# **THE MILITARY JUSTICE SYSTEM IN AUSTRALIA**

#### [Wing Commander Frank B. Healy]{.smallcaps}[^1]

When the British Government established a penal colony in Australia in
1788, the sailors and soldiers who accompanied the transported prisoners
were governed by the English *Mutiny Act* and the *Articles of War* that
were in force at the time. Following the withdrawal of the English naval
and military forces in 1870, an Australian military legal system began
to evolve. Before federation on 1 January 1901, there were separate
State naval and military forces. These forces were governed by State
legislation that closely followed the English system. Following
federation, the Commonwealth naval and military forces were established.
Until 1985 the separate forces were governed by Commonwealth
legislation. That legislation incorporated the respective English
legislation for each of the forces. Although work had commenced on
developing an Australian military justice system before World War II, it
was not until 3 July 1985 that such a system came into force. This paper
describes the current Australian system.

## I. DEVELOPMENT OF AUSTRALIAN MILITARY LAW

Following the settlement of Australia in 1788, the provisions of the
*Mutiny Act* of England that was in force at the time governed the
British troops who were in the Colony. It was not until 1870 that the
English naval and military forces were withdrawn from Australia.[^2]
With the formation of the various Colonies of Australia, Colonial Navies
and Colonial Armies were raised, and these were governed by the
appropriate Colonial legislation.[^3] This legislation provided for
military offences such as desertion and mutiny.[^4]

With the federation of the various States into the Commonwealth of
Australia in 1901, a statute of the Parliament of Great Britain, namely
the *Commonwealth of Australia Constitution Act 1900* (UK),[^5] provided
Australia with a written Constitution. Section 68 of the Constitution
provides, "The Commander-in-Chief of the Naval and Military Forces of
the Commonwealth is vested in the Governor-General as the Queen's
representative." Thus the Governor-General personally has the ultimate
executive authority over such of the Australian Defense Forces as exists
from time to time.

The Constitution also specifies the powers of the Australian Parliament.
Placitum (vi) of section 51 of the Constitution grants Federal
Parliament exclusive powers, namely, the "\[p\]ower to make laws for the
peace, order and good government of the Commonwealth with respect to the
Naval and military defense of the Commonwealth and of the several
States, and the control of the forces to execute and maintain the laws
of the Commonwealth. Pursuant to this power, the Federal Parliament
enacted the *Defense Act* 1903 (Cth), the *Naval Defense Act* 1910
(Cth), and the *Air Force Act* 1923 (Cth). The *Defense Act* 1903 (Cth)
provided that the State Acts relating to defense forces ceased to
apply.[^6] It also authorized the Governor-General to make regulations
for securing the discipline and good government of the Defense
Force,[^7] and, pursuant to this power, the *Australian Military
Regulations* were made in 1904,[^8] the *Naval Regulations* in 1906,[^9]
and the *Air Force Regulations* in 1922.[^10] The *Air Force
Regulations* were made under the *Air Force Act* 1923 (Cth) in
1927,[^11] and the *Naval Forces Regulations* under the *Naval Defense*
*Act* 1910 (Cth) in 1935.[^12] The Regulations predominantly dealt with
the organization and administration of the respective services.

The *Defense Act* 1903 (Cth) governed the raising and maintenance of the
Australian Military Forces, and was the source of military law
applicable to those forces. However, with time, the separate branches of
the Australian Military Forces became subject to the jurisdiction of
separate legislation.[^13] However, all services eventually became
subject to the *Defense Force Discipline Act* 1982 (Cth). Even so, a
brief history of each service's past is still worth noting.

## A. Navy

Initially, the *Defense Act* 1903 (Cth) applied to the Navy[^14] and
made applicable the provisions of the *Naval Discipline Act* 1866
(UK).[^15] This situation remained unaltered following the passing of
the *Naval* *Defense Act* 1910 (Cth).[^16]

However, in 1964, the provisions of the *Naval Discipline Act* 1957
(UK)[^17] were made applicable to the Navy,[^18] and those provisions
continued to apply until repealed in 1985.[^19] Since 3 July 1985,
discipline in the Navy has been governed by the *Defense Force
Discipline Act* 1982 (Cth).

## B. Army

The *Defense Act* 1903 (Cth) applies to the Army.[^20] By it, the
provisions of the *Army Act* 1881 (UK)[^21] were made applicable to the
Army while its members were on active service.[^22] In 1917 the *Defense
Act* 1903 (Cth) was amended, and the law in relation to discipline that
applied to the Army depended on whether the Army was on war service or
not[^23] with the only significant difference between the legislation
that was applicable in time of peace and that which was applicable in
time of war was that the available punishments were greater in time of
war. At that time, the Army was governed by:

> 1\. The *Defense Act* 1903 (Cth);
>
> 2\. The regulations made pursuant to the *Defense Act* 1903 (Cth); and
>
> 3\. So much of the *Army Act* 1881 (UK) and Rules of Procedure, not
> being inconsistent with 1 and 2, as were applied by section 88 of the
> *Defense Act* 1903 (Cth).

The *Defense Act* 1903 (Cth) gave the Governor-General power to
constitute a Board of Administration for the Military Forces, which was
called the Military Board, and prescribed the powers and functions with
which the Board could be invested.[^24] By virtue of the powers given to
the Military Board by the *Australian Military Regulations*, the
Military Board regulated the administration of the Military Forces by
the Australian Military Orders, the Military Board Instructions, and
Army Routine Orders. The provisions of the *Army Act* 1881 (UK)[^25]
continued to apply to the Army until repealed in 1985.[^26] Since 3 July
1985, discipline in the Army has been governed by the *Defense Force
Discipline Act* 1982 (Cth).

## C. Air Force

Following the formation of the Australian Air Force on 31 March 1921, it
was made subject to the *Defense Act* 1903 (Cth).[^27] It was
specifically provided that the *Army Act* 1881 (UK)[^28] did not apply
to members of the Air Force.[^29]

However, in 1939, the provisions of the *Air Force (Constitution) Act*
1917 (UK),[^30] in force on 15 December 1939, were made applicable to
the Air Force,[^31] and provisions continued to apply until repealed in
1985.[^32] Since 3 July 1985, discipline in the Air Force has been
governed by the *Defense Force Discipline Act* 1982 (Cth).

Thus, while each of the three Services was initially subject to the
*Defense Act* 1903 (Cth), the Navy and the Air Force were subsequently
granted their own legislation. However, the administration of discipline
in all three Services was effectively governed by the respective English
legislation, by reference in the Australian law, until 1985. Since 1985
all three arms of the Australian Defense Force have come under the
provisions of the *Defense Force Discipline Act* 1982 (Cth).

**II. THE DEFENCE FORCE DISCIPLINE ACT 1982 (CTH)**

# The *Defense Force Discipline Act* 1982 (Cth) (the Act) set up a hierarchy of service tribunals and conferred upon them a comprehensive system of discipline law that reflected civilian criminal standards and processes.[^33] The service tribunals have the power to try members of the Australian Defence Force on charges of service offences against the Act. Civilians accompanying the Australian Defence Force outside Australia or on operations against the enemy are also subject to the Act in certain circumstances.[^34] Civilians are not otherwise liable to be tried by service tribunals, nor are any offences created by the Act triable by civil courts.

# The Act also provides for related matters such as investigation of offences,[^35] suspension from duty,[^36] powers of arrest,[^37] power to order restitution of stolen property [^38] or payment of reparation for damage or loss caused,[^39] conviction without punishment,[^40] approval of certain punishments by higher authority,[^41] suspension and remission of punishments,[^42] execution and enforcement of punishments and parole.[^43]

III\. AUSTRALIAN SERVICE TRIBUNALS

# Having described the general purport of the Act, it is appropriate to detail the tribunals and appointments that are empowered to deal with military offences. The Australian service tribunals that are available under Part VII of the Act, in a descending order in relation to the jurisdiction that is granted to them, are:

1\. General Court-Martial;

2\. Restricted Court-Martial;

3\. Defense Force Magistrate;

4\. Superior Summary Authority;

5\. Commanding Officer;

6\. Subordinate Summary Authority; and

7\. Discipline Officer.

Although a discipline officer does not constitute a service tribunal for
the purposes of the Act,[^44] the provisions relating to them will be
dealt with in this section for completeness. Each of these tribunals
shall be examined in turn, and the issues of how they are convened or
appointed, their composition, their jurisdiction, and the punishments
that they may impose shall be addressed. Subordinate Summary
Authorities, Commanding Officers, and Superior Summary Authorities, as a
group, are classed as Summary Authorities,[^45] but each will be dealt
with separately.

However, before examining these matters, it is important to note that
the Act speaks of "dealing with" and "trying" charges.[^46] These are
distinct and separate processes. In dealing with a charge, a tribunal
has to determine whether to try the charge, dismiss it, or direct that
it not be proceeded with, or to refer it to a more appropriate tribunal
for trial. In any event, a tribunal may not try a charge unless the Act
grants it jurisdiction to do so.

A. General Court Martial

A general court martial is not a standing tribunal, but is appointed, or
convened, by a convening authority on an *ad hoc* basis.[^47] Where a
charge is referred to a convening authority, they may direct that the
charge be not proceeded with; refer the charge to a superior summary
authority or to a commanding officer for trial (where the charge is
within their jurisdiction); refer the charge to a Defense Force
magistrate for trial; or convene either a general court martial or a
restricted court martial to try the charge.[^48]

A general court martial is composed of a president and not less than
four other members.[^49] In order to be eligible to sit on a general
court martial, members of the Australian Defense Force must meet a
number of specified requirements. First, they must be officers.[^50]
Secondly, they must have been officers for a continuous period of not
less than three years or for periods amounting in the aggregate to not
less than three years.[^51] And finally, no member may be of a rank that
is lower than that of the accused,[^52] and the President must hold a
rank of at least the naval rank of captain or the rank of colonel or
group captain.[^53]

A general court martial may try any charge against any person, except
for custodial offences and the offences specified in section 63 of the
Act, which offences include treason, murder, manslaughter, bigamy, and
certain sexual offences in respect of which proceedings under the Act
may not be instituted without first obtaining the consent of the
Director of Public Prosecutions.[^54] A general court martial may
impose, in decreasing order of severity:[^55]

> 1\. Imprisonment for life.
>
> 2\. Imprisonment for a specific period.
>
> 3\. Dismissal from the Defense Force.
>
> 4\. Detention for a period not exceeding two years.
>
> 5\. Reduction in rank.
>
> 6\. Forfeiture of service for the purpose of promotion.
>
> 7\. Forfeiture of seniority.
>
> 8\. A fine not exceeding the amount of the convicted person's pay for
> 28 days.
>
> 9\. Severe reprimand.
>
> 10\. Reprimand.

B. Restricted Court Martial

Like a general court martial, a restricted court martial is not a
standing tribunal, but is convened on an *ad hoc* basis to try charges.
Additionally, they also are appointed, or convened, by an officer
appointed in writing by a chief of staff to be a convening
authority.[^56]

A restricted court martial is composed of a president and not less than
two other members.[^57] The eligibility requirements to sit on a
restricted court martial are essentially the same as for a general court
martial. However, in this case the president must hold a rank of at
least commander, lieutenant colonel or wing commander.[^58] A restricted
court martial has the same jurisdiction as a general court martial, but
its powers of punishment are less severe.[^59] The punishments are:[^60]

> 1\. Imprisonment for a period not exceeding six months.
>
> 2\. Dismissal from the Defense Force.
>
> 3\. Detention for a period not exceeding six months.
>
> 4\. Reduction in rank.
>
> 5\. Forfeiture of service for the purpose of promotion.
>
> 6\. Forfeiture of seniority.
>
> 7\. A fine not exceeding the amount of the convicted person's pay for
> 28 days.
>
> 8\. Severe reprimand.
>
> 9\. Reprimand.

C. Defense Force Magistrate

Defense Force magistrates are appointed from the judge advocates' panel
by the Judge Advocate General. Upon the nomination of the Judge Advocate
General, officers may be appointed as members of the judge advocates'
panel by instrument in writing signed by a chief of staff.[^61]
Following appointment to the panel, officers are required to take an
oath or affirmation of office.[^62] Officers who are members of the
judge advocates' panel may in turn be appointed as Defense Force
magistrates by the Judge Advocate General by instrument in writing, and
following such appointment, they are again required to take an oath or
affirmation of office.[^63]

Defense Force magistrates sit alone when hearing charges under the Act
that are referred to them for trial by a convening authority.[^64] They
have the same jurisdiction and powers as a restricted court martial,
including the powers of the judge advocate of a restricted court
martial.[^65] Similarly, the punishments that may be imposed by Defense
Force magistrates are the same as for a restricted court martial.[^66]

D. Superior Summary Authority

Superior summary authorities are also appointed by instrument in
writing, but by a chief of staff.[^67] With the exception of prescribed
offences,[^68] superior summary authorities have jurisdiction to try a
charge against an officer who is two or more ranks junior to them, being
an officer of or below the rank of lieutenant commander, major or
squadron leader.[^69] They may also try a charge against a warrant
officer or against a person who is not a member of the Defense
Force.[^70] However, superior summary authorities may only try charges
that are within their jurisdiction and that have been referred to them
by a convening authority or by a commanding officer[^71]―they do not
have jurisdiction to try a charge at first instance. The punishments
that may be imposed by superior summary authorities, in decreasing order
of severity, are[^72]:

> 1\. A fine not exceeding the amount of the convicted person's pay for
> 14 days.
>
> 2\. Severe reprimand.
>
> 3\. Reprimand.

### E. Commanding Officer

Commanding officers derive disciplinary powers by virtue of their
military appointment as a commanding officer. They have jurisdiction to
deal with any charge against any person[^73] and may try a charge
against a member of the Defense Force who is two or more ranks junior to
them, being a member of or below the naval rank of lieutenant, the
military rank of captain or the rank of flight lieutenant, in respect of
a service offence that is not a prescribed offence.[^74] Additionally,
they may try a charge against a person who is not a member of the
Defense Force in respect of a service offence that is not a prescribed
offence.[^75] They are also required to try a charge that is within
their jurisdiction and that is referred to them for trial by a convening
authority or by a subordinate summary authority.[^76]

The punishments that may be imposed by commanding officers depend upon
the Service to which the convicted person belongs and their rank and
also, in respect of elective punishments,[^77] upon whether the
convicted person elected to be tried or punished by the commanding
officer.[^78] The range of available punishments, beginning with the
maximum is:[^79]

> 1\. Detention for a period not exceeding 42 days.
>
> 2\. Reduction in rank.
>
> 3\. Forfeiture of seniority.
>
> 4\. A fine not exceeding the amount of the convicted person's pay for
> 28 days.
>
> 5\. Severe reprimand.
>
> 6\. Restriction of privileges for a period not exceeding 14 days.
>
> 7\. Stoppage of leave for a period not exceeding 21 days.
>
> 8\. Extra duties for a period not exceeding 7 days.
>
> 9\. Extra drill for not more than two sessions of 30 minutes each per
> day for a period not exceeding 3 days.
>
> 10\. Reprimand.

F. Subordinate Summary Authority

A subordinate summary authority is appointed by instrument in writing by
a commanding officer.[^80] Their jurisdiction is limited to that granted
to them by their instrument of appointment. First, they may deal with a
charge against a member of the Defense Force who is not an officer in
respect of any service offence of a kind that is notified in their
instrument of appointment.[^81] Secondly, they may deal with a charge
against a prescribed officer, namely an officer who is included in a
prescribed class of officers and receiving instruction or training, in
respect of any service offence of a kind that is notified in their
instrument of appointment.[^82] Thirdly, they may try a charge against a
member of the Defense Force who is of, or below, the rank of leading
seaman or corporal in respect of a service offence other than a
prescribed offence,[^83] of a kind that is notified in their instrument
of appointment.[^84] Finally, they may try a charge against a prescribed
officer in respect of a service offence, again with the exception of a
prescribed offence, of a kind that is notified in their instrument of
appointment.[^85]

As with a commanding officer, the punishment that may be imposed by a
subordinate summary authority in a particular case is dependent upon the
Service to which the subordinate summary authority belongs, their rank,
their official appointment, the Service to which the accused belongs,
and the rank of the accused. Beginning with the most severe, the range
of available punishments are:[^86]

> 1\. A fine not exceeding the amount of the convicted person's pay for
> 7 days.
>
> 2\. Severe reprimand.
>
> 3\. Restriction of privileges for a period not exceeding 14 days.
>
> 4\. Stoppage of leave for a period not exceeding 21 days.
>
> 5\. Extra duties for a period not exceeding 7 days.
>
> 6\. Extra drill for not more than two sessions of 30 minutes each per
> day for a period not exceeding 3 days.
>
> 7\. Reprimand.

### G. Discipline Officer

The provisions relating to a discipline officer were inserted as Part
IXA of the Act in 1995.[^87] Although a discipline officer does not
constitute a tribunal under the provisions of Part VII of the Act and a
finding of guilt and the imposition of a penalty does not constitute a
conviction under the Act, reference to the discipline officer is
included for completeness.

A hearing before a discipline officer does not attract the formalities
that apply to hearings before service tribunals. The aim is to achieve
the dispensation of punishment for minor disciplinary infringements in
an efficient and timely manner.[^88] Accordingly, members must elect to
be dealt with by a discipline officer to be subject to their decisions.
A defense member who elects to be dealt with by a discipline officer
must admit the breach and may not be represented at the hearing, but may
call witnesses and present evidence in mitigation of punishment.[^89]

A discipline officer may deal with defense members in respect of
"disciplinary infringements" that are offences against several specified
sections of the Act and may impose one of a number of available minor
penalties in respect thereof.[^90]

A commanding officer may, in writing, appoint any officer or a warrant
officer as a discipline officer.[^91] A discipline officer has
jurisdiction to deal with a defense member who holds a rank below
non-commissioned rank in respect of a disciplinary infringement where
the member has not been charged with a service offence in respect of the
act or omission in question and where the member has elected to be dealt
with by a discipline officer.[^92] The punishments that may be imposed
by discipline officers, in a decreasing order of severity, are:[^93]

> 1\. A fine not exceeding the amount of a member's pay for one day.
>
> 2\. Restriction of privileges for a period not exceeding two days.
>
> 3\. Stoppage of leave for a period not exceeding three days.
>
> 4\. Extra duties for a period not exceeding three days.
>
> 5\. Extra drill for not more than two sessions of 30 minutes each per
> day for a period not exceeding three days.
>
> 6\. A reprimand.

**IV. STATUTORY APPOINTMENTS**

In addition to the appointment of judge advocates and Defense Force
magistrates already mentioned, the Act also provides for the appointment
of a Judge Advocate General and Deputy Judge Advocates General. Details
of these appointments will now be considered.

A. Judge Advocate General

The Judge Advocate General is appointed either on a full or part-time
basis by the Governor-General and has such functions, powers and duties
as are conferred by the Act or any other law.[^94] The Judge Advocate
General holds office for such period, not exceeding seven years, as is
specified in their instrument of appointment, provided that that period
does not extend beyond the day on which they attain the age of 65
years.[^95] In order to qualify for appointment as Judge Advocate
General, a person must be or have been a Justice or Judge of a federal
court or of a Supreme Court of a State or Territory.[^96] The
Governor-General may terminate the appointment of the Judge Advocate
General if their appointment as a Justice or Judge of a federal court or
of a Supreme Court of a State or Territory is terminated by reason of
misbehavior, physical or mental incapacity, or bankruptcy.[^97] A Judge
Advocate General who is a Justice or Judge of a federal court or of a
State Supreme Court or Territory ceases to hold office if they no longer
hold office as such a Justice or Judge.[^98]

B. Deputy Judge Advocates General

The Governor-General may also appoint one or more Deputy Judge Advocates
General, who also may hold their appointments either on either a full or
part-time basis.[^99] Their term of appointment[^100] and their
qualification for appointment are essentially the same as for the Judge
Advocate General, except that a person need not be a justice or judge―a
person who has been enrolled as a legal practitioner for less than five
years is eligible.[^101] Their appointment may be terminated or
terminates on the same grounds as for the Judge Advocate General, with
the additional ground that a Deputy Judge Advocate General who is not a
Justice or Judge of a federal court or of a Supreme Court of a State or
Territory ceases to hold office if they cease to be a legal
practitioner.[^102]

## C. Judge Advocate

In proceedings before a court martial, the judge advocate is required to
give any ruling, and exercise any discretion that, in accordance with
the law in force in the Jervis Bay Territory of Australia, would be
given or exercised by a judge in a trial by jury, and must sit without
the members of the court martial where that would be the practice in a
trial by jury.[^103] A ruling given by the judge advocate is binding on
the court martial.[^104] In addition to the requirements of the Act, the
Regulations, or the Rules, the functions of the judge advocate are:
[^105]

> 1\. To be present at all sittings of the court martial;
>
> 2\. To preside over all hearings conducted in the absence of the
> members of the court martial, and to ensure, at all such hearings,
> that the proceedings are conducted in accordance with the Act and the
> Rules and in a manner befitting a court of justice; and
>
> 3\. To ensure that an accused person who is not represented does not
> suffer any undue disadvantage as a consequence of that fact; and to
> ensure that a proper record of the proceedings is made and that the
> record of proceedings and the exhibits, if any, are properly
> safeguarded.

## D. Defense Force Magistrate

In addition to any functions conferred on them by the Act, the
Regulations, or any other rule, the functions of a magistrate at any
proceedings before them are to ensure that the proceedings are conducted
in accordance with the Act and the Rules and in a manner befitting a
court of justice; that an accused person who is not represented does
not, in consequence of that fact, suffer any undue disadvantage; and
that a proper record of the proceedings is made and that the record of
proceedings and the exhibits, if any, are properly safeguarded.[^106]

**V. IMPORTANT APPOINTMENTS**

## A. President

The president of a court martial has a duty to ensure that the
proceedings are conducted in accordance with the Act and the Rules and
in a manner befitting a court of justice; to speak on behalf of the
court martial in announcing a finding or sentence or any other decision
taken by the court martial; and to speak on behalf of the members of the
court martial in conferring with, or requesting advice from, the judge
advocate on any question of law or procedure.[^107] In proceedings
before a court martial, with the exception of matters that are
specifically reserved for determination by the judge advocate, the
president presides.[^108]

## B. Prosecutor

The prosecutor is required to provide the accused person with notice and
particulars of any evidence that the prosecution intends to adduce at
the trial that was not contained in the written statements furnished to
the accused person[^109] before they initially appeared before a summary
authority.[^110] Where the prosecutor decides not to call a prosecution
witness to give evidence as notified to the accused person, the
prosecutor must, if practicable to do so before the trial, inform the
accused person accordingly, and that they may call the witness as a
witness for the defense, or inform the accused person at the trial that
they do not intend to call the witness to give evidence but will tender
the witness for cross-examination by the accused person if they so
request.[^111] A court martial or a Defense Force magistrate may allow
the prosecutor to withdraw a charge before the accused person is
arraigned on it.[^112]

**VI. MILITARY JUSTICE PROCEDURES**

The procedures applicable to the hearing of charges are similar whether
the particular tribunal hearing the charges is a summary authority, a
court martial, or a Defense Force magistrate. The practice and procedure
applicable to the Australian military justice system, including the
review of proceedings and the right of appeal, is set out in
legislation. The principal legislation governing these issues is:

> 1\. The *Defense Force Discipline Act* 1982 (Cth).[^113]
>
> 2\. The *Defense Force Discipline Regulations* (Cth).[^114]
>
> 3\. The *Defense Force Discipline Rules* (Cth).[^115]
>
> 4\. The *Defense Force Discipline Appeals Act* 1955 (Cth).[^116]
>
> 5\. The *Federal Court of Australia Act* 1976 (Cth).[^117]

A. Rules of Evidence, Rules of Procedure and Regulations

*1. Rules of Evidence*

Subject to any regulations made under the Act, the rules of evidence in
force in the Jervis Bay Territory[^118] apply to proceedings before a
service tribunal as if the tribunal was a court exercising jurisdiction
in or in relation to that Territory, and the proceedings were criminal
proceedings.[^119] A document that is certified by a commanding officer
as being a copy of a general order is evidence of that order unless the
contrary is proved.[^120] In addition, a service tribunal must take
judicial notice of all matters within the general service knowledge of
the tribunal or of its members.[^121]

*2. Rules of Procedure*

The Judge Advocate General is authorized to make rules of procedure,
which are not inconsistent with the Act, providing for the practice and
procedure to be followed by service tribunals.[^122] The rules so made
are subject to parliamentary scrutiny.[^123] They may cover such matters
as:[^124]

> 1\. The attendance of witnesses;
>
> 2\. The production of documents;
>
> 3\. The administration of oaths and affirmations;
>
> 4\. The forms to be used in proceedings;
>
> 5\. The service of process;
>
> 6\. Charge sheets;
>
> 7\. The manner of taking the votes of the members of a court martial;
>
> 8\. The manner and form of charges; and
>
> 9\. The recording of proceedings of service tribunals.

*3. Regulations*

The Governor-General is authorized to make regulations, not inconsistent
with the Act, prescribing matters required or permitted by the Act to be
prescribed, or that are necessary or convenient to be prescribed for
carrying out or giving effect to the Act.[^125]

## B. Conduct of Trial

*1. Courts Martial and Trials by Defense Force Magistrates*

The hearing of proceedings before a court martial or a Defense Force
magistrate is normally held in public.[^126] If, however, the president
of the court martial or the Defense Force magistrate considers it
necessary in the interests of the security or defense of Australia, the
proper administration of justice, or public morals to order that some or
all of the members of the public be excluded during the whole or a
specified part of the proceedings, they may do so.[^127]

*2. Method of Taking Evidence*

A service tribunal is empowered to take evidence on oath or affirmation,
and the proceedings must generally be held in the presence of the
accused.[^128] Witnesses appearing before service tribunals may be
examined, cross-examined, and re-examined.[^129]

*3. Record of Proceedings*

The record of proceedings of a hearing before a summary authority must
contain the substance of the evidence of the witnesses and such
additional matters, if any, as are necessary to enable the merits of the
case to be judged.[^130] Where the proceedings of a hearing before a
summary authority are recorded by means of shorthand or sound recording
apparatus, the recorder must prepare, or cause to be prepared, a
transcript in writing, which must be authenticated by the person who
made the transcript, and be certified as true and correct by the summary
authority.[^131]

The proceedings before a court martial or a Defense Force magistrate
must, if practicable, be recorded *verbatim*.[^132] Where the
proceedings are not recorded by means of shorthand or sound recording
apparatus, they must be recorded in sufficient detail to enable the
course of the proceedings to be followed, and the merits of the case to
be judged, from the record.[^133] Where the proceedings are recorded by
means of shorthand or sound recording apparatus, the recorder must
prepare, or cause to be prepared, a transcript in writing that must be
authenticated by the person who made the transcript.[^134] The written
record of the proceedings must be certified as true and correct, in
writing, by the recorder and the judge advocate or the Defense Force
magistrate as soon as practicable after the conclusion of the
trial.[^135]

*4. Principles of Law Applicable to Trials*

Before 15 December 2001, the principles of the common law with respect
to criminal liability applied in relation to service offences.[^136] The
prosecution bore the onus of proving the case beyond reasonable doubt,
while the onus of proving an appropriate defense was on the person
charged with the standard of proof being on the balance of
probabilities.[^137] As from 15 December 2001, the principles of
criminal responsibility are as laid down in Chapter 2 of the Criminal
Code.[^138] Service tribunals may impose punishments ranging in
increasing order from a reprimand to imprisonment for life.[^139] The
particular types of punishment that may be imposed vary with the nature
of the tribunal. They are required to have regard to the sentencing
principles as applied by the civil courts, as well as the need to
maintain discipline in the Australian Defense Force.[^140]

*5. Amendment of Charge Sheets*

A summary authority may, before dealing with or trying a charge, or at
any stage of dealing with or trying a charge, amend the charge as they
think necessary, unless the amendment cannot be made without injustice
to the accused person.[^141] Similar action may also be taken by a
convening authority, the judge advocate of a court martial, or a Defense
Force magistrate.[^142] A mistake in the charge sheet in the name or
description of the accused person or a mistake that is attributable to
clerical error or omission may be amended at any time during a hearing
of proceedings.[^143]

*6. Swearing of Members*

After all objections by the accused to members of the court have been
dealt with and before the arraignment of the accused begins, the judge
advocate administers an oath or affirmation to the president and each
other member of the court in the presence of the accused.[^144] The oath
or affirmation is that the person will duly administer justice according
to law without fear or favor, affection or ill-will, that the person
will well and truly try the accused person or persons before the court
martial according to the evidence, and that the person will not disclose
the vote or opinion of any member of the court martial unless required
to do so in due course of law.[^145]

*7. Opening Address by Prosecution*

Before the first prosecution witness is called to give evidence at
trial, the prosecutor may, and at a trial by a court martial or a
Defense Force magistrate must, make an opening address to the tribunal,
stating briefly:

> 1\. The elements of the offence charged that have to be proved before
> the accused person can be convicted;
>
> 2\. The alleged facts upon which the prosecutor will rely to support
> the charge; and
>
> 3\. The nature of the evidence that the prosecutor proposes to adduce
> to prove the alleged facts.[^146]

*8. Tribunal May Direct Substitution of Plea of Not Guilty*

Where at any time during a trial it appears to a service tribunal, or in
the case of a court martial, to the judge advocate, that an accused
person who has pleaded guilty does not understand the effect of the
plea, the tribunal must substitute a plea of not guilty and proceed
accordingly.[^147]

*9. Recalling of Witnesses and Calling of Further Witnesses*

The prosecutor and the accused person may, at any time before the judge
advocate begins to sum up at a trial by court martial, or before the
service tribunal makes a finding on the charge in any other case, recall
a witness by leave of the service tribunal.[^148] After the witnesses
for the defense have given their evidence, the prosecutor may, by leave
of the service tribunal, call a witness to give evidence on any matter
raised by the accused person in their defense in respect of which
evidence could not properly have been adduced, or which could not
reasonably have been foreseen, by the prosecution before the accused
person presented their defense.[^149] A service tribunal may, at any
time before the judge advocate begins to sum up at a trial by court
martial, or before the service tribunal makes a finding on the charge in
any other case, call a witness or recall a witness if, in the opinion of
the service tribunal or, in the case of a court martial, the judge
advocate, it is in the interests of justice to do so.[^150] When a
witness is so called or recalled, the accused person and the prosecutor
may put such questions to the witness as seem proper to the service
tribunal or, in the case of a court martial, the judge advocate.[^151]

*10. Right to Argue and Adduce Evidence*

The accused person and the prosecutor may properly argue, and adduce
evidence relevant to, any question presented to the service tribunal for
decision.[^152]

*11. Submission of No Case to Answer*

At the close of the prosecution case, the accused person may make a
submission to the tribunal in respect of a charge that the evidence
adduced is insufficient to support the charge.[^153]

*12. Opening Address by Defense*

Where the accused person intends to call a witness to give evidence as
to the facts of the case, they may, before calling the first such
witness, make an opening address to the tribunal stating the nature and
general effect of the evidence that they propose to adduce in their
defense.[^154]

*13. Closing Addresses*

After all of the evidence has been given, the accused and the prosecutor
may each make a closing address to the tribunal.[^155] The closing
address, if any, of the accused is made after that of the
prosecutor.[^156] Where two or more persons are charged in the same
charge sheet, their closing addresses are made in the order in which
their names are listed on the charge sheet, but when they are
represented by the same person, that person may only make one closing
address. [^157]

*14. Judge Advocate to Sum Up*

After the closing addresses, if any, at a trial by court martial, the
judge advocate is required to sum up the evidence and direct the court
on the law relating to the case.[^158]

*15. Evidence as to Material Facts after Conviction on Plea of Guilty*

Where, on the trial of a charge, the accused is convicted after pleading
guilty, the prosecutor must inform the tribunal of the material facts
that show the nature and gravity of the offence.[^159] The convicted
person may dispute any such facts, and they and the prosecutor may
adduce evidence in relation to any fact so disputed. [^160]

*16. Decisions of Courts Martial*

In proceedings before a court martial, with the exception of matters
that are specifically reserved for determination by the judge advocate,
the president presides and every question is determined by a majority
vote of the members, and in the event of an equality of votes, the
president has a casting vote.[^161] In the case where the issue being
determined is whether the accused person is guilty or not of a service
offence, and the votes are equal, the court martial must find the
accused person not guilty.[^162] Where a court martial is determining
whether an accused person is guilty or not guilty of a service offence
or determining the appropriate punishment to impose on a convicted
person, the members must sit without any other person present.[^163] On
any question to be determined by the court martial, the members must
vote orally, in order of seniority commencing with the junior in
rank.[^164]

*17. Plea in Mitigation*

After a person has been convicted by a service tribunal, the prosecutor
adduces evidence of the relevant particulars of their service in the
Defense Force if they are a defense member or were a defense member at
the time of the commission of the offence.[^165] They will also produce
particulars of any previous convictions for service offences, civil
court offences, and overseas offences, and such other matters relevant
to the determination of sentence.[^166]

The convicted person may then give evidence, call witnesses to give
evidence as to their character and in mitigation of punishment, and
address the service tribunal in mitigation of punishment.[^167] The
witnesses, including the convicted person if they give evidence, may be
examined, cross-examined, and re-examined as with any witness during the
trial.[^168]

## C. RIGHTS OF AN ACCUSED

*1. Action Following Arrest*

A person arrested under the provisions of the Act must be delivered, as
soon as practicable, into the custody of a commanding officer, who must
either charge them with a service offence or release them from custody
within 24 hours after they have been delivered into their custody.
[^169] Where a person is so charged, proceedings must be commenced as
soon as possible, and if not commenced within a period of 48 hours, the
commanding officer must make a written report to a convening authority
giving reasons for the delay.[^170]

If a person remains in the custody of a commanding officer for a period
of eight days or more without the charges having been dealt with, the
commanding officer must report the reasons for the delay in writing to a
convening authority every eight days.[^171] Where a person remains in
custody for 30 days without the charge having been dealt with, the
convening officer must notify the reasons for the delay to a chief of
staff, who must order the release of the person from custody, unless
satisfied that it is proper that they should continue in custody.[^172]

*2. Limitation Period for Bringing Charges*

Generally speaking, a person must be charged with a service offence
within five years of the commission of the offence.[^173] Where a person
has ceased to be a member of the Defense Force they must be charged
within six months of ceasing to be a member, and then only where the
maximum punishment for the offence is at least imprisonment for a period
of two years.[^174] However, a person may be charged with an offence of
aiding the enemy, communicating with the enemy, mutiny, or desertion, or
with being an accessory to, or with attempting, or inciting any of these
offences at any time.[^175]

*3. Investigation of Service Offences*

The Act authorizes a person who is investigating a service offence to
ask questions of any person whom they believe may be able to furnish
information that may assist with the investigation.[^176] There is
however, no obligation on the person to answer any questions.[^177]
Where a person is in custody, an investigating officer may not ask them
any question or to do anything in connection with the investigation of a
service offence unless the investigating officer has:

> 1\. Told them their name and rank, and
>
> 2\. Has cautioned them that they do not have to say or do anything,
> but anything that they do say or do may be used in evidence.[^178]

A person must likewise be cautioned before being asked any question or
asked to do anything after an investigating officer has either:

> 1\. Decided to charge them with a service offence or
>
> 2\. Decided to seek the issue of a summons against them for a service
> offence, or to recommend that they be so charged or that a summons be
> sought.[^179]

A person who is in custody in respect of a service offence is also
entitled to communicate with a friend or a relative, and also with a
legal practitioner of their choice.[^180] They must be treated with
humanity and with respect for human dignity while in such custody.[^181]

Further protections are added by taping interviews. Where a person, who
is being interviewed as a suspect by a police member, makes a confession
or an admission, the confession or admission must be tape recorded where
possible, and the suspect must be provided with a copy of the video
recording or the sound recording, as applicable, free of charge within
seven days of the recording being made.[^182]

The Act also permits an investigating officer, who is an officer or a
warrant officer, to take fingerprints or photographs of a person who is
in lawful custody in respect of a service offence, where they deem it
necessary for the purpose of establishing the identity of the
person.[^183] Additionally it permits the identification of a suspect
being held in custody by means of photographs where the suspect has
refused to take part in an identification parade, or where the holding
of an identification parade would be unfair to the suspect or
impracticable given all the circumstances.[^184] It also authorizes the
holding of identification parades, the search of arrested persons, and
their medical examination.[^185]

Search warrants may be issued authorizing named investigating officers
to search:

> 1\. Defense members or defense civilians;
>
> 2\. The clothing being worn by them, and the property under their
> immediate control; and
>
> 3\. To seize any thing of the kind specified in the information
> seeking the warrant found in the course of the search, which they
> believe, on reasonable grounds, to be connected with the service
> offence being investigated.[^186]

## *4. Accused Person Must be Given Copies of Statements by Witnesses*

A person who has been charged with a service offence must be given a
copy of each statement in writing obtained by the prosecution from
material witnesses to the alleged offence before they appear before a
summary authority for a purpose relating to the charge.[^187]

When a convening authority convenes a court martial for the trial of a
charge, the authority must send a copy of the convening order to the
president and to each member or reserve member of the court.[^188] The
judge advocate must be sent the convening order, the charge sheet, the
record of evidence taken at proceedings in relation to the charge before
a commanding officer, a superior summary authority, or an examining
officer, and any other statement taken from a witness to be called for
the prosecution.[^189] The accused person must be sent copies of:

> 1\. The charge sheet;
>
> 2\. The record of evidence taken at proceedings in relation to the
> charge before a commanding officer, a superior summary authority, or
> an examining officer;
>
> 3\. Any other statement taken from a witness to be called for the
> prosecution;
>
> 4\. A list of the names of witnesses to be called by the prosecution;
> and
>
> 5\. A list of exhibits to be given in evidence for the
> prosecution.[^190]

When a convening authority refers a matter to a Defense Force
magistrate, the authority must, in the order referring the matter,
specify the Defense Force magistrate to whom the matter is referred, and
fix the time and place for the hearing of the matter.[^191] The Defense
Force magistrate must be sent the order referring the matter and the
charge sheet.[^192]

*5. Representation of Accused Persons*

A person may not represent a party before a court martial or a Defense
Force magistrate unless they are either a member of the Defense Force or
a legal practitioner.[^193] Additionally, a convening authority must,
subject to the exigencies of the service, afford an accused person
awaiting trial by court martial or Defense Force magistrate the
opportunity of being represented at the trial by a legal officer.[^194]

At a hearing by a summary authority the accused person is entitled to be
represented.[^195] At the hearing of a proceeding before a summary
authority by way of trial, an accused person may also request the
services of a specified member of the Defense Force to defend
them.[^196] Unless the services of the specified member are not
reasonably available, or the hearing is before a subordinate summary
authority and the person requested is a legal officer, they must be
permitted to defend the accused person.[^197] Where the services of the
specified member are not reasonably available, the summary authority
must, with the consent of the accused person, direct a defense member to
defend them.[^198] If the accused person requests representation by a
legal officer at a hearing before a commanding officer or a superior
summary authority, the legal officer whose services are requested must
be permitted to defend the accused if leave is given by the commanding
officer or superior summary authority and the services of the legal
officer are reasonably available.[^199]

While an accused person may request the services of a specified member
of the Defense Force to defend them at a hearing before a summary
authority,[^200] a member who elects to be dealt with by a discipline
officer may not be represented.[^201]

## 

## 

## *6. Accused to be Present*

Unless, by reason of the disorderly behavior of the accused person, it
is impossible to continue the hearing in their presence, a hearing
before a service tribunal must be held in the presence of the accused
person.[^202] Before the members of a court martial are sworn, their
names are read to the accused person who must then be asked whether they
object to being tried by any of them.[^203] The accused person or the
prosecutor may, at any time, apply on any reasonable grounds for an
adjournment of the proceedings.[^204]

*7. Record of Evidence*

A person may be appointed to act as a recorder or as an interpreter at
proceedings before a service tribunal.[^205] An accused person may enter
an objection to a recorder or interpreter on the ground of partiality or
incompetence or both.[^206] Where the service tribunal or, in the case
of a court martial, the judge advocate, is satisfied that the accused
person has substantiated such an objection, the service tribunal or the
judge advocate must allow the objection.[^207] Before a person begins to
act as a recorder or an interpreter, the service tribunal or the judge
advocate administers an oath or affirmation to them.[^208] In the case
of a recorder, the oath or affirmation is that they will, to the best of
their ability, truly record and transcribe the evidence and will deliver
a true transcript of it to the service tribunal.[^209] In the case of an
interpreter, the oath or affirmation is that they will, to the best of
their ability, truly interpret and translate as required.[^210]

*8. Applications and Objections by Accused Persons*

Before an accused person is required to plead at a trial before a
service tribunal, they may make an application based on a number of
specified grounds, including:

> 1\. Obtaining an adjournment in order to obtain further time in which
> to properly prepare their defense;
>
> 2\. To choose a representative;
>
> 3\. To secure the attendance of witnesses; or
>
> 4\. To make a request for separate trial.[^211]

They may also object to the charge on a number of specified grounds,
including the grounds that the charge does not disclose a service
offence or is otherwise wrong in law, or that the service tribunal does
not have jurisdiction.[^212] The accused person, or the prosecutor, may,
at any time, apply to a service tribunal, on any reasonable grounds, for
an adjournment of the proceedings before the tribunal.[^213]

*9. Pleading to Charges and Arraignment*

Before hearing any evidence in support of a charge, the tribunal must
call upon the accused to plead to the charge, and if they plead guilty
and the tribunal is satisfied that they understand the effect of that
plea, the tribunal must convict the accused person.[^214] If they plead
not guilty or if the tribunal is not satisfied that they, in pleading
guilty, understand the effect of that plea, the tribunal must record a
plea of not guilty and proceed to hear the evidence on the charge.[^215]
If, after hearing the evidence on the charge adduced by the prosecution,
the tribunal is of the opinion that that evidence is insufficient to
support the charge, it must dismiss the charge.[^216] On the other hand,
if after hearing the evidence on the charge adduced by the prosecution,
the tribunal is of the opinion that that evidence is sufficient to
support the charge, it must proceed with the trial.[^217]

After having proceeded with the trial, if the tribunal finds that the
charge is not proved, it must dismiss the charge [^218] or acquit the
person [^219] as appropriate. If it finds the charge proved, it must
convict the accused person,[^220] and after hearing evidence relevant to
the determination of what action should be taken,[^221] proceed to
impose a punishment upon them.[^222]

Where there is more than one charge against an accused person before a
service tribunal, the person is required to plead separately to each
charge.[^223] Where there is more than one charge against an accused
person before a court martial or a Defense Force magistrate in more than
one charge sheet, the service tribunal must arraign and try the person
on the charge or charges in one charge sheet before they are arraigned
on a charge in another charge sheet.[^224] If a person is convicted by a
court martial or a Defense Force magistrate of a charge which is one of
two or more charges stated in the charge sheet in the alternative, they
must not be convicted by the service tribunal of any charge which is
alternative to the charge of which they have been convicted and which is
placed after it on the charge sheet.[^225]

## VII. REVIEW OF PROCEEDINGS

Part IX of the Act provides that a chief of staff may, by instrument in
writing, appoint officers as reviewing authorities to review proceedings
in accordance with the Act and Regulations.[^226]

## A. Discipline Officers

As a discipline officer is not taken to be a service tribunal for the
purposes of the Act,[^227] proceedings before a discipline officer are
not subject to review pursuant to the provisions of Part IX of the Act.

## B. Subordinate Summary Authorities

Proceedings before a subordinate summary authority must be reviewed by
the authority's commanding office, and, for this purpose, the commanding
officer is deemed to be a reviewing authority.[^228] The commanding
officer may, but is not required to, obtain a report from a legal
officer before commencing the review, but must forward the record of the
proceedings and a report of the results of their review to a legal
officer after completing the review of the proceedings.[^229] If the
legal officer is not satisfied with the review by the commanding
officer, they may in turn forward the record and report to a reviewing
authority.[^230]

C. Commanding Officers, Superior Summary Authorities, Defense Force
magistrates, Restricted Courts Martial, and General Courts Martial

All service tribunals, other than subordinate summary authorities, must
forward the record of proceedings to a reviewing authority for automatic
review upon the conviction of a person for a service offence, whereupon
the reviewing authority must promptly review the proceedings.[^231]
However, before reviewing the proceedings, the reviewing authority, in
the case of a conviction by court martial or Defense Force magistrate,
must first obtain a report from a legal officer appointed by instrument
in writing for the purpose of reviewing charges by a chief of staff on
the recommendation of the Judge Advocate General.[^232] In the case of a
conviction by a commanding officer or a superior summary authority, a
report must be obtained from a legal officer.[^233]

Although reviewing authorities are bound by any opinion on a question of
law set out in a legal officer's report, they may refer the report to
the Judge Advocate General, or if the Judge Advocate General so directs,
to a Deputy Judge Advocate General, for further opinion.[^234] If the
Judge Advocate General or the Deputy Judge Advocate General dissents
from the opinion on the question of law given in the report of the legal
officer, they must furnish to the reviewing authority a written report
stating their opinion on the question of law. That opinion is binding on
the reviewing authority.[^235]

## D. Review on Petition to a Reviewing Authority

Where a person has been convicted of a service offence by a service
tribunal, they may, within 90 days of the conviction, or within such
further period as a reviewing authority allows, lodge with the reviewing
authority a petition for a review of the proceedings concerned.[^236]
Likewise, if a person appeals to the Defense Force Discipline Appeal
Tribunal and the appeal is dismissed, they may lodge a petition for a
review of the proceedings of the service tribunal which was the subject
of that appeal, within 60 days of the dismissal or such further period
as a reviewing authority allows.[^237] Upon receipt of a petition, a
reviewing authority must as soon as possible, and in any event within 30
days of its receipt, review the proceedings and notify the petitioner of
the result of the review.[^238] Once again, the reviewing authority must
obtain a report on the proceedings from a legal officer before
commencing the review.[^239]

## E. Further Review by a Chief of Staff

A review by a reviewing authority does not prevent a further review of
the proceedings concerned by a chief of staff if it appears to the chief
of staff that there are sufficient grounds for a further review.[^240]
For the purpose of conducting such further review the chief of staff is
deemed to be a reviewing authority.[^241] However, before commencing the
review, the chief of staff must first obtain a report on the proceedings
from the Judge Advocate General or, if the Judge Advocate General so
directs, from a Deputy Judge Advocate General.[^242] The chief of staff
is bound by any opinion on a question of law set out in the
report.[^243]

## F. Effect on Reviews of Appeals to the Defense Force Discipline Appeal Tribunal

Where a convicted person lodges an appeal, or an application for leave
to appeal, to the Defense Force Discipline Appeal Tribunal, a reviewing
authority must not commence or proceed with a review.[^244] But where
the Defense Force Discipline Appeal Tribunal dismisses the appeal, or
the application for leave to appeal, the reviewing authority may proceed
with a review.[^245]

## G. Action on Review of Proceedings that have resulted in a Conviction

Where it appears to a reviewing authority that a conviction is:

> 1\. Unreasonable; or
>
> 2\. Cannot be supported, having regard to the evidence; or
>
> 3\. That, as a result of a wrong decision on a question of law, or of
> mixed law and fact, the conviction was wrong in law and that a
> substantial miscarriage of justice has occurred; or
>
> 4\. That there was a material irregularity in the course of the
> proceedings and that a substantial miscarriage of justice has
> occurred; or
>
> 5\. That, in all the circumstances of the case, the conviction is
> unsafe or unsatisfactory;

the reviewing authority must quash the conviction.[^246] Where a
reviewing authority quashes a conviction and does not order a new trial,
the person is deemed to have been acquitted of the offence.[^247] Where
a reviewing authority quashes a conviction that was recorded within the
preceding six months and considers that, in the interests of justice,
the person should be tried again for that service offence, they may
order a new trial of the person for that offence.[^248] The order for
the new trial lapses unless the new trial commences within a period of
six months commencing on the day on which the order is made.[^249]

Alternatively, where a reviewing authority quashes a conviction but
considers that the tribunal could have found the person guilty of an
alternative offence as prescribed by the Act, or of an offence that was
charged in the alternative and in respect of which the tribunal did not
record a finding, and that the tribunal, by reason of its finding in
respect of the original offence, must have been satisfied beyond
reasonable doubt of facts sufficient to prove the other offence, the
authority may substitute a conviction of the other offence.[^250]
Provided that a punishment was imposed for the original offence, the
reviewing authority may impose a punishment that would have been
available to the tribunal in respect of such conviction that is not more
severe than the original punishment.[^251]

## H. Action on Review of Punishment Imposed by a Service Tribunal

If it appears to a reviewing authority that the punishment imposed by a
tribunal is wrong in law or is excessive, they must quash the
punishment.[^252] And where it appears to a reviewing authority that a
summary authority has imposed an elective punishment without having
given the accused the right to elect trial by court martial or Defense
Force magistrate, they must quash the punishment.[^253] They may then
award such a punishment as was available to the tribunal, so long as it
is not more severe than that initially awarded.[^254]

## I. Punishments Subject to Approval by a Reviewing Authority

A number of specified punishments do not take effect unless approved by
a reviewing authority,[^255] who must also determine when the punishment
is to take effect.[^256] If the reviewing authority does not approve the
punishment, they must quash it, but having done so, they may then impose
such a punishment as the tribunal might have imposed, so long as it is
not more severe than the punishment originally imposed.[^257] With these
exceptions, a punishment imposed by a service tribunal, a reviewing
authority, or the Defense Force Discipline Appeal Tribunal, takes effect
forthwith, and a punishment for a specified period commences on the day
on which it is imposed.[^258] However, a summary authority who imposes a
punishment for a specific period may suspend the commencement date for
the punishment by up to 14 days.[^259] Punishments may be either
concurrent or cumulative.[^260] Where a convicted person petitions a
reviewing authority with respect to either conviction or punishment, or
notifies a reviewing authority that they have appealed to the Defense
Force Discipline Appeal Tribunal against the conviction, the reviewing
authority may order the stay of execution of punishment pending the
determination of the appeal or petition.[^261]

**VIII. APPEAL AGAINST CONVICTION**

A right of appeal against conviction by a court martial or a Defense
Force magistrate lies initially to the Defense Force Discipline Appeal
Tribunal, and from there, in certain circumstances, to the Federal Court
of Australia, and finally to the High Court of Australia. The role of
each of these tribunals in the administration of service discipline
shall now be examined.

## 

## A. The Defense Force Discipline Appeal Tribunal

*1. Composition*

The Defense Force Discipline Appeal Tribunal was created by the *Defense
Force Discipline Appeals Act* 1955, and consists of a President, a
Deputy President, and such other persons as are appointed by the
Governor-General by commission to be members of the Tribunal.[^262] In
order to qualify for appointment as President or Deputy President, a
person must be a Justice or Judge of a federal court or of the Supreme
Court of a State or Territory; and to qualify for appointment as a
member, a person must be a Justice or Judge of a federal court or of the
Supreme Court of a State or Territory or a Judge of a District Court or
County Court of a State. The President, the Deputy President, and the
members all cease to hold office if they no longer hold such qualifying
appointments.[^263]

*2. Procedure*

Except when the Tribunal is dealing with matters of procedure or
deliberating, or when the interests of security, the proper
administration of justice, or public morality demands otherwise, the
proceedings of the Tribunal are conducted in public.[^264] The Tribunal
is normally comprised of three members, at least one of whom must be the
President, the Deputy President or a member who is qualified for
appointment as President.[^265] However, the powers of the Tribunal may
be exercised by a single member with respect to certain specified
matters, such as the granting of leave to appeal to the Tribunal against
a conviction.[^266]

*3. Right to Appeal*

While a convicted person may appeal to the Tribunal against their
conviction, an appeal on a ground that is not a question of law may not
be brought except by leave of the Tribunal.[^267] An appeal or an
application for leave to appeal must, without leave of the Tribunal, be
brought within 30 days of the person's receiving notice of the result of
the review of the proceedings[^268] or within 60 days of the conviction,
whichever is the earlier.[^269]

*4. Determination of Appeals*

Where it appears to the Tribunal that the conviction is unreasonable or
cannot be supported, having regard to the evidence; or that, as a result
of a wrong decision on a question of law, or of mixed law and fact, the
conviction or the prescribed acquittal was wrong in law and that a
substantial miscarriage of justice has occurred; or that there was a
material irregularity in the course of the proceedings before the court
martial or the Defense Force magistrate and that a substantial
miscarriage of justice has occurred; or that, in all the circumstances
of the case, the conviction is unsafe or unsatisfactory; it must allow
the appeal and quash the conviction.[^270]

Furthermore, where it appears to the Tribunal that there is evidence
that was not reasonably available during the earlier proceedings, which
evidence is likely to be credible, and which would have been admissible
in the earlier proceedings, the Tribunal must receive and consider that
evidence and, if it appears that the conviction cannot be supported
having regard to that evidence, it must allow the appeal and quash the
conviction.[^271]

Where the Tribunal quashes a conviction, it may, if the interests of
justice so require, order a new trial.[^272] However, for the purposes
of the *Defense Force Discipline Act* 1982 (Cth), where the Tribunal
quashes a conviction and does not order a new trial, the person is
deemed to have been acquitted of the offence.[^273] On the other hand,
if it considers that the court martial or the Defense Force magistrate
could have found the accused guilty of an alternative offence,[^274] or
of an offence charged in the alternative in respect of which the earlier
tribunal did not record a finding, on the basis of the facts found by
the tribunal, the Tribunal may substitute a conviction of the
alternative offence.[^275]

*5. Representation of Appellants and Hearing of Appeals*

An appellant is entitled to representation before the Tribunal by a
legal practitioner.[^276] Although an appellant is entitled to be
present at the hearing of the matter, it may be heard and determined
notwithstanding the appellant's absence.[^277]

*6. Reference of Questions of Law to Federal Court of Australia*

The Tribunal may, of its own motion or at the request of the appellant
or a chief of staff, refer a question of law arising in a proceeding
before it, not being a proceeding before a single member exercising the
powers of the Tribunal, to the Federal Court of Australia for decision,
and the Full Court of the Federal Court of Australia has jurisdiction to
hear and determine the question of law referred to it.[^278]

## B. The Federal Court of Australia: Appeals from Decisions of the Tribunal

An appellant or a chief of staff may appeal to the Federal Court of
Australia on a question of law involved in a decision of the Tribunal in
respect of an appeal under the *Defense Force Discipline Appeals Act*
1955 (Cth), not being a decision given by a single member exercising the
powers of the Tribunal.[^279] Unless further time is allowed by the
Federal Court of Australia, an appeal must be instituted within 28 days
of the delivery of the decision of the Tribunal.[^280] The jurisdiction
to hear and determine the appeal is exercised by the Federal Court of
Australia constituted as a Full Court, which may make such order as it
thinks appropriate, including an order affirming or setting aside the
decision of the Tribunal; an order remitting the case to be heard and
decided again by the Tribunal in accordance with its directions; or an
order granting a new trial by a court martial or a Defense Force
magistrate.[^281]

## C. Appeals to the High Court of Australia

The High Court of Australia has jurisdiction to hear and determine
appeals from judgments of the Federal Court of Australia, whether in
civil or criminal matters, subject to the following exceptions.[^282]
Except as otherwise provided by another Act, an appeal cannot be brought
a judgment of the Federal Court constituted by a single Judge, nor from
a judgment of a Full Court of the Court unless the High Court gives
special leave to appeal.[^283] The jurisdiction of the High Court to
hear and determine an appeal in accordance with these provisions is
exercised by a Full Court of the High Court consisting of not less than
three Justices.[^284]

## IX. JURISDICTIONAL CHALLENGES TO THE DEFENCE FORCE DISCIPLINE ACT

Over the years, the High Court of Australia has held that the
legislation providing for the trial by court martial of members of the
Australian Defense Force is a valid exercise of the powers given to
Federal Parliament to make laws in relation to "the naval and military
defense of the Commonwealth."[^285]

Since the introduction of the *Defence Force Discipline Act* 1982 (Cth),
questions have arisen about the jurisdiction of the Australian Defence
Force service tribunals to deal with those matters that are also
offences under the ordinary civil law. Between 1989 and 1994 the High
Court of Australia considered three challenges to the jurisdiction of a
service tribunal to hear charges brought under the *DFDA*. They were *Re
Tracey, Ex parte Ryan*; *Re Nolan and Another; Ex parte Young* and *Re
Tyler and Others; Ex parte Foley*. [^286]

The nature of the challenge to the jurisdiction of service tribunals in
each case involved contentions that:

> 1\. The respective charges were not laws appropriate to the discipline
> of the defense forces;
>
> 2\. there was an infringement of the applicant defence member's civil
> and constitutional rights to a trial in the ordinary courts for an
> offence against the general law of Australia; and
>
> 3\. for a service tribunal to hear the charges involved the exercise
> of the judicial power of the Commmonwealth which required the judicial
> officer to be appointed pursuant to Chapter III of the Constitution.

## A. Separation of Powers

The jurisdictional challenges also raised issues of separation of
powers. The separation of powers doctrine has two limbs that relate to
the exercise of judicial power. The first was established in *Huddart,
Parker & Co Pty Ltd v Moorehead*[^287] in which Griffith CJ held that
the exercise of Commonwealth judicial power was limited to Chapter III
courts under section 71 of the Constitution. The second limb of this
doctrine states that Federal Chapter III courts can only exercise
judicial powers and such powers as are ancillary or incidental to the
judicial function as was established in *R* *v Kirby; Ex parte
Boilermakers' Society of Australia*.[^288] The doctrine is said to be a
reflection of the requirement that all people should be subject to the
same law administered by the same tribunals.

The first limb of the separation of powers doctrine is relevant to
service tribunals established under the *DFDA*. The initial question
before the High Court was whether service tribunals exercise the
judicial power of the Commonwealth. The classic definition of judicial
power was made by Griffith CJ in *Huddart Parker:*[^289]

> I am of the opinion that the words 'judicial power' as used in sec. 71
> of the Constitution mean the power which every sovereign authority
> must of necessity have to decide controversies between its subjects,
> or between itself and its subjects, whether the rights relate to life,
> liberty or property. The exercise of this power does not begin until
> some tribunal which has power to give a binding and authoritative
> decision (whether subject to appeal or not) is called upon to take
> action.

*Re Tracey, Ex parte Ryan; Re Nolan, Ex Parte Young* and *Re Tyler and
Ors, Ex Parte Foley* generally accepted the view that section 51(vi) of
the Constitution permits the establishment of service tribunals to
maintain discipline of defence forces. Most Justices agreed that service
tribunals exercise judicial power in the traditional sense described
above:[^290]

> \[N\]o relevant distinction can, in our view, be drawn between the
> power exercised by a service tribunal and the judicial power exercised
> by a court. Nor do we think it possible to admit the appearance of
> judicial power and yet deny its existence by regarding the function of
> a court‑martial as merely administrative or disciplinary.[^291]

In addition, most Justices explained that the exercise of judicial power
by service tribunals does not, of itself, breach the separation of
powers doctrine by distinguishing between "judicial power" *per se* and
"judicial power of the Commonwealth:"[^292]

> Thus the real question in this case is not whether a court‑martial in
> performing its functions under the \[Defence\] Act is exercising
> judicial power. There has never been any real dispute about that. The
> question is whether it is exercising the judicial power of the
> Commonwealth under Ch. III of the Constitution.[^293]

The various judges put forward different reasons for distinguishing
between judicial power exercised by service tribunals and that of the
Commonwealth. They all concluded that service tribunals do exercise
judicial power within the *Huddart Parker* [^294] definition.

Mason CJ, Wilson and Dawson JJ suggested in *Re Tracey* [^295] that
service tribunals could exercise judicial power without breaching
section 71 because that section requires that "unless . . . a contrary
intention may be discerned," judicial jurisdiction must be conferred
only on Chapter III courts. Their Honours considered that a contrary
intention is evident in respect of the defence power as it is essential
for the proper functioning of the defence force that a disciplinary
system of a judicial nature exist within the force and standing outside
Chapter III.[^296]

Dixon and Deane JJ held in *Re Tracey*[^297] that service tribunals
could validly exercise judicial power because they operate independently
of ". . . the judicial system administering the law of the land, which
is comprised of Chapter III courts exercising federal jurisdiction."
Deane JJ went on to state that this distinction involves ". . . an
essentially pragmatic construction of the reference to the judicial
power of the Commonwealth in Chapter Ill."

In *Re Tracey*,[^298] Brennan and Toohey JJ considered whether military
tribunals were exercising "the judicial power of the Commonwealth," such
as would require their compliance with Chapter III of the Constitution.
They quote Dixon J in *R v Cox; Ex parte Smith* [^299] where his Honour
said:

In the case of the armed forces, an apparent exception is admitted and
the administration of military justice by courts-martial is considered
constitutional: *R v Bevan*.[^300] The exception is not real. To ensure
that discipline is just, tribunals acting judicially are essential to
the organisation of an army or navy or air force. But they do not form
part of the judicial system administering the law of the land. It is not
uniformly true that the authority of courts-martial is restricted to
members of the Royal forces. It may extend to others who fall under the
same general military authority, as for instance those who accompany the
armed forces in a civilian capacity.

Their Honours upheld the validity of military tribunals saying that "the
power which is exercised is not the judicial power of the Commonwealth;
it is a power sui generis which is supported solely by s. 51(vi) for the
purpose of maintaining or enforcing service discipline."[^301]

In *Re Tracey*,[^302] Deane JJ also notes the view expressed by Dixon J
in *R v Cox; Ex parte Smith* [^303] that the administration of military
justice by courts martial did not involve a "real" exception to Chapter
III of the Constitution.[^304] In respect of the "immunity" of those
powers from the net cast by Chapter III of the Constitution Deane JJ
says, "The legal rationalisation of such immunity can only lie in an
essentially pragmatic construction of the reference to "the judicial
power of the Commonwealth" in Ch III to exclude those judicial powers of
military tribunals which have traditionally been seen as lying outside
what Dixon J described as "the judicial system administering the law of
the land."[^305]

## B. Offences Amenable to Jurisdiction of Service Tribunals

A further question for resolution by the High Court was, assuming that a
service tribunal is entitled to exercise judicial power without
breaching section 71 of the Constitution, over what *Defence Force
Discipline Act* offences may a service tribunal exercise judicial power?
There is general recognition that "disciplinary" offences cannot be
clearly distinguished from "civil" offences.[^306] Unfortunately the
High Court has not had a unanimous opinion on this distinction and on
the charges that a service tribunal can validly determine.

Mason CJ, Wilson and Dawson JJ in *Re Tracey* [^307] held that service
tribunals can validly exercise judicial power if the exercise is
"sufficiently connected with the regulation of the forces and the good
order and discipline of defence members."[^308] When it came to applying
this test, they considered that, rather than the courts drawing some
arbitrary distinction between military and civil offences, it is up to
the Commonwealth Parliament to determine what is required to regulate
defence force members. Parliament was entitled to determine, as it did
in section 61 of the *Defence Force Discipline Act* 1982 (Cth), that any
civil offence committed by a defence member will disrupt the order and
discipline of the forces and will, therefore, amount to a military
offence.[^309] Mason CJ and Dawson JJ maintained this view in *Re Nolan*
[^310] and *Re Tyler.*[^311]

In *Re Tracey, Re Nolan* and *Re Tyler,*[^312] Brennan and Toohey JJ
considered that proceedings before a service tribunal in relation to a
military offence could only be brought if they substantially served the
purpose of maintaining or enforcing service discipline. This test seems
not unlike the "substantial connection" approach advocated by Mason CJ,
Wilson and Dawson JJ. However, Brennan and Toohey JJ did not beleive it
should be up to Parliament to determine, pursuant to section 61 of the
*Defence Force Discipline Act* 1982 (Cth), that proceedings in relation
to the commission of civil offences by defence members would always
serve the requisite purpose. Instead, their Honours stated that this
would depend on the facts of a particular case, including consideration
of "whether the jurisdiction of a competent civil court can conveniently
and appropriately be invoked to hear and determine a corresponding civil
court offence."[^313] This view recognises the practical difficulties
associated with hearing civil offences in remote parts of Australia or
outside Australia during times of war.

One difficulty with the approach adopted by Brennan and Toohey JJ is the
practical task of distinguishing between offences that substantially
serve the purpose of maintaining or enforcing service discipline and
those that do not. In practice, service tribunals must determine, as a
preliminary question, whether proceeding with a particular matter
substantially serves the purpose of maintaining or enforcing service
discipline.

Gaudron J's approach in *Re Tracey, Re Nolan* and *Re Tyler* [^314] was
based on the nature of the defence power as a "purposive" power.[^315]
Her Honour noted that the criterion for assessing the validity of a
purported exercise of such a power is "that it is reasonably capable of
being regarded as appropriate and adapted to the object which gives the
law in question its character as a law with respect to the relevant head
of power."[^316] Accordingly, the limits of judicial power exercisable
by a service tribunal depend on the extent to which the exercise of the
power is "appropriate and adapted" to the object of controlling the
defence forces under section 51(vi) of the Constitution. Application of
this criterion depends on the circumstances engaging the power and the
situations in which the forces are deployed.[^317]

Gaudron J considered that where defence members are serving outside
Australia, it will often be inappropriate for offences to be heard by
the ordinary Australian courts.[^318] Her Honour considered that, in
these circumstances, military tribunals will be entitled to hear charges
which could otherwise be put before the civil courts. These service
proceedings would be permitted by section 51(vi) of the Constitution and
would not breach Chapter III. By contrast, "the vesting of jurisdiction
in service tribunals to hear and determine service offences which are
substantially the same as civil court offences cannot reasonably be
regarded as appropriate and adapted to the object of control of the
forces."[^319] Hence, Gaudron J considered the *Defence Force Discipline
Act* 1982 (Cth) to be invalid to the extent that it purported to vest
jurisdiction in service tribunals to hear service offences substantially
the same as civil offences in times of peace and general civil
order.[^320].

In *Re Tracey,*[^321] Deane JJ emphasised the significance of the
separation of powers doctrine to the Constitution as a whole and, in
particular, the importance of ensuring that judicial power is exercised
only by Chapter III courts. Speaking of the justification of the
doctrine of the separation of judicial from executive and legislative
powers, his Honour said that "To ignore the significance of the doctrine
or to discount the importance of safeguarding the true independence of
the judicature upon which the doctrine is predicated is to run the risk
of undermining, or even subverting, the Constitution's only general
guarantee of due process."[^322] In the subsequent case *Re Tyler*, his
Honour said that he continued to reject what he saw "as an unjustifiable
denial of the applicability of the Constitution's fundamental and
overriding guarantee of judicial independence and due process to laws of
the Parliament providing for the trial and punishment of members of the
armed forces for ordinary (in the sense of not exclusively disciplinary)
offences committed within the jurisdiction of the ordinary courts in
times of peace and general civil order."[^323] Addressing the
traditional confinement of the nature and range of the disciplinary
powers of military tribunals in *Re Tracey*,[^324] his Honour said:

It avoids the creation of a military class removed from the reach of the
ordinary law and courts of the land. . . . It protects the civilian from
being subjected to military law and deprived of the benefits and
safeguards of the administration of justice by independent courts. It
limits the extent to which those subject to military authority are
deprived of those benefits and safeguards to what is 'thought necessary'
for the maintenance and enforcement of military discipline and
duty.[^325]

His Honour considered that the *Defence Force Discipline Act* 1982 (Cth)
cannot validly grant jurisdiction to military tribunals to deal with
offences against the *Defence Force Discipline Act* 1982 (Cth) that are
also offences under the ordinary State or Commonwealth criminal law,
even though they might have a disciplinary aspect. His Honour considered
that these provisions could not be saved by reading down or
severance.[^326] Only the exclusively disciplinary offences under the
*Defence Force Discipline Act* 1982 (Cth) were excluded from the
application of Chapter III and hence, could be validly dealt with by
military tribunals.[^327] Deane JJ took the same view in *Re Nolan*
[^328] and *Re Tyler*.[^329]

McHugh J agreed with Deane JJ's approach in *Re Nolan*.[^330] However,
in the most recent case of *Re Tyler,*[^331] McHugh J acknowledged that
no *ratio decidendi* could be discerned from *Re Tracey* [^332] or *Re
Nolan,*[^333] but stated that a court (other than the High Court) must
apply the decision of an earlier case lacking a *ratio decidendi* where
the circumstances of the new case are not reasonably distinguishable
from the earlier case.[^334] As the reasoning of the majority of
Justices in both *Re Tracey* [^335] and *Re Nolan* [^336] was different
to that of Deane JJ, namely that military tribunals are restricted to
dealing with exclusively disciplinary offences, McHugh J felt compelled
to give effect to the majority view:

> Although I remain convinced that the reasoning of the majority
> justices in *Re Nolan* and *Re Tracey* is erroneous, I do not regard
> that as a sufficient reason to refuse to give effect to the decisions
> in those cases. They are recent decisions of the Court where, after
> full argument on each occasion, the Court upheld the validity of the
> Act in circumstances where the facts are not readily distinguishable
> from the present case.[^337]

In summary, the High Court cases have held that:

1\. No distinction can be drawn between the power exercised by a service
tribunal and the judicial power exercised by a Court.

2\. The powers bestowed by section 51 of the Constitution are subject to
the Constitution and thus subject to Chapter III of the Constitution.

3\. The proper organisation of a defence force requires a system of
discipline which is administered judicially, not as part of the
judicature established under Chapter III of the Constitution, but as
part of the organisation of the force itself. Thus the power to make
laws with respect to the defence of the Commonwealth contains within it
the power to enact a disciplinary code standing outside Chapter III of
the Constitution and to impose upon those administering that code the
duty to act judicially.

4\. As a matter of history and of contemporary practice, it has commonly
been considered appropriate for the proper discipline of a defence force
to subject its members to penalties under service law for the commission
of offences punishable under civil law even where the only connection
between the offences and the defence force is the service membership of
the offender. Such legislation is based on the premise that as a matter
of discipline, the proper administration of a defence force requires the
observance by its members of the standards of behaviour demanded of
ordinary citizens the enforcement of those standards by military
tribunals, that is, Parliament can take the view that what is good for
society is good for the regulation of the defence forces and give effect
to that view by creating service offences which are cumulative upon
rather than in substitution for civil offences.

#### **X. Conclusion**

As is the case with the Canadian, New Zealand and United States military
justice systems, the Australian system is derived from and based upon
the English common law. Each of these systems is the result of a fairly
lengthy evolutionary process. While each of the three Services was
initially subject to the *Defence Act 1903* (Cth), the Navy and the Air
Force were subsequently granted their own legislation. However, the
administration of discipline in all three Services was effectively
governed by the respective English legislation, by reference in the
Australian law, until 1985. Since 1985 they have all come under the
provisions of the *Defence Force Discipline Act 1982* (Cth).

A requirement for the maintenance of discipline in the military was
recognised at an early stage. Furthermore, judicial opinion was that
soldiers should be tried by their officers for all offences committed in
a military capacity and civilian courts would not review proceedings of
courts martial so long as they acted within their jurisdiction. It was
not until 1955 in Australia that appeal was available from the decision
of a court martial to any court, either civil or military. In addition
to the right to review by petition within the military system, there is
also available a right of appeal against conviction to civilian courts
or courts that are constituted by civilian judges which is comparable to
that applicable to civilian criminal proceedings.

The advent of the *Defence Force Discipline Act 1982* (Cth) has meant
that the service tribunals that are tasked with trying offences, the
authorities, the tribunals, and the courts that may entertain petitions
and appeals from their decisions, and the practices and procedures that
are applicable to proceedings that are conducted before those tribunals
and courts closely parallel those applicable in the Australian civilian
courts.

Finally, it is abundantly clear that by becoming soldiers, the members
of the Australian armed forces do not shed any of the rights and duties
of citizens. Where the duties of a soldier and a citizen conflict, the
duties of the citizen prevail.

[^1]: ^^ *Wing Commander Healy is a member of the Australian Defence
    Force (specifically, the Royal Australian Air Force), and currently
    working in The Defence Legal Office as the Deputy Director of
    Military Justice, Wing Commander Healy\'s academic qualifications
    include a Bachelor of Laws degree (LLB) with honours from Melbourne
    University, a Diploma of Social Science from the University of New
    England, a Bachelor of Science degree from the Australian National
    University, a Batchelor of Social Science degree with honours from
    Charles Sturt University, and a Master of Laws (LLM) from Melbourne
    University.*

[^2]: Sarah Dawson (ed), *The Penguin Australian Encyclopaedia* (1990)
    135; Jeffrey Grey, *A Military History of Australia* (1990) 9;
    Gerald Walsh, "The Military and the Development of the Australian
    Colonies, 1788-1888" in Michael McKernan & Margaret Browne (eds),
    *Australia: Two Centuries of War & Peace* (1988) 44.

[^3]: Eg, *The Volunteer Force Regulation Act* 1867 (NSW); *Defences and
    Discipline Act* 1890 (Vic); *The* *Defence Act*s 1884 to 1896 (Qld);
    The *Defence Act* 1885 (Tas); The *Safety of* *Defence Act* 1892
    (WA); and *The* *Naval Discipline Act* 1884 (SA).

[^4]: Eg, *The Discipline Act 1870* (Vic) ss 10 and 11.

[^5]: 63 & 64 Vict, c 12.

[^6]: *Defence Act* 1903 (Cth) s 6.

[^7]: *Id.* s 124.

[^8]: Statutory Rules 1904 No 71.

[^9]: Statutory Rules 1906 No 20 - which effectively applied the English
    law.

[^10]: Statutory Rules 1922 No 160 - which applied the *Australian
    Military Regulations*

    (Statutory Rules 1916 No 66) to the Air Force.

[^11]: Statutory Rules 1927 No 161.

[^12]: Statutory Rules 1935 No 133.

[^13]: The Royal Australian Navy was formed in 1910; the Royal
    Australian Air Force in 1921.

[^14]: *Defence Act* 1903 (Cth) s 5.

[^15]: 29 & 30 Vict, c 109; *Defence Act* 1903 (Cth) s 56.

[^16]: *Naval Defence Act* 1910 (Cth) s 36.

[^17]: 6 Eliz 2, c 53.

[^18]: Naval *Defence Act* 1964 (Cth) s 34.

[^19]: By the *Defence Force (Miscellaneous Provisions) Act* 1982 (Cth)
    s 83.

[^20]: *Defence Act* 1903 (Cth) s 5.

[^21]: 44 & 45 Vict, c 58.

[^22]: *Defence Act* 1903 (Cth) s 55.

[^23]: *Id.* s 14.

[^24]: *Defence Act* 1903 (Cth) s 28.

[^25]: 44 & 45 Vict, c 58.

[^26]: By the *Defence Force (Miscellaneous Provisions) Act* 1982 (Cth)
    s 51.

[^27]: *Air Force Act* 1923 (Cth) s 3(3).

[^28]: 44 & 45 Vict, c 58.

[^29]: *Air Force Act* 1923 (Cth) s 3(5).

[^30]: 7 & 8 Geo 5, c 51.

[^31]: *Air Force Act* 1939 (Cth) s 6.

[^32]: By the *Defence Force (Miscellaneous Provisions) Act* 1982 (Cth)
    s 9.

[^33]: *Defence Force Discipline Act* 1982 (Cth) (hereinafter referred
    to as "*DFDA*") s 10.

[^34]: *DFDA* s 3(1).

[^35]: *DFDA* Part VI ss 101--101ZC.

[^36]: *DFDA* ss 98-100.

[^37]: *DFDA* Part V ss 88--95.

[^38]: *DFDA* s 83.

[^39]: *DFDA* s 84.

[^40]: *DFDA* s 75.

[^41]: *DFDA* s 172.

[^42]: *DFDA* ss 78, 79, 81, 82, and 173.

[^43]: *DFDA* Part X ss 170--177.

[^44]: *DFDA* s 169F(4).

[^45]: *DFDA* s 3(1) and Pt VII, Div 2.

[^46]: *DFDA* ss 106-111.

[^47]: *DFDA* s 102. Convening authorities are appointed by chiefs of
    staff by instrument in writing. *Id*.

[^48]: *DFDA* s 103.

[^49]: *DFDA* s 114(2).

[^50]: *DFDA* s 116(1)(a).

[^51]: *DFDA* s 116(1)(b).

[^52]: *DFDA* s 116(1)(c).

[^53]: *DFDA* s 116(2)(a).

[^54]: *DFDA* s 115(1).

[^55]: *DFDA* ss 67(1) and 68(1), and Schedule 2.

[^56]: *DFDA* s 102.

[^57]: *DFDA* s 114(3).

[^58]: *DFDA* s 116(2)(b).

[^59]: *DFDA* Schedule 2.

[^60]: *DFDA* ss 67(1) and 68(1), and Schedule 2.

[^61]: *DFDA s 196(2*). In order to be eligible to be nominated to the
    panel by the Judge Advocate General, an officer must be enrolled as
    a legal practitioner and have been so enrolled for not less than
    five years. *DFDA* s 196(3).

[^62]: *DFDA* s 196(4).

[^63]: *DFDA* ss 127 and 128(1).

[^64]: *DFDA* s 103(1)(c).

[^65]: *DFDA* s 129(1).

[^66]: *DFDA* ss 67(1) and 68(1), and Schedule 2.

[^67]: *DFDA* s 105(1).

[^68]: *DFDA* s 63. These offences include treason, murder,
    manslaughter, bigamy, and specified sexual assaults.

[^69]: *DFDA* s 106(a).

[^70]: *DFDA* ss 106(b) and (c).

[^71]: *DFDA* ss 110(1)(b) and (c).

[^72]: *DFDA* ss 67(2) and 68(1), and Schedule 3, Table A.

[^73]: *DFDA* s 107(1).

[^74]: *DFDA* s 107(2)(a).

[^75]: *DFDA* s 107(2)(b).

[^76]: *DFDA* ss 103(1)(b) and 111(2)(c).

[^77]: *DFDA* s 3(1).

[^78]: *DFDA* s 131.

[^79]: *DFDA* ss 67(2) and 68(1), and Schedule 3, Table B.

[^80]: *DFDA* s 105(2).

[^81]: *DFDA* s 108(1).

[^82]: *DFDA* ss 108(1A) and (4).

[^83]: As defined in *DFDA* s 104, which includes the offences of
    treason, murder, manslaughter, bigamy, and specified sexual
    offences.

[^84]: *DFDA* s 108(2).

[^85]: *DFDA* s 108(3).

[^86]: *DFDA* ss 67(2) and 68(1), and Schedule 3, Table C.

[^87]: *Defence Legislation Amendment Act* 1995 (Cth) Sch 2 ¶ 30; the
    new provisions came into effect on 1 November 1995.

[^88]: *Discipline Law Manual* (Aust) (1996) Vol 1, ¶ 1327.

[^89]: *DFDA* ss 169G(2) and (3).

[^90]: *DFDA* ss 169A and F.

[^91]: *DFDA* s 169B. *DFDA* s 3(1) defines "officer" to mean a person
    appointed as an officer.

[^92]: *DFDA* s 169C.

[^93]: *DFDA* s 169F(1).

[^94]: *DFDA* ss 179(1) and (3).

[^95]: *DFDA* ss 183(1) and (2).

[^96]: *DFDA* s 180(1).

[^97]: *DFDA* ss 186(1) and (2).

[^98]: *DFDA* s 186(3).

[^99]: *DFDA* s 179(2).

[^100]: *DFDA* ss 183(1) and (2).

[^101]: *DFDA* s 180(2). However, in practice the Deputy Judge Advocates
    General who have been appointed have been either judges or very
    senior counsel.

[^102]: *DFDA* ss 186(1)--(4).

[^103]: *DFDA* ss 134(1) and (2).

[^104]: *DFDA* s 134(4).

[^105]: *DFDR* reg. 32.

[^106]: *DFDR* reg. 36.

[^107]: *DFDR* reg. 31.

[^108]: *DFDA* s 133(1)(a).

[^109]: Pursuant to *DFDR* reg. 15.

[^110]: *DFDR* reg. 16(1).

[^111]: *DFDR* reg. 16(2).

[^112]: *DFDR* reg. 13.

[^113]: Act No. 152 of 1982.

[^114]: Statutory Instrument No. 125 of 1985.

[^115]: Statutory Instrument No. 128 of 1985.

[^116]: Act No. 16 of 1955.

[^117]: Act No. 156 of 1976.

[^118]: A territory of the Commonwealth of Australia.

[^119]: *DFDA* s 146.

[^120]: *Defence Force Discipline Regulations* (Cth) (hereinafter
    referred to as "*DFDRegs*")

    reg 27.

[^121]: *DFDA* s 147.

[^122]: *DFDA* s 149(1).

[^123]: As per Part XII of the *Acts Interpretation Act* 1901 (Cth)
    relating to regulations.

[^124]: *DFDA* ss 149(1)(a)--(h).

[^125]: *DFDA* s 197(1).

[^126]: *DFDA* s 140(1).

[^127]: *DFDA* s 140(2).

[^128]: *DFDA* ss 138(1)(a) and 139(1).

[^129]: *DFDR* reg. 18(1).

[^130]: *DFDR* regs. 55(1)(a) and (b).

[^131]: *DFDR* regs. 55(2) and (3)(a).

[^132]: *DFDR* reg. 54(1).

[^133]: *DFDR* reg. 54(2).

[^134]: *DFDR* reg. 54(3).

[^135]: *DFDR* reg. 54(4).

[^136]: *DFDA* s 10.

[^137]: *DFDA* ss 12(1) and (2).

[^138]: The Criminal Code is contained in the Schedule to the *Criminal
    Code Act* 1995 (Cth) -- Act No 12 of 1995.

[^139]: *DFDA* ss 68(1)(a) and (p).

[^140]: *DFDA* s 70(1).

[^141]: *DFDA* s 141A(1)(a).

[^142]: *DFDA* ss 141A(1)(b)-(d).

[^143]: *DFDR* reg. 12.

[^144]: *DFDR* reg. 35(1).

[^145]: *DFDR* reg. 35(2).

[^146]: *DFDR* reg. 42.

[^147]: *DFDR* reg. 43.

[^148]: *DFDR* reg. 19(1).

[^149]: *DFDR* reg. 19(2).

[^150]: *DFDR* reg. 19(3).

[^151]: *DFDR* reg. 19(4).

[^152]: *DFDR* reg. 40.

[^153]: *DFDR* reg. 44.

[^154]: *DFDR* reg. 45.

[^155]: *DFDR* reg. 47(1).

[^156]: *DFDR* reg. 47(2).

[^157]: *DFDR* regs. 47(3) and (4).

[^158]: *DFDR* reg. 48.

[^159]: *DFDR* reg. 49(a).

[^160]: *FDR* regs. 49(b) and (c).

[^161]: *DFDA* ss 133(1)-(3).

[^162]: *DFDA* s 133(4).

[^163]: *DFDA* s 133(6).

[^164]: *DFDR* reg. 33.

[^165]: *DFDR* reg. 50(1)(a).

[^166]: *DFDR* regs. 50(1)(b) and (c).

[^167]: *DFDR* regs. 50(2)(a) and (b).

[^168]: *DFDR* reg. 50(3).

[^169]: *DFDA* ss 95(1)-(2).

[^170]: *DFDA* s 95(4).

[^171]: *DFDA* s 95(5).

[^172]: *DFDA* ss 95(8)-(9).

[^173]: *DFDA* s 96(1).

[^174]: *DFDA* s 96(6).

[^175]: *DFDA* ss 15, 16, 20, 22 and 96(2).

[^176]: *DFDA* s 101B(1).

[^177]: *DFDA* s 101B(2).

[^178]: *DFDA* ss 101C(1)-(2).

[^179]: *DFDA* s 101D(1).

[^180]: *DFDA* s 101E(1).

[^181]: *DFDA* s 101H(1).

[^182]: *DFDA* s 101JA.

[^183]: *DFDA* s 101L(1)(a).

[^184]: *DFDA* s 101M(1).

[^185]: *DFDA* ss 101N, P, and Q.

[^186]: *DFDA* s 101X.

[^187]: *DFDR* reg. 15.

[^188]: *DFDR* reg. 29(1)(a).

[^189]: *DFDR* reg. 29(1)(b).

[^190]: *DFDR* reg. 29(1)(c). These documents must also be provided to
    the accused in a trial by Defence Force magistrate.

[^191]: *DFDR* regs. 28(a) and (b).

[^192]: *DFDR* regs. 29(2)(a)(i) and (ii).

[^193]: *DFDA* s 136.

[^194]: *DFDA* s 137. *DFDA* s 3(1) defines a legal officer as a member
    of the Australian Defence Force who is a duly qualified legal
    practitioner.

[^195]: *DFDR* reg. 23(2).

[^196]: *DFDR* reg. 24(1).

[^197]: *DFDR* reg. 24(2).

[^198]: *DFDR* reg. 24(3).

[^199]: *DFDR* reg. 24(2A).

[^200]: *DFDR* reg. 24(1).

[^201]: *DFDA* s 169G(2).

[^202]: *DFDA* s 139.

[^203]: *DFDR* reg. 34.

[^204]: *DFDR* reg. 39.

[^205]: *DFDR* reg. 37(1).

[^206]: *DFDR* reg. 37(2).

[^207]: *DFDR* reg. 37(3).

[^208]: *DFDR* reg. 37(4).

[^209]: *DFDR* reg. 37(5)(a).

[^210]: *DFDR* reg. 37(5)(b).

[^211]: *DFDA* s 141(1)(a).

[^212]: *DFDA* s 141(1)(b).

[^213]: *DFDR* reg. 39.

[^214]: *DFDA* s 130(1)(a) (summary authorities); s 135(1)(a) (Defence
    Force magistrates); and s 132(1)(a) (courts martial).

[^215]: *DFDA* s 130(1)(b) (summary authorities); s 135(1)(b) (Defence
    Force magistrates); and s 132(1)(b) (courts martial).

[^216]: *DFDA* s 130(1)(c) (summary authorities); s 135(1)(c) (Defence
    Force magistrates); and s 132(1)(c) (courts martial).

[^217]: *DFDA* s 130(1)(d) (summary authorities); s 135(1)(d) (Defence
    Force magistrates); and s 132(1)(d) (courts martial).

[^218]: *DFDA* s 130(1)(e) (summary authorities).

[^219]: *DFDA* s 135(1)(e) (Defence Force magistrate); and s 132(1)(e)
    (courts martial).

[^220]: *DFDA* s 130(1)(f) (summary authorities); s 135(1)(f) (Defence
    Force magistrates); and s 132(1)(f) (courts martial).

[^221]: *DFDA* s 130(4) (summary authorities); 135(5) (Defence Force
    magistrates); and s 132(5) (courts martial).

[^222]: *DFDA* s 130(1)(g) (summary authorities); s 135(1)(g) (Defence
    Force magistrates); and s 132(1)(g) (courts martial).

[^223]: *DFDR* reg. 41(1).

[^224]: *DFDR* reg. 41(2).

[^225]: *DFDR* reg. 41(3).

[^226]: *DFDA* s 150.

[^227]: *DFDA* s 169F(4).

[^228]: *DFDA* ss 151(1) and (2).

[^229]: *DFDA* ss 151(3) and (4).

[^230]: *DFDA* s 151(5).

[^231]: *DFDA* ss 152(1) and (2).

[^232]: *DFDA* s 154(1)(a).

[^233]: *DFDA* s 154(1)(b).

[^234]: *DFDA* ss 154(2) and (3).

[^235]: *DFDA* s 154(4).

[^236]: *DFDA* s 153(1).

[^237]: *DFDA* s 153(2).

[^238]: *DFDA* s 153(4).

[^239]: *DFDA* s 154(1).

[^240]: *DFDA* s 155(1).

[^241]: *DFDA* s 155(2).

[^242]: *DFDA* s 155(3).

[^243]: *DFDA* s 155(4).

[^244]: *DFDA* s 156(1).

[^245]: *DFDA* s 156(2).

[^246]: *DFDA* s 158.

[^247]: *DFDA* s 159.

[^248]: *DFDA* s 160(1).

[^249]: *DFDA* s 160(2).

[^250]: *DFDA* ss 142 and 161(1).

[^251]: *DFDA* s 161(2).

[^252]: *DFDA* s 162(1).

[^253]: *DFDA* ss 131 and 162(3).

[^254]: *DFDA* s 162(5).

[^255]: *DFDA* s 172. The punishments include imprisonment for life,
    imprisonment for a specific period, and dismissal from the Defence
    Force. The punishments of detention, reduction in rank, forfeiture
    of seniority, and a fine of an amount in excess of 14 days pay are
    also subject to approval if awarded by a summary authority.

[^256]: *DFDA* s 168.

[^257]: *DFDA* ss 169(1) and (2).

[^258]: *DFDA* s 171(1).

[^259]: *DFDA* s 171(1A).

[^260]: *DFDA* s 74.

[^261]: *DFDA* s 176.

[^262]: *Defence Force Discipline Appeals Act* 1955 (Cth) (hereinafter
    referred to as "*DFDAA*") ss 6 and 7 (The Act was formerly known as
    the *Courts-Martial Appeals Act* 1955 (Cth)).

[^263]: *DFDAA* s 8.

[^264]: *DFDAA* s 18.

[^265]: *DFDAA* s 15(1).

[^266]: *DFDAA* s 17(1).

[^267]: *DFDAA* s 20(1).

[^268]: *DFDA* s 152.

[^269]: *DFDAA* s 21.

[^270]: *DFDAA* s 23(1).

[^271]: *DFDAA* s 23(2).

[^272]: *DFDAA* s 24.

[^273]: *DFDAA* s 41.

[^274]: As specified by *DFDA* s 142.

[^275]: *DFDAA* s 26.

[^276]: *DFDAA* s 39(1).

[^277]: *DFDAA* ss 39(2) and (3).

[^278]: *DFDAA* ss 51(1) and (2).

[^279]: *DFDAA* s 52(1).

[^280]: *DFDAA* s 52(2).

[^281]: *DFDAA* ss 52(3)-(5).

[^282]: *Federal Court of Australia Act* 1976 (Cth) s 33(1).

[^283]: *Id.* ss 33(2) and (3).

[^284]: *Id.* 33(6).

[^285]: *R v Bevan; Ex parte Elias and Gordon* (1942) 66 CLR 452; *R v
    Cox; Ex parte Smith* (1945) 71 CLR 1; *Re Tracey; Ex parte Ryan*
    (1989) 166 CLR 518; *Re Nolan & Anor; Ex parte Young* (1991) 172 CLR
    460; *Re Tyler & Ors; Ex parte Foley* (1994) 181 CLR 18.

[^286]: Respectively cited (1989) 166 CLR 518; (1991) 172 CLR 460; and
    (1994) 181 CLR 18.

[^287]: \(1909\) 8 CLR 330.

[^288]: \(1956\) 94 CLR 254.

[^289]: \(1909\) 8 CLR 330 at 357.

[^290]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 537 (per Mason
    CJ, Wilson and Dawson JJ), at 574 (per Brennan and Toohey JJ), at
    582 (per Deane J) and at 598 (per Gaudron J).

[^291]: *Id.* at 537 (per Mason CJ, Wilson and Dawson JJ).

[^292]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 541, 572-574
    and 598; cf 582-583; *Re Nolan & Anor; Ex parte Young* (1991) 172
    CLR 460 at 498; *Re Tyler; & Ors* (1994) 181 CLR 18 at 32 (per
    Brennan and Toohey JJ).

[^293]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 540 (per Mason
    CJ, Wilson and Dawson JJ).

[^294]: \(1909\) 8 CLR 330.

[^295]: \(1989\) 166 CLR 518.

[^296]: *Id.* at 540-541.

[^297]: \(1989\) 166 CLR 518.

[^298]: *Id*. at 565.

[^299]: \(1945\) 71 CLR 1 at 23.

[^300]: \(1942\) 66 CLR 452 at 467, 468, 481.

[^301]: \(1989\) 166 CLR 518 at 574.

[^302]: \(1989\) 166 CLR 518.

[^303]: \(1945\) 71 CLR 1 at 23.

[^304]: \(1989\) 166 CLR 518 at 581.

[^305]: *Id*. at 583.

[^306]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 544 (per Mason
    CJ, Wilson and Dawson JJ) and at 555 (per Brennan and Toohey JJ);
    *Re Nolan & Anor; Ex parte Young* (1991) 172 CLR 460 at 474 (per
    Mason CJ and Dawson J); *Re Tyler & Ors; Ex parte Foley* (1994) 181
    CLR 18 at 26 (per Mason CJ and Dawson J).

[^307]: \(1989\) 166 CLR 518.

[^308]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 545.

[^309]: *Id.* at 544-545.

[^310]: *Re Nolan & Anor; Ex parte Young* (1991) 172 CLR 460 at 474-475.

[^311]: *Re Tyler & Ors; Ex parte Foley* (1994) 181 CLR 18 at 26.

[^312]: *Supra* note Error: Reference source not found.

[^313]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 570.

[^314]: *Supra* note Error: Reference source not found.

[^315]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 596.

[^316]: *Id.* at 597.

[^317]: *Id.* at 600; *Re Nolan & Anor; Ex parte Young* (1991) 172 CLR
    460 at 498; *Re Tyler & Ors; Ex parte Foley* (1994) 181 CLR 18 at
    35..

[^318]: *Re Tracey; Ex parte Ryan* (1989) 166 CLR 518 at 601.

[^319]: *Id.* at 602.

[^320]: *Id.* at 603.

[^321]: \(1989\) 166 CLR 518.

[^322]: *Id.* at 580.

[^323]: \(1994\) 181 CLR 18 at 34.

[^324]: \(1969\) 166 CLR 518.

[^325]: *Id.* at 584.

[^326]: *Id.* at 588.

[^327]: *Id.* at 591.

[^328]: \(1991\) 172 CLR 460 at 489-493.

[^329]: \(1994\) 181 CLR 18 at 34.

[^330]: *Re Nolan & Anor; Ex parte Young* (1991) 172 CLR 460 at 499.

[^331]: \(1994\) 181 CLR 18.

[^332]: \(1989\) 166 CLR 518.

[^333]: \(1991\) 172 CLR 460.

[^334]: *Re Tyler & Ors; Ex parte Foley* (1994) 181 CLR 18 at 37.

[^335]: \(1989\) 166 CLR 518.

[^336]: \(1991\) 172 CLR 460.

[^337]: *Re Tyler & Ors; Ex parte Foley* (1994) 181 CLR 18 at 39.