Defence Force Discipline Act 1982

The Act primarily affects "defence members" — permanent or reserve ADF personnel on continuous full-time service, duty, or in uniform (s.3(1)). It extends to "defence civilians" accompanying ADF elements outside Australia or on operations, but only with their written consent (s.3(1)). Prisoners of war for whom Australia is responsible are treated as defence members (s.7(1)), subject to Geneva Conventions (s.7(3)).

Summary authorities (commanding officers or superiors per ss.105–107) and courts martial/Defence Force magistrates exercise jurisdiction over any person charged (ss.106–107, 115, 129), but with rank-based limits: e.g. a commanding officer can try members two ranks junior (s.107(2)); courts martial have no jurisdiction over custodial offences (s.115(1A)). The DMP (Part XIA) directs prosecutions (s.103), representing service interests.

Investigating officers (police members or appointed officers per s.101) must comply with cautioning, access to counsel, and recording rules (ss.101C–101H, 101JA), affecting all suspects. Detainees in detention centres (Part XA) are subject to search (s.178A), fingerprints/photographs (s.178B), and custodial offences (s.54A, punishable by segregated confinement up to 10 days per s.54A(4)).

Reviewing authorities (appointed per s.150, competent if not previously involved per s.150A) review all convictions (s.152), impacting convicted persons' rights to petition (s.153). The Judge Advocate General, Chief Judge Advocate, and Registrar provide overarching administration (Parts XI–XIA), affecting tribunal composition and records (s.196, s.188FA).

Civil courts retain jurisdiction over civilian offences (s.190(2)), but not pure service offences (s.190(1)), creating dual exposure for conduct that is both (e.g. via s.61). The Act binds the Crown (implicit via s.3A characterising service offences as Commonwealth offences) and extends to external Territories (s.8).

Practically, it governs every ADF member in daily operations, from guard duty (s.32) to cyber conduct (s.48A), with compliance obligations on commanders (e.g. reporting delays per s.95(4)–(8)) and rights for accused (e.g. election rights per ss.111B, 131).

Duties fall heavily on ADF personnel. Members must obey lawful commands (s.27, strict liability on superior status per s.27(2), defence of reasonable ignorance per s.27(3)) and comply with general orders (s.29, strict liability with knowledge defence per s.29(3)). On operations, utmost exertion is required (s.15F), with offences for imperilling success (s.15G) or communicating with the enemy (s.16). Prejudicial conduct (s.60) or failure to perform duty (s.35A) carries strict liability elements.

Investigating officers have duties under Part VI: cautioning in custody (s.101C(2), tape-recordable per s.101C(2B)–(2C)), providing access to friends/lawyers (s.101E, exceptions in s.101G), and recording interviews (s.101JA). Medical examinations require consent or approval (s.101Q), with refusal an offence (s.101QA, reasonable excuse defence including medical conditions per s.101QA(3)–(4)).

Commanding officers must review senior discipline officer punishments (s.9G), report monthly on infringements (s.9JA), and avoid delay post-arrest (s.95(2)–(9), with notifications to DMP). The DMP decides on charges (s.103), with undertakings possible to protect witnesses (s.188GD).

Rights for accused persons are explicit. They must be present at hearings (s.139(1), exception for disorder per s.139(2) or summary authority order per s.139(4)). Elections allow trial by court martial/Defence Force magistrate for non-prescribed offences (ss.111B–111C, 131–131AA), with legal advice if available (ss.111B(3), 131(4)). Cautioning is mandatory (ss.101C, 101S, 101T), with access to counsel (s.101E). Evidence rules apply (s.146), excluding illegal obtains unless interests of justice require (s.101ZB). Double jeopardy is protected (s.144), as is unsoundness of mind (s.145, with prescribed acquittal per s.3(1)).

Convicted persons have review rights (s.153 petition within 30 days or extension per s.153(1A)–(1B)), and non-parole periods can be fixed (s.72). For infringements, reasonable excuse defences exist (e.g. s.9FB(1)(c)), and punishments are moderated (s.9J).

The Act preserves individual rights (s.3(18)), adding to but not derogating from Commonwealth/State/Territory laws.

Penalties are scaled in s.68(1), from life imprisonment to reprimand, with custodial variants in s.68A(1). Courts martial/Defence Force magistrates may impose any (s.69A), but restricted ones are capped (s.69A(3)). Summary authorities have limited powers (ss.69B–69C), with "elective punishments" requiring election opportunity for Schedule 1A offences (notes to tables in ss.69B–69C; e.g. detention up to 42 days on active service per item 6 of s.69B table).

Sentencing principles (s.70) mandate regard to civilian principles, discipline needs, mitigating factors (rank, age, prior convictions per s.70(2)), and means for fines (s.70(3)). Punishments must not exceed maxima (s.69), with concurrency rules (s.74) and restrictions (e.g. no imprisonment without dismissal for members per s.71(1); no detention for under-18s per s.71(2)).

Enforcement is via warrants of commitment (s.170), with civil detention possible (s.94). Fines are recoverable by deduction or civil action (s.174), with certificates prima facie evidence (s.175). Suspensions/ remissions apply (ss.78–82), and breaches of good behaviour undertakings allow resentencing (s.76). For detainees, custodial offences (s.54A) add segregated confinement (up to 10 days per s.54A(4)), with searches (s.178A) and records (s.178B).

Reviewing authorities can quash, substitute, or adjust (ss.158–162, 168–169), ensuring proportionality. DMP undertakings (s.188GD) can immunise witnesses. The Act integrates with Crimes Act 1914 for non-parole (s.72) and Regulatory Powers Act for investigations (s.101ZAB).

Non-compliance with removal orders for cyber-bullying (s.48B) adds up to two years' imprisonment. Overall, enforcement emphasises swift military command while layering civilian oversight.

The Act is not standalone. Section 10 applies Chapter 2 of the Criminal Code to all service offences, importing general principles (e.g. recklessness per s.5.4, modified by s.11 for duty contexts). Section 61 incorporates Territory offences, with Jervis Bay laws applying and Criminal Code excluded for some (note 3 to s.3(1) definition). Ancillary Territory offences (attempt, conspiracy per Criminal Code (ACT) ss.44,47,48) are included (s.3(1)).

Interactions with Crimes Act 1914 are explicit: s.6 ancillaries (s.3(1)), non-parole via ss.19A–19AZD (modified by s.72(1A)–(3)), and spent convictions (implicit via s.190A–190B). The Regulatory Powers Act is adopted for investigation (Division 6A of Part VI, ss.101ZAA–101ZAE), with modifications for animals and warrants (s.101ZAC).

Geneva Conventions bind via s.7(3) for prisoners of war. Online Safety Act 2021 definitions apply to cyber-bullying (s.48A(2)). Defence Act 1903 is referenced for ranks, pay (ss.3(9)–(10), 58H determinations), and Director of Defence Counsel Services (s.3(1)).

Evidence Act (Jervis Bay) rules apply with modifications (s.146), and civil courts' jurisdiction is preserved except for pure service offences (s.190). Reviews interact with Defence Force Discipline Appeals Act 1955 (s.156, s.153(2)).

The infringement scheme (Part IA) bars civil/criminal liability if dealt with (s.9C(2)), but referral to civil processes occurs if no election (s.9EC). Prejudicial conduct (s.60) overlaps with civilian equivalents but is strictly military (strict liability per s.60(2)).

No derogation from other rights (s.3(18)), allowing concurrent operation. For overseas, local laws may apply but ADF discipline prevails (s.9).

The compilation (No. 37, incorporating Act No. 115 of 2024) reflects iterative updates. Key is the 2021 Discipline Reform amendments (reflected in current text), introducing/expanding Part IA's infringement scheme (ss.9A–9JB) to handle minor matters fairly and efficiently (object in s.9B), reducing tribunal burden. This responded to needs for swift, non-stigmatising discipline for low-level breaches like absence under three hours (s.9DB) or negligent weapon discharge (s.9DM), with jurisdiction limits (s.9F) and command review (s.9G).

Cyber-bullying offences (ss.48A–48B, Division 5B) were added to address modern risks in service environments, with removal orders (s.84A) and failure penalties (s.48B), grounded in Online Safety Act definitions (s.48A(2)).

DMP and Registrar roles (Parts XIA, XI) were formalised earlier (around 2005–2006 amendments) to centralise prosecution (s.103, functions in s.188GA) and administration, separating from command to enhance independence (e.g. DMP undertakings per s.188GD).

Investigative powers now incorporate Regulatory Powers Act (Division 6A, s.101ZAB), with modifications for ADF context (ss.101ZAC–101ZAE), streamlining searches/seizures while preserving limits (s.101R).

Unsoundness of mind provisions (ss.145, 194) and reviews (Part VIIIA) were refined for procedural fairness, with automatic reviews (s.152) and petitions (s.153 within 30 days per s.153(1A)).

These changes streamline processes, incorporate federal standards, and adapt to contemporary threats like cyber issues, all while grounding in military needs (e.g. active service definitions per s.3(1)).

The text does not detail specific court cases, but provisions address recurring issues. Unsoundness of mind (s.145) allows findings of unfitness or non-responsibility, leading to custody until Governor-General's pleasure (ss.145(2), 158(3)–(4), 164(3), 194). This echoes controversies over mental health in military justice, with prescribed acquittals (s.3(1)) and reviews (Division 4 of Part VIIIA).

Bias and eligibility are safeguarded: tribunals must be independent (disqualification in s.108A for summary authorities involved in investigation; objections per s.141 for members/judge advocates). Protection from suit (s.193) mirrors judicial immunity, addressing potential command influence claims.

Double jeopardy is prevented (s.144), with deemed acquittals on quashing (s.159, s.165). Elections for higher tribunals (ss.111B–131AA) mitigate summary authority bias perceptions, especially for Schedule 1A offences.

Infringement scheme controversies (e.g. admission effects per s.9EB, no further trial per s.9C(2)) are limited to scheme purposes. Investigative safeguards (cautions per ss.101C–101D, tape-recording per s.101JA, exclusion per s.101ZB) counter coercion claims.

Section 61's Territory offence incorporation has raised jurisdictional issues, but strict liability (s.61(5)) and Jervis Bay application (notes to s.3(1)) clarify. No explicit "controversies" are named, but provisions like reasonable excuse defences (e.g. s.15(2), s.60(3)–(4)) and proportionality (s.70) respond to fairness concerns.

Overall, the Act anticipates challenges via layered reviews (Part VIIIA), DMP independence (s.188GA), and evidence rules (s.146), ensuring military discipline withstands scrutiny.

Most practitioners miss that disciplinary infringements (Part IA) are not "service offences" (s.9D(4)), so they do not trigger Criminal Code ancillaries or s.61 extensions — yet election bars later trial (s.9C(2)), creating a one-way trap if overlooked. Command review (s.9G) can reduce but not increase punishment, and monthly reporting (s.9JA) generates records that may surface in security clearances despite s.9JB rules.

Section 11's duty-context modification for recklessness/negligence (referencing equivalent training per s.11(2)) is often misapplied as a full defence; it's only a factor (s.11(3B)), and tribunals must still apply Code ss.5.4–5.5.

For s.61 offences, the applicable law is Jervis Bay's (including unwritten law per s.3(1)), but Chapter 2 of the Code does not apply to determine liability (note 3 and s.61(6)) — a frequent pleading error.

Elections under ss.111B/131AA must be timely (24 hours or extension for exigencies per ss.111C(1), 131AA(1)), and linked charges follow unless DMP agrees otherwise (s.131AA(3)(b)). Withdrawing post-referral requires DMP action (s.131AA(7)), risking delay.

Unsoundness of mind findings (s.145(4)) lead to indefinite custody (s.194(1)), with Governor-General release only on medical certificates (s.194(7)) — a "gotcha" for those assuming automatic civilian-style review.

Tape-recording of cautions/confessions is mandatory if practicable (ss.101C(2B), 101JA), with prosecution bearing proof burden otherwise (s.101C(2C)); non-compliance risks exclusion (s.101ZB), but "interests of justice" override (s.101ZB(1)).

Schedule 6 alternatives allow conviction substitution (s.161), but only if facts prove the alternative beyond reasonable doubt — summary authorities often overlook this in rushed proceedings.

Finally, s.3(18) preserves concurrent rights, so civil claims (e.g. for assault under s.25) can parallel service action, surprising those assuming exclusivity.

Compliance starts with training on core offences (Part III) and orders (s.29). Commanders must appoint appropriate summary authorities (s.5), ensure cautions/investigations follow Part VI (e.g. s.101E access, s.101JA recording), and avoid bias (s.108A).

For minor matters, issue infringement notices promptly (s.9E(2)), specifying election periods and penalties (s.9E(3)). Discipline officers must be properly appointed with specified jurisdiction (s.9H), follow Chief of Defence Force procedures (s.9FA), and report monthly (s.9JA). Records must comply with s.9JB rules to avoid privacy breaches.

In trials, secure elections where required (ss.111B, 131), record pleas accurately (s.130(1)), and apply evidence rules (s.146). DMP referrals (s.103) should be timely, with undertakings documented (s.188GD).

Punishments must align with scales (ss.68–69C), consider principles (s.70), and obtain approvals (s.172). Reviews require reports (s.154), with petitions within time (s.153(1A)).

For detainees, searches (s.178A) and leaves (s.178C) need authorisation; regulations under s.178D govern centres.

Organisations should maintain DMP/Registrar contacts (Parts XIA, XI), train on Code application (s.10), and audit for s.95 delay reporting. Annual DMP reports (s.196B) and JAG reports (s.196A) aid oversight. In overseas contexts, confirm s.9 extraterritorial reach and local law interactions.

Document everything — from infringement elections (s.9EB) to review notifications (s.152(3)) — to withstand scrutiny under s.101ZB or appeals.