT 1.

[34] Kearns v Chief of Army [2022] ADFDAT 3, at [121] to [131].

[35] Part IXA, DFDA.

[36] s 103, DFDA.

[37] s 87(6), DFDA.

[38] s 87(1A), DFDA.

[39] s 316 of the Crimes Act provides:

316 CONCEALING SERIOUS INDICTABLE OFFENCE

(1) An adult--

(a) who knows or believes that a serious indictable offence has been committed by another person, and

(b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority, is guilty of an offence.

Maximum penalty--Imprisonment for--

(a) 2 years--if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or

(b) 3 years--if the maximum penalty for the serious indictable offence is more than 10 years imprisonment but not more than 20 years imprisonment, or

(c) 5 years--if the maximum penalty for the serious indictable offence is more than 20 years imprisonment.

(1A) For the purposes of subsection (1), a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority if--

(a) the information relates to a sexual offence or a domestic violence offence against a person (the “alleged victim”), and

(b) the alleged victim was an adult at the time the information was obtained by the person, and

(c) the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police or another appropriate authority.

(1B) Subsection (1A) does not limit the grounds on which it may be established that a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority.

(2) A person who solicits, accepts or agrees to accept any benefit for the person or any other person in consideration for doing anything that would be an offence under subsection (1) is guilty of an offence: Maximum penalty--Imprisonment for--

(a) 5 years--if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or

(b) 6 years--if the maximum penalty for the serious indictable offence is more than 10 years imprisonment but not more than 20 years imprisonment, or

(c) 7 years--if the maximum penalty for the serious indictable offence is more than 20 years imprisonment.

(3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury.

(4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Director of Public Prosecutions if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.

(5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4).

(6) In this section--

“domestic violence offence” has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.

“serious indictable offence” does not include a child abuse offence (within the meaning of section 316A).

Note : Concealing a child abuse offence is an offence under section 316A. A section 316A offence can only be committed by an adult.

“sexual offence” means the following offences--

(a) an offence under a provision of Division 10 of Part 3 where the alleged victim is an adult,

(b) an offence under a previous enactment that is substantially similar to an offence referred to in paragraph (a).

[40] s 60(1) of the DFDA provides:

“Prejudicial conduct

(1) A defence member commits an offence if the member does an act that is likely to prejudice the discipline of, or bring discredit on, the Defence Force.

Maximum punishment: Imprisonment for 3 months.”

As to the elements of this service offence, see Komljenovic v Chief of Navy [2017] ADFDAT 4, at [49] to [51].

[41] s 111B, DFDA.

[42] s 53(4)(d), DFDA.

[43] BLF Case (1982) 152 CLR 25, at 53 – 54.

[44] BLF Case (1982) 152 CLR 25, at 54; Royal Commission Into Certain Crown Leaseholds [No.2] [1956] QD R 239.

[45] Baker v Legal Services Commissioner [2006] 2 Qd R 249, at [49] per McPherson JA, Jerrard JA and Douglas J agreeing.

[46] Randall v Chief of the Defence Force [2020] FCA 1327.

[47] The position is accurately stated in the Commonwealth Director of Public Prosecutions Prosecution Policy (CDPP Policy), p 4, paragraph 2: https://www.cdpp.gov.au/prosecution-policy Accessed 27 October 2022.

[48] These are detailed in the CDPP Policy, supra.

[49] Director of Military Prosecutions, Prosecution Policy, paragraphs 5 to 8: https://defence.gov.au/mjs/Organisations.asp#3 Accessed 27 October 2022.


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