Summary Proceedings Within The Australian Military Justice System: How and Why Are They Inherently Unjust?

SUMMARY PROCEEDINGS WITHIN THE
AUSTRALIAN MILITARY JUSTICE SYSTEM: HOW
AND WHY ARE THEY INHERENTLY UNJUST?
CLAIRE NEWHOUSE
A paper submitted for Honours Thesis
Faculty of Law, The Australian National University
31 October 2005
Word length: 10,999
2
CONTENTS
3
INTRODUCTION
In June 2005, the Senate Foreign Affairs, Defence and Trade References Committee
tabled a report entitled ‘The effectiveness of Australia’s military justice system’
which concluded unanimously that a major overhaul of the system was urgently
required.1 The Report focused almost exclusively on military justice delivered by the
Courts Martial and Defence Force Magistrates (DFM), largely ignoring the summary
process.2 Yet the vast majority of military justice is delivered summarily in Australia.
3
This fact alone points to the importance of considering in detail the process of
summary proceedings.
There has been little academic commentary about summary proceedings within the
military justice system. What there is tends to briefly mention summary proceedings
in passing before moving on to discuss hearings by Courts Martial and DFM.4 This
thesis considers the concept and quality of justice provided by summary proceedings
conducted under the Defence Force Discipline Act 1982 (Cth) (DFDA). The process
of summary justice is considered using the theoretical framework developed by socio-
legal academic, Dr Doreen McBarnet in 1979.5 Her research, mainly involving
observational study in Scotland’s lower courts, resulted in seminal sociological study
focused on the structure, substance and procedure of the law.6 In particular her
ideology of triviality in the lower level of the legal system is applied to summary
1
Senate Foreign Affairs, Defence and Trade References Committee, Commonwealth, The
effectiveness of Australia’s military justice system (2005).
2
Ibid xxii and 96.
3
General Peter Cosgrove, Defence Submission to the Inquiry into the effectiveness of Australia’s
military justice system, (19 February, 2005) 101.
4
See, for example R A Brown, ‘The Constitutionality of Service Tribunals under the Defence Force
Discipline Act 1982’ (1985) 59(6) The Australian Law Journal 319, 325.
5
D J McBarnet, Conviction: Law, the State and the Construction of Justice (1989).
6
Ibid, 1 and 9.
4
justice under the DFDA.7 It is argued that summary proceedings are inherently unjust
by comparison with the standards applied in higher courts in the way they are
administered with a reduction of due process.
Chapter I initially provides a review of the Australian military justice system
necessary to an understanding of summary proceedings. The chapter then examines
in detail the way summary proceedings are conducted according to legislation,
regulations and Department of Defence guidelines.
Chapter II introduces McBarnet’s theory of the ideology of triviality in the lower
courts and considers its application to the operation of summary proceedings under
the DFDA. McBarnet claims that there are two justifications used for the reduction of
due process in the lower courts; firstly, that the offences and punishments are trivial,
and secondly, that at this level the offences do not involve much law or require
lawyers.8 This chapter considers the offences heard and punishments given by the
summary authorities under the DFDA in light of McBarnet’s theory. While some
offences and punishments can be regarded as trivial, others have the potential to
seriously affect service personnel’s lives. The lack of lawyers in summary
proceedings, and the fact that they are conducted as closed courts, is also considered
in light of the justifications for why due process is generally absent in the lower
courts. This thesis also highlights aspects of the DFDA which do not appear to
comply with the due process fair trial principles.
7
Ibid.
8
Ibid, 143.
5
Chapter III is a case study which explores and tests McBarnet’s theory for why due
process is not present in the lower courts. This chapter demonstrates that despite the
triviality placed on lower court hearings, because there is considered to be not much
law involved, the opposite is in fact true. Cases concerning section 60 of the DFDA
show the complexity of Australian military law administered summarily. Therefore,
this justification for the reduction in due process found in McBarnet’s thesis is not
applicable to summary proceedings for s 60 offences.
6
CHAPTER I SUMMARY PROCEEDINGS WITHIN THE
AUSTRALIAN MILITARY JUSTICE SYSTEM
I INTRODUCTION
In order to explore whether summary proceedings conducted within the Australian
military justice system are inherently unjust according to the fair trial principles
reflected in common law, statutory provisions and enumerated in Art 14 of the
International Covenant on Civil and Political Rights (ICCPR), it is important to
understand how the system is designed to work. This chapter describes the legal
framework covering summary procedures conducted under the DFDA, the types of
summary proceedings available and how they are designed to operate.
II SERVICE DISCIPLINE
The discipline of service personnel has historically been, and still is, seen as
fundamental to the success of the armed forces. An Australian military law textbook
written between the World Wars described this area of the law as ‘the servant of the
army organisation’ and went on to state that ‘[n]o army could exist unless the
individual soldiers were prepared to submit to discipline at the risk of their lives.’9
Former Chief of the Australian Defence Force (ADF), General Peter Cosgrove,
described discipline as being ‘integral to the effectiveness and efficiency of
professional fighting forces.’10 Service discipline has been judicially described as ‘not
merely punishment for wrongdoing’ but ‘the maintenance of standards and morale in
9
A N Lewis, Australian Military Law (1936) 5.
10
Cosgrove, above n 3, 6.
7
the service community of which the member is an offender, the preservation of
respect for and the habit of obedience to lawful service authority and the enhancing of
efficiency in the performance of service functions’.11
A distinctive feature of the ADF which is important to the administration of service
discipline is the Chain of Command. The ADF functions through a Chain of
Command which extends across the entire force ensuring that all members are subject
to a commander who is in turn responsible and accountable for the personnel under
them.12 Command has been explained as ‘the lawful authority an individual exerts
over subordinates by virtue of rank and appointment.’13 According to General
Cosgrove it is the DFDA which provides the vital foundation for the Chain of
Command in the ADF by establishing the legal basis for the exercise of discipline
which is essential to command.14 Certain offences under the DFDA provide
protection for the Chain of Command such as; falling to carry out orders,15 disobeying
a lawful command,16 and failing to comply with a general order.17
III THE LEGAL FRAMEWORK
The Commonwealth has the power to enact legislation concerning ‘the control of the
forces’ under the defence power found in s 51(vi) of the Australian Constitution.18
The High Court has held that the Commonwealth Parliament has the power to
11
Re Nolan; Ex parte Young (1991) 172 CLR 460, 489 (Brennan and Toohey, JJ).
12
13
H Gulam, ‘An update on military justice: the 20th anniversary of the Defence Force Discipline Act’
(2004) 9(1) Deakin Law Review 227, 229.
14
15
Defence Force Discipline Act 1982 (Cth) s 15F.
16
Defence Force Discipline Act 1982 (Cth) s 27.
17
18
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 51(vi).
8
legislate for the discipline of the ADF.19 The High Court stated that the reason for this
is ‘to maintain the operational efficiency of the Force and to ensure that the standing
Force, as an organized entity, is a buttress of, rather than a threat to, internal
security’.20
The DFDA is the centre piece of the legislative framework concerned with the
disciplinary law applicable to the three arms of the ADF; the Army, the Navy and the
Air Force. When it came into force on 3 July 1985 it was intended to ‘provide a much
needed modernisation and simplification of the law in this area’ by replacing various
United Kingdom and Australian legislation which had covered the individual arms of
the ADF.21 The Defence Force Discipline Rules 1985 (Cth) (DFDR) outline how
hearings under the DFDA are to be administered and the responsibilities of those
presiding over such proceedings. The DFDR are made by the Judge Advocate
General (JAG) under s 149 of the DFDA. The Defence Law Manual produced by the
Department of Defence was developed to provide its personnel with guidance on the
law relating to service offences.22
The DFDA provides for three types of service offences. First, there are uniquely
military offences, such as insubordinate conduct and disobeying a lawful command.
Secondly, there are offences which are similar to criminal offences committed by
civilians, such as assault and falsification of documents. Thirdly, there are civilian
criminal offences found in the Criminal Code 1995 (Cth) and the Criminal Code 2002
(ACT) which are imported into the DFDA, such as serious sexual assault and fraud.
19
Re Tyler; Ex Parte Foley (1994) 181 CLR 18, 30 (Brennan and Toohey, JJ).
20
Re Nolan; Ex parte Young (1991) 172 CLR 460, 482.
21
Commonwealth, Second Reading, Defence Force Discipline Bill 1982 (Cth) 2083.
22
Department of Defence, Defence Force Law Manual, ADFP 201 vol 1, 1.14.
9
These offences are known as the ‘Territory offences’.23 The consent of the
Commonwealth Director of Public Prosecutions must be obtained to institute
proceedings under the DFDA for certain Territory offences including; treason,
murder, manslaughter and specified sexual offences.24
The DFDA, which provides the mechanism for investigating and prosecuting
disciplinary offences, creates a self-contained criminal justice system which applies in
all military circumstances, including overseas deployments.25 It is the law of
Australian Capital Territory (ACT) which applies to charges heard under the DFDA
regardless of where the offence is committed.26 Chapter 2 of the Criminal Code 2002
(ACT) sets out the general principles of criminal responsibility which apply to all
service offences under the DFDA.27 The burden of proof falls on the prosecution and
the standard of proof is beyond reasonable doubt.28 The defendant bears the onus of
proving any defences, and the standard of proof required is on the balance of
probabilities.29
The DFDA creates service tribunals with the power to try members of the ADF
charged with services offences under the DFDA. These tribunals are Courts Martial
(both general and restricted), DFM and summary authorities. Australian civilian
courts do not have the power to hear charges of service offences.
23
24
Defence Force Discipline Act 1982 (Cth) s 63(1).
25
Gulam, above n 13, 231. Re Colonel Aird; Ex parte Alpert 209 ALR 311.
26
27
28
29
Criminal Code Act 1995 (Cth) s 13.4.
10
The DFDA gives military tribunals the jurisdiction to hear charges committed by all
defence members, which includes both full-time and reserve personnel.30 The DFDA
also gives the tribunals’ limited powers to try civilians in certain circumstances where
they have accompanied the ADF outside Australia or on operations against the enemy,
and consented in writing to the application of the Act.31 Civilians to whom the DFDA
applies are known as defence civilians.32
IV SUMMARY PROCEDURES
In 1823, Sir William Blackstone described summary proceedings as hearings where
an accused may be convicted of an offence ‘without any formal process or jury, at the
discretion of the judge or judges appointed by act of parliament, or common law.’33
The summary procedures of England were applied in the Colony of New South
Wales.34 These proceedings were the subordinate criminal court in which a bench of
justices of the peace would sit as magistrates to hear minor criminal and
administrative matters.35
In the context of contemporary Australian military discipline, the word ‘summary’ is
used to describe all proceedings under the DFDA, other than trial by Courts Martial or
DFM.36 Summary proceedings are heard by summary authorities. These authorities
are either subordinate summary authorities, commanding officers or superior
30
See Defence Force Discipline Act 1982 (Cth) s 3(1) for definition of ‘defence member’.
31
32
Defence Force Discipline Act 1982 (Cth) s 3(1) for definition of ‘defence civilian’.
33
W Blackstone, Commentaries on the Laws of England, Book the First (1823) 44.
34
G D Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788-1900
(2002) 41.
35
Ibid.
36
11
summary authorities. A Discipline Officer Scheme also exists to deal with minor
disciplinary offences.37
A Summary Authorities
Summary authorities have the power to try charges, direct that charges not proceed or
refer charges to a convening authority to consider whether the trial should be heard
before a Courts Martial or the DFM. The legislation specifically covering summary
proceedings is found in s 130 of the DFDA and Part IV of the DFDR. Rule 22 of the
DFDR outlines the responsibilities of summary authorities to ‘duly administer justice
according to law without fear or favour, affection or ill-will’ and to ensure that an
accused does not suffer any undue disadvantage by reason of their ignorance, position
or incapacity to present their case.38
It is the Commanding Officer (CO) who is at the centre of the administration of
service discipline under the DFDA.39 The CO has the jurisdiction under s 107 of the
DFDA to deal with all service offences. All charges brought under the DFDA must at
first instance be dealt with by either a summary authority or a CO at a hearing.
Dealing with a charge means making a decision;
• to try the charge where it is within a CO or summary authority’s jurisdiction;
• direct that a charge not be proceeded with on the grounds that there is
insufficient evidence; or
37
Defence Force Discipline Act 1982 (Cth) s 169C(a).
38
Defence Force Discipline Rules 1985 (Cth) r 22.
39
effectiveness of Australia’s military justice system, 2005, xxxviii.
12
• refer the charge to the appropriate authority to be heard, including by another
CO.40
While officers of the Defence Legal Service provide advice on whether a disciplinary
investigation has produced sufficient evidence for charges to be laid, it is the COs
decision whether or not to proceed to charge personnel.41 A CO has the jurisdiction to
try a charge if the accused is; an officer less than two ranks their junior or below the
rank of flight lieutenant (or equivalent), or a defence civilian, unless the charge relates
to a prescribed offence.42 Prescribed offences include treason, rape, murder,
manslaughter and bigamy as well as any ancillary offences to those offences.43 Other
prescribed offences are specified in the Defence Force Discipline Regulations 1985
(Cth) such as endangering morale, or reckless or negligent hazarding of a ship.44 It
can be seen from the functions of the CO that they are involved in investigation,
prosecution and judicial decision making.
A subordinate summary authority is appointed by a CO in a written instrument which
specifies the offences with which subordinate summary authority may deal.45
Subordinate summary authorities have the jurisdiction to try an offence (other than a
prescribed offence) allegedly committed by a member who is of or below the rank of
leading seaman, corporal or an officer cadet.46
A superior summary authority may only deal with a charge that has been referred to it
by a CO or a convening authority. A superior summary authority has jurisdiction to
40
41
42
43
44
Defence Force Discipline Regulations 1985 (Cth) reg 44.
45
Defence Force Discipline Act 1982 (Cth) ss 105(2), 108; see also Form 45.
46
13
try a charge in respect of a service offence which is not a prescribed offence where the
accused is; an officer two or more ranks their junior but not higher in rank than
squadron leader (or equivalent), a warrant officer, or a defence civilian.47 An officer
may only exercise the powers of a superior summary authority if they have been duly
appointed by the Chief of the Defence Force or a Service Chief.48
B The Discipline Officer Scheme
The Discipline Officer Scheme is an infringement notice scheme which applies to
certain offences under the DFDA. An infringement notice scheme is a means of
diverting offenders charged with minor offences away from the ordinary court system.
It is also a way of reducing cost because there is no hearing, and fines paid go towards
enforcement costs. Compliance by offenders is encouraged because the negative
costs of prosecution and conviction in a court outweigh the relatively minor fine.49
The Australian Law Reform Commission (ALRC) outlined the appeal of infringement
notice schemes for offenders in that
‘it is generally quick, easy and inexpensive to pay the penalty without
question. Not paying the penalty and contesting the offence is made less
attractive by the prospect of a heavier sanction if a court determines the
matter, in addition to the cost and inconvenience of the proceedings
themselves’.50
Yet the advantages for the offender come at the cost of due process. As the ALRC
pointed out, ‘infringement notice schemes may be seen as an attempt to convince
people to voluntarily forego the procedural protections of the criminal process in the
interests of allowing the state to collect fines more effectively.’51

47
48
49
S Bronitt and B McSherry, Principles of Criminal Law (2nd ed, 2005), 44. See R G Fox, Criminal
Justice on the Spot: Infringement Penalties in Victoria, (1995).
50
Australian Law Reform Commission, 1 ALRC Discussion Paper 65, 396.
51
Australian Law Reform Commission, 1 ALRC Discussion Paper 65, 400.
14
For an offence to be dealt with by a Discipline Officer under the scheme, a member
must elect to have the matter handled in this way and admit to the infringement.52 A
disciplinary infringement is an act or omission that constitutes an offence against
specified provisions of the DFDA.53 The specified offences are:
• absence from duty;54
• disobedience of a lawful command;55
• failure to comply with a general order;56
• being asleep, drunk, or in other prescribed conditions, while on guard duty or
watch;57
• negligent performance of duty;58
• prejudicial behaviour;59 and
• absence without leave for less than three hours.60
Disciplinary officers may issue infringement notices to defence members where they
have reasonable grounds for believing a disciplinary infringement has been
committed.61 The Disciplinary Officer may decide not to impose any penalty if they
consider the infringement trivial.62 If they believe that the disciplinary infringement is
too serious they may decline to deal with it.63 A defence member is not entitled to
representation before a Disciplinary Officer, although they may call witnesses and
52
Defence Force Discipline Act 1982 (Cth) s 169C(a) and s 169D(2)(b)(1).
53
Defence Force Discipline Act 1982 (Cth) s 169A.
54
55
56
57
58
59
60
61
Defence Force Discipline Act 1982 (Cth) s 169D(1).
62
Defence Force Discipline Act 1982 (Cth) s 169F(2).
63
15
present evidence relevant to the penalty determination.64 The punishments Discipline
Officers can order are: a fine of one day’s pay; restriction of privileges for two days;
cancellation of leave for three days; extra duties for three days; extra drill for no more
than two 30 minute sessions a day for three days; and a reprimand.65 A CO may
appoint officers or warrant officers (former non-commissioned officers) in writing to
be discipline officers.66
The use of the Discipline Officer Scheme is favoured by the Department of Defence
because it allows for ‘swift justice, maintenance of good order and minimal
distraction to normal operations.’67 There has been a substantial increase in the
number of infringement notices issued by Discipline Officers from 1609 in 1998 to
3196 in 2002.68 While the desire for swift justice and even the cost effectiveness are
reasons why Defence would support the increased use of an infringement notice
scheme, the almost doubling of this form of discretionary scheme during a five year
period could also be a result of pressure from within the system on members to take
the lesser punishment on offer under the Discipline Officer Scheme.69
64
Defence Force Discipline Act 1982 (Cth) s 169G(2), (3).
65
66
Defence Force Discipline Act 1982 (Cth) s 169D.
67
68
Cosgrove, above n 3, 101, Annex D.
69
16
V THE OPERATION OF SUMMARY AUTHORITY PROCEEDINGS
Summary proceedings are conducted like a civilian criminal trial. The accused is
asked whether they plead guilty or not guilty.70 If they refuse to enter a plea or it is
unintelligible the summary authority must enter a plea of not guilty.71 If they plead
guilty and the authority is satisfied that the effect of the plea is understood then the
accused is convicted.72 If they plead not guilty, the prosecutor outlines the facts of the
case.73 If, after hearing the evidence, the summary authority forms the opinion that
there is insufficient evidence to support the charge, it is dismissed.74 If the
proceedings continue, the accused is found either guilty or not guilty. If the accused
is found guilty, the authority then hears evidence relevant to sentencing before
imposing a sentence under Pt IV of the DFDA. When sentencing, the accused’s
record is consulted, character evidence and matters in mitigation are heard.75
Summary proceedings under the DFDA are conducted with ceremonial aspects. This
includes the removal of headdress after the charge has been read and the saluting of
the Authority.76 The ceremonial aspects of proceedings may work to undermine the
confidence of the accused. The Defence Law Manual acknowledges that the
ceremonial aspects of the proceedings ‘may put the accused at a psychological
disadvantage’ and suggest that in some cases the ceremonial aspects should be left
70
Defence Force Discipline Act 1982 (Cth) s 130(1)(a).
71
72
Defence Force Discipline Act 1982 (Cth) s 130(1)(a).
73
Defence Force Discipline Rules 1985 (Cth) r 23(4)(d).
74
Defence Force Discipline Act 1982 (Cth) s 130(1)(c).
75
Defence Force Discipline Rules 1985 (Cth) r 50(2).
76
Department of Defence, Defence Force Law Manual, ADFP 201 vol 1, 7.58 and Annexure C to
Chapter 7.
17
out.77 For example, where there is a large amount of evidence, the accused should
remain seated rather than stand throughout the proceedings.78 This is left to the
discretion of the summary authority hearing the proceeding. The authority has an
obligation ‘to ensure an accused does not suffer any undue disadvantage in
consequence of his position’.79 However, there is a possibility that ceremonial aspects
may not be recognised by particular authorities as causing ‘undue disadvantage’.80
There is also a danger that summary proceedings themselves may become a form of
punishment through status degradation.81
Decisions made by summary authorities under the DFDA are subject to automatic
internal review, and the outcome of this process can be petitioned against for further
review through the tiered hierarchy of the ADF. However, decisions are not
appealable. The Inspector-General of the Australian Defence Force also has the
independent authority to review disciplinary processes, and has done so when
approached by service personnel.82 There is no provision in the DFDA for review by
the Commonwealth Administrative Appeals Tribunal and decisions under the Act are
excluded from judicial review under the Administrative Decisions (Judicial Review)
Act 1977 (Cth).83
77
Ibid 7.60.
78
Ibid 7.60.
79
Defence Force Discipline Rules 1985 (Cth), r 22.
80
Defence Force Discipline Rules 1985 (Cth), r 22.
81
See M M Feeley, The Process is the Punishment: Handling Cases in a Lower Criminal Court
(1979).
82
As demonstrated by the Special Air Serviceman wrongful alleged to have committed misconduct in
East Timor. Cosgrove, above n 3, 79.
83
Administrative Decisions (Judicial Review) Act 1977 (Cth), Sch 1(O). M Groves, ‘Case Note The
use of Criminal Law Principles in Military Discipline Chief of Staff v Stuart (1995) 133 ALR 513’
(1997) 23(2) Monash Law Review 456, 460.
18
At all summary hearings, the accused is entitled to ‘representation’ or they may
present their own case.84 Representation before a summary authority is by a fellow
member of the ADF. The accused may request the services of a specific member and,
if available, they must be permitted to defend the accused.85 The representing
member is known as the defending officer.86 There is no right to legal representation,
and a legal officer will not be allowed to defend an accused unless leave is grant by
the CO or superior summary authority.87 According to Defence guidelines, leave is
only to be granted in ‘exceptional cases, where the interests of justice require it.’88
The duties of a defending officer include calling character witnesses, preparing a plea
of mitigation and cross-examining prosecution witnesses where appropriate.89
A prosecutor is in attendance at all summary hearings to present evidence in support
of the charge.90 A pool of prosecutors from a variety of ranks is selected by the CO or
superior summary authority on taking up their appointment.91 Any officer, warrant
officer or senior non-commissioned officer from this pool may be appointed as
prosecutor for a particular case.92 The selection of a prosecutor for a hearing is the
duty of the member charging the accused.93 Prosecutors question the prosecution
witnesses and cross-examine defence witnesses to provide evidence to support the
charge.94
84
Defence Force Discipline Rules 1985 (Cth) rr 23(2), 24.
85
86
Defence Force Discipline Rules 1985 (Cth) r 24.
87
Defence Force Discipline Rules 1985 (Cth) r 24(2A).
88
89
Ibid 7.48-7.49.
90
Ibid 7.50.
91
Ibid 7.51.
92
Ibid 7.52.
93
Ibid 7.53.
94
Ibid 7.56.
19
VI SUMMARY PROCEEDINGS: DUE PROCESS?
Due process demands that the punishment of a person or the deprivation of their
liberty or property should only occur in accordance with proper legal process.95 The
DFDA sets up a legal process to conduct summary proceedings which would appear
to impart due process. Rule 22 of the DFDR, which outlines the responsibilities
summary authorities, embodies a procedural version of due process.96 An example of
this procedural version of due process is the ability of a defendant to apply to have
their hearing reviewed. However, because these reviews are conducted within the
Chain of Command reviewers may not be sufficiently independent. As a result the
reviews could function to simply reinforce the disciplinary system.
McBarnet has stated that crime control is what happens while due process is what
should happen.97 For her due process in accordance with the law allows the rhetoric
of legality and justice to be ignored in many cases: ‘if we bring due process down
from the dizzy heights of abstraction and subject it to empirical scrutiny, the
conclusion must be that due process is for crime control’.98 McBarnet’s thesis has
been interpreted as claiming that the process influences the substance, and that the
effect of this influence is to assist crime control.99 For example, while legal
representation is theoretically available it is functionally limited. While a defendant
or their defending officer under the DFDA is entitled to cross examine witnesses, they
may lack the skills or confidence to do so and therefore decline the opportunity.
95
P Parkinson, Tradition and Change in Australian Law (2nd ed, 2000) 98.
96
See page 11 above.
97
McBarnet, above n 5, 4-5.
98
McBarnet, above n 5, 156 emphases in the original.
99
H Mares, ‘Balancing public interest and a fair trial in police informer privilege: A Critical
Australian perspective’ (2002) 6(94) The International Journal of Evidence & Proof 116.
20
Having been offered the opportunity to cross-examine, they have been afforded a fair
trial according to law, but it may still have been unfair in substance.
A core principle at the heart of due process is the ‘fair trial’.100 The common law
recognises the right to a fair trial. This right was first recognised in Jago v District
Court (NSW) as ‘a right to a trial as fair as the courts can make it.’101 In Dietrich v
The Queen the High Court acknowledged the common law right to a fair trial,
although this is dependent on the gravity of the offence.102 These decisions have
meant that at common law procedural fairness is a legally enforceable right that
obligates courts to stay legal proceedings that are unfair.103
When due process is applied uniformly some defendants will not get a fair trial even
though it has been conducted according to law. Gauldron J noted that
[t]he expression ‘fair trial according to law’ is not a tautology. In most cases a trial
is fair if conducted according to law, and unfair if not…But the law recognises that
sometimes…a trial may be unfair even though conducted strictly in accordance
with law.104
For example, an accused is given the opportunity to plead not guilty under the DFDA
but pressure from a form of charge negotiation may induce them to plead guilty.
Charge negotiation or plea bargaining is a procedure where an accused admits guilt in
exchange for some concession by the prosecutor, or perhaps the judiciary.105 The
rationale behind charge negotiation is that it ensures criminal conduct is punished and
reduces costs.106 A form of charge negation appears to exist under the DFDA.
100
Bronitt and McSherry, above n 49, 39.
101
(1989) 168 CLR 23, 49 (Brennan, J).
102
(1992) 177 CLR 292.
103
104
Dietrich v The Queen (1992) 177 CLR 292, 362 (Gauldron, J).
105
J B Bishop, Criminal Procedure (2nd ed, 1998), 467.
106
N Cowdery, ‘Negotiation with the Director of Public Prosecutions Especially under the Samuels
Report’ (2003) Office of the Director of Public Prosecutions, Young Lawyers One-Day Criminal Law
Seminar, 15 March 2003, http://www.odpp.nsw.gov.au/speechesspeeches.html at 26 October 2005, 5.
21
Defending officers are instructed ‘in a hopeless case’ to ‘advise the accused to plead
guilty, at least to some charges, in the hope that the prosecutor may decide to abandon
or amend one or more of the charges’.107 Charge negotiating is a legitimate practice;
it promotes efficiency by increasing the proportion of guilty pleas,108 though there is a
danger that some innocent people will be induced to plead guilty.109 A process which
places undue or improper pressure on defendants not to contest their guilty is unfair.
Another departure from due process standards is the potential inapplicability of the
double jeopardy principle under the DFDA. Double jeopardy prohibits trying an
accused more than once for the same offence.110 It is a common law principle
protected by international law. Academics have questioned whether double jeopardy
applies to charges under the DFDA.111 When a defence member has been acquitted or
convicted by a civilian court in Australia or overseas, they cannot be tried by a
military tribunal for a service offence arising out of the same act or omission.112 Yet
where a member has been tried for a service offence, they could potentially be
charged again on the same facts under civilian law.113 Brennan and Toohey JJ
recognised this possibility when they said that ‘[a] defence member is and must
remain liable to the ordinary criminal law; he does not acquire immunity merely
because he has been dealt with by a tribunal other than the ordinary courts.’114
107
108
Cowdery, above n 106, 3.
109
P Darbyshire, The Mischief of Plea Bargaining and Sentencing Rewards [2000] Criminal Law
Review 895, 902.
110
C Corns, ‘Retrial of acquitted persons: Time for reform of the double jeopardy rule?’ (2003) 27
Criminal Law Journal 80, 80.
111
R A Brown, ‘Military Justice in Australia: W(h)ither Away? The Effects of Re Tracey; Ex parte
Ryan’ (1989) 13 Criminal law Journal 263, 287. A D Mitchel and T Voon, ‘Defence of the
indefensible? Reassessing the constitutional validity of military service tribunals in Australia’ (1999)
27(3) Federal Law Review 499, 503.
112
113
See Re Nolan; Ex parte Young (1991) 172 CLR 460, 493-494, 499.
114
Re Tracey; Ex parte Ryan (1989) 63 ALJR 250, 272.
22
The High Court may no longer agree with the legality of trying a member twice for an
offence. In R v Carroll the High Court unanimously confirmed that double jeopardy
is a fundamental common law rule.115 If double jeopardy does not apply to the DFDA
then this is a departure from due process because there is no finality to the law. This
also appears to violate Australia’s international obligations regarding criminal
offences under Art 14(7) of the ICCPR which declares that: ‘No person shall be liable
to be tried or punished for an offence for which he has already been finally convicted
in accordance with the law and penal procedure of each country.’ In obiter, Kirby J
has stated that there is a danger of double jeopardy in the application of the DFDA
which could conflict with Art 14(7).116
A reason why fair trials are important to legal systems is that people’s judgements
about procedural fairness affect their willingness to accept particular legal decisions
and generally follow laws. Tom Tyler concluded from his psychological research that
‘people care about the decision-making process. They consider evidence about
representation, neutrality, bias, honesty, quality of decision, and consistency.’117 The
final outcome of the decision making process is also linked to perceptions of
procedural justice. Tyler found that people expected fair outcomes from a fair
procedure while ‘a procedure which consistently produces unfair outcomes will be
viewed as unfair itself.’118 Tyler found that people who experience what they
considered unfair procedures had a reduced view of the legitimacy of the authority
involved.119
115
(2002) 213 CLR 635.
116
Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311, 343.
117
Tom Tyler, Why People Obey the Law (1990) 175.
118
Ibid 164.
119
Ibid 172.
23
IV CONCLUSION
General Cosgrove concluded his submission to the Senate inquiry into military justice
by saying that the ‘military justice system is robust, effective and highly accountable
to the public.’120 Yet this chapter has outlined certain aspects of summary
proceedings under the DFDA which, while they might be effective procedurally, may
be unfair in certain cases and therefore lack legitimacy for military personnel.
The effectiveness of the summary procedures within the military justice system can be
questioned on the grounds that they are conducted as closed courts and generally
operate without lawyers, despite being an adversarial system based on civilian
criminal law. These factors were considered by McBarnet in her ideology of triviality
in the lower courts. The following chapters consider McBarnet’s concept of triviality,
its possible application to summary proceedings conducted under the DFDA, and the
justifications use for the reduction in due process at the lower levels of justice.
120
24
CHAPTER II SUMMARY PROCEEDINGS: DEVIATIONS
FROM FAIR TRIAL PRINCIPALS
I INTRODUCTION
While the Senate inquiry into the effectiveness of the military justice system
acknowledged the importance of summary proceedings, less than two pages of the
300 page report dealt specifically with summary authorities.121 This is despite the fact
that 99 per cent of cases heard under the military justice system are dealt with
summarily.122 This would appear to demonstrate that summary proceedings are
considered to be trivial even by those who are independently reviewing the military
justice system. Other reasons why summary proceedings are considered trivial could
be because the offences and penalties involved are minor, the hearings are closed and
lawyers are generally absent.123
This chapter considers whether McBarnet’s ideology of triviality in the lower courts
affects summary proceedings conducted under the DFDA and if this is justified. The
perceptions of triviality surrounding summary proceedings may also provide a reason
for the absence of the fair trial principles under the DFDA.
121
effectiveness of Australia’s military justice system, 2005, 96.
122
Cosgrove, above n 3 101, Annex D.
123
McBarnet, above n 5, 138.
25
II SUMMARY PROCEEDINGS: AN ‘EXCEPTIONAL’ PROCEEDING
According to McBarnet, there are ‘two tiers of justice’ within the criminal justice
system; an ‘ideology of justice’ in the higher courts and an ‘ideology of triviality’ in
the lower courts.124 She believes that this ‘image of triviality that pervades the lowest
ranks of criminal justice’ has the consequence of the removal of necessary aspects of
due process.125 McBarnet concluded from her research that: ‘The lower are courts are
not there to stage grand ideological scenarios of proof by adversarial advocacy, they
are simply in the business of summary justice’.126 Summary justice for McBarnet ‘is
characterised precisely by its lack of many of the attributes of the ideology of law,
legality, and a fair trial.’127
Summary proceedings are the most common means of formally disciplining ADF
members. According to figures complied by the Defence Legal Service, in the five
years between 1998 and 2002 there were 26,887 disciplinary matters.128 Summary
procedures dealt with 26,630 of these cases, or 99 per cent, while Courts Martial and
DFM combined heard only 257 cases, or one per cent.129 These figures are similar to
the statistics for civilian criminal hearings. In 2002-2003, 96 per cent of criminal
cases were initiated in the Magistrates Courts, three per cent in the intermediate courts
and less than one per cent in the Supreme Courts.130 The figures for the ADF show
that summary proceedings are most likely to affect defence personnel and their
124
McBarnet, above n 5, Ch 7.
125
126
127
128
129
130
Australian Institute of Criminology, Australian Crime Fact and Figures 2004 (2004) 80.
26
families. This demonstrates the importance of ensuring that summary proceedings are
not inherently unjust, and shows how numerically such hearings are far from trivial.
In the last ten years there have been eight major inquiries and reviews of the military
justice system yet none have focussed on summary proceedings in detail. The most
recent inquiry by the Senate did note that it was ‘important to address the issues
arising in the summary discipline context.’131 The reason given for this was that
‘inadequate summary processes have the capacity to affect a higher proportion of
Service personnel than defective Courts Martial and DFM trials, and by failing to
appear to provide just outcomes, can serve to undermine the very system they mean to
strengthen.’132
The Senate Committee considered that all service personnel should have access to
impartial and independent tribunals at all levels of the military justice system.133 The
Senate concluded that reform was needed to impart greater independence and
impartiality into summary proceedings.134 The Judge Advocate General (JAG), Major
General Justice Roberts-Smith, stated that ‘it is not possible to imbue’ summary
proceedings conducted by COs and subordinate summary authorities ‘with guarantees
of independence appropriate to higher level tribunals.’135 The JAG therefore
recommended that an accused be given the right to elect a trial before a DFM or
Courts Martial rather than before a summary authority.136 The Senate made two
131
132
Ibid.
133
Ibid 103.
134
Ibid xxii.
135
effectiveness of Australia’s military justice system, 2005 Major General Justice Roberts-Smith, Judge
Advocate General, Submission P27, 6.
136
Ibid.
27
recommendations for reforming summary proceedings. The first recommendation
was the introduction of a right for persons accused of summary offence to elect trial
by Courts Martial before the proposed Australian Military Court (AMC).137 The
second recommendation was the introduction of a right of appeal from summary
authorities to the AMC.138 The idea behind these recommendations is that these
avenues would ensure that a determination of guilt is made by an independent and
impartial tribunal, and, unlike summary proceedings, the AMC will be outside the
Chain of Command.139 The Government responded to the Senate inquiry by
proposing that the process of review be discontinued in favour of an automatic right
of appeal to the AMC.140 The Government also agreed in principle with the concept
of a right to elect trial before the AMC for summary offences.141 The Government has
indicated that it will go beyond the Senate recommendations and develop summary
procedures with simplified rules of evidence.142
The general perception of the triviality of military justice at the summary level is also
demonstrated by the lack of academic writing on the subject. Little is written about
the Australian military justice system by legal scholars generally and what material
there is tends to focus on Courts Martial and DFM hearings, particularly regarding
their constitutional validity.143 It would appear that there has been little academic
interest taken in service discipline at the summary level. One reason for this may be
137
effectiveness of Australia’s military justice system, 2005, 103, Recommendation 22.
138
Ibid, Recommendation 23.
139
Ibid.
140
Department of Defence, Government Response to the Senate Foreign Affair, Defence and Trade
References Committee ‘Report on The Effectiveness of Australia’s Military Justice System’ (October
2005), 4.
141
Ibid 11.
142
Commonwealth, Parliamentary Debates, Senate, 5 October 2005, 81 (Senator Robert Hill, Minister
for Defence).
143
For example see Mitchel and Voon, above n 114.
28
because such hearings and their transcripts are not accessible to the public. Other
reasons for the lack of academic writing on summary proceedings may be because of
perceptions that the offences and penalties are trivial, and that the crimes dealt with in
summary proceedings do not involve significant legal issues. The perception
regarding legal issues is considered later in a case study.
II SUMMARY PROCEEDINGS: EQUALITY BEFORE THE LAW
B Trivial Offences?
McBarnet stated that one justification used for the reduction of due process in the
lower courts was because ‘both the offences and penalties are too trivial’.144 The
Senate’s report into the effectiveness of the military system demonstrated how
summary proceedings are considered trivial because of the offences and penalties
involved. The report highlighted this when it described summary authorities as
having ‘limited powers of punishment’ which ‘are generally used to try less serious
offences.’145 Yet when the offences available to be heard by summary authorities are
considered, they are found in the main to be the same as those tried by Courts Martial
and DFM.
Summary authorities can hear all service offences under the DFDA except prescribed
offences and offences ancillary to prescribed offences. Therefore, summary
authorities are able to try serious offences such as assaulting a superior officer or
subordinate,146 falsifying service documents,147 and dealing in or the possession of
144
145
146
Defence Force Discipline Act 1982 (Cth) ss 25, 34.
147
29
narcotic goods. 148 These offences all carry maximum sentences of two or more years
imprisonment, which demonstrates that they are not trivial.
The type of defence member accused of committing a service offence has a bearing
on whether or not the DFDA is applicable. This is an example of the inequality found
in the application of the DFDA. A defence member is defined by the DFDA as either:
a member of the Permanent Navy, the Regular Army or the Permanent Air force; or a
member of the Reserves who is undertaking full-time service or is on duty or in
uniform.149 This means that a full-time member of the defence force is subject to the
DFDA at all times including at home and on holidays, while a reservist is only subject
to the Act when on duty or in uniform. This appears to violate the principle of
equality before the law, as there is no apparent reason for the difference between full-
time and part-time employees.
Equality before the law is the principle that every person is subject to the same
laws.150 This principle is fundamental to the rule of law, which gives legitimacy to a
legal system. Equality before the law is required by Article 14(1) of the ICCPR
which states that: ‘All persons shall be equal before the courts and tribunals’. There is
arguably a public international law obligation that the DFDA comply with this law.
In light of the international requirements of equality it could be argued that members
are not equal before the law under the DFDA because the punishment which can be
imposed on them by summary authorities depends on the service they belong to and
the rank they wear.
148
149
150
Parkinson, above n 95, 97.
30
B Trivial Penalties?
The penalties that may be imposed by a summary authority vary according to the
authority hearing the charge and the status of the convicted person.151 The rank and
service of the convicted person affects the punishments that they may receive. The
punishments available to summary authorities for Navy personnel are higher than
those available for equivalent Army and Air Force personnel. For example, a CO can
impose a fine not exceeding a convicted person’s pay for 28 days for Navy member
below non-commissioned rank, while for the equivalent Army or Air Force member
the maximum fine is seven days pay.152 This inequality was justified by the
legislature in 1982 on the grounds of the difference in the Navy organisation, the
command structure on Navy ships and establishments, and the nature of and
responsibilities of COs of ships.153 This means that there is not uniformity across the
services with regard to the penalties imposed by summary authorities, which would
appear to violate the principle of equality before the law. Although there may
historically have been reasons for this based on practicalities, today there would seem
to be no obvious justification for this difference.
In general, the lower a member’s rank in any of the services the harsher the penalties.
For example, detention is not a penalty available to a CO for a convicted defence
member who is an officer or non-commission officer but a member below a non-
commissioned rank can be detained for period of between seven and 28 days.154 The
length of detention increases to a period of 14 to 42 days where the offence occurred
151
See Defence Force Discipline Act 1982 (Cth) sch 3.
152
Defence Force Discipline Act 1982 (Cth) sch 3, Table B.
153
154
31
while the member was on active service.155 This means that the rank held by an ADF
member affects the penalties that they may receive from a summary authority.
The penalties available to summary authorities, particularly COs, are not trivial when
the length of detention which can be imposed is considered. An example of the
seriousness of penalties available to summary authorities under the DFDA is that
custodial punishments may be imposed for certain non-custodial service offences
when committed while the member was in custody.156 These offences are:
• absence from duty;157
• assaulting a superior officer;158
• insubordinate conduct;159
• disobeying a lawful command;160
• failing to comply with a general order;161
• assault, insulting or provocative words;162
• destroying or damaging service property;163
• escaping from custody;164 and
• prejudicial conduct.165
A CO may impose punishments on a person convicted of custodial offences or certain
non-custodial offences (to which s 68C(1) applies) of; segregated confinement or
confinement to a cell for a period not exceeding ten days, extra drill for a period not
155
156
Defence Force Discipline Act 1982 (Cth) s 68C(1).
157
158
159
160
161
162
163
164
165
32
exceeding six days and restriction of custodial privileges for a period not exceeding
14 days.166
According to McBarnet, the ideology of democratic justice required due process of
law before permitting inferences with a person’s liberty.167 She found that a
justification used for defendants not needing due process as much in the lower courts
was that because of the limited penalties available to magistrates’ they could interfere
with peoples’ liberties less than the higher courts.168 The penalties imposed by
summary authorities can interfere with a defence member’s liberties and therefore
should not be considered trivial. Other penalties available to summary authorities,
such as a reduction in rank and forfeiture of seniority by a CO, may also have a longer
term impact on a member’s career and therefore should also not be considered
trivial.169 It is worth noting again that there is no right of appeal against penalties
imposed by summary authorities under the DFDA. The principal avenue available to
a convicted member is to seek an internal review which occurs within the Chain of
Command.
While the offences and penalties available in lower courts may seem trivial from the
outside, they are far from trivial from the accused’s perspective.170 The Senate report
into the effectiveness of Australia’s military justice system found that the
inadequacies of the disciplinary process had significant consequences for the mental
health and well-being of service members, their families and friends.171 The Senate
166
Defence Force Discipline Act 1982 (Cth) sch 3A, Table A.
167
168
169
170
McBarnet, above n 5, 146
171
effectiveness of Australia’s military justice system, 2005, xxii.
33
heard evidence of how the stresses placed on individuals under investigation in many
cases appeared to have had longer term effects, including loss of confidence, loss of
employment, suicidal thoughts, attempted and actual suicide.172 The Senate stated that
‘these effects are unacceptable.’173
A consideration of the offences available to be heard by summary authorities and the
penalties they may impose on those found guilty shows that in the main neither
offences nor penalties are trivial. The penalties available to summary authorities can
affect a member’s liberties, particularly when the penalty is detention for over a
month. The effect of summary authority punishments may also have a far from trivial
impact on a member’s career, given that convictions are recorded on personnel files
and some penalties involve a reduction in rank or forfeiture of seniority.
IV SUMMARY PROCEEDINGS: RIGHT TO A PUBLIC HEARING
Summary proceedings under the DFDA are not conducted in open court. Therefore, a
summary authority is not obliged to allow access to a hearing to anyone not required
to be present.174 This means that such hearings are not subject to public review and
comment. According to McBarnet another requisite of due process is that the
administration of justice should be public, but the consideration of summary justice as
trivial results in the press and general public not bothering to monitor lower court
proceedings.175 In the context of summary proceedings under the military justice
172
Ibid.
173
Ibid.
174
175
34
system, the press and public cannot attend a hearing. The closed nature of the justice
being delivered creates a further possibility of unfairness.176
Certain service offences under the DFDA may be subject to a legal requirement to be
heard in an open court, despite this not being provided for under the DFDA.
A general requirement that hearings be public is found under international law.
Article 14(1) of the ICCPR to which Australia is a party provides that:
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by
a competent, independent and impartial tribunal established by law.177
Summary proceedings under the DFDA are not open to the public and it is
questionable whether they are decided by a competent, independent and impartial
decision maker given that they are conducted by a fellow member of the ADF, who is
likely to be the accused’s commander. These commanders dealing with and hearing
cases are not lawyers, although they do receive instruction on the military justice
system as part of their pre-command education.178
The Joint Standing Committee on Foreign Affairs, Defence and Trade in its report,
Military Justice Procedures in the Australian Defence Force, decided that, although
there may not be a requirement under domestic law to comply with Article 14(1) of
the ICCPR, there is an obligation under public international law to do so.179 Kirby J
has pointed out that this Article refers to ‘any criminal charge’ and therefore charges
which are ‘of a military-disciplinary character’ could be distinguished as not being
176
Historically, summary proceedings were closed until the introduction of the Duties of Justices
(Summary Convictions) Act (1848) 11 & 12 Vict, c 43. Section 12 of this Act required summary
proceedings to be heard as open courts. Woods, above n 34, 177.
177
International Covenant on Civil and Political Rights Article 14(1).
178
179
Commonwealth Parliament Joint Standing Committee on Foreign Affairs, Defence and Trade,
Military Justice Procedures in the Australian Defence Force (1999) 118.
35
criminal.180 Under international law if a charge is not classified domestically as
criminal this is not decisive for the application of fair trial guarantees.181 Although if
it were determined that the offences under the DFDA are disciplinary not criminal it
could still be argued that the Territory offences are criminal and such as should be
conducted publicly by a competent, independent and impartial tribunal. Kirby J has
expressed doubt that this is possible while the ADF conduct hearings internally
because ‘[t]he culture of the military is not one in which independent and impartial
resolution of charges comes naturally.’182
Commonwealth Parliament’s ratification of the Optional Protocol of the ICCPR in
1991 means that Australians may challenge Commonwealth, State and Territory laws
that violate human rights protected by the ICCPR.183 An Australian defence member
could potentially challenge the DFDA regarding Territory offences before the
UNHRC on the grounds that the Act violates Art 14(1) of the ICCPR, because
hearings of criminal charges under s 61 are not public. As a result of a successful
challenge, the United Nations Human Rights Committee (UNHRC) may issue a ruling
requiring a Contracting State to remedy any violation including repeal or modification
of existing laws.184
180
Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311, 343 (Kirby, J) emphasis in the original.
181
H Mole and C Harby, The right to a fair trial: A guide to the implementation of Article 6 of the
European Convention on Human Rights (2001) 16.
182
Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311, 346 (Kirby, J).
183
184
36
VII SUMMARY PROCEEDINGS: RIGHT TO LEGAL REPRESENTATION
While the majority of the High Court in Dietrich v The Queen held that there is no
right to legal representation at public expense under the common law, they
acknowledged that an accused facing a serious offence without legal representation
could as a result receive an unfair trial.185 The same laws of evidence and criminal
law apply to summary proceedings under the DFDA and higher court hearings such as
those conducted by the ACT Supreme Court.186 Yet lawyers are not allowed to appear
in summary proceedings under the DFDA unless leave is granted by the CO or
superior summary authority. Interestingly, the CO or superior summary authority
making this decision is likely to be the same person who will go on to hear the case.
According to McBarnet, one justification for reducing the strictures of due process in
the lower courts is the perception that ‘the offences dealt with in the lower courts do
not involve much law or require much legal expertise or advocacy’ and therefore such
matters do not require lawyers.187 Yet McBarnet found the lower courts to be
‘permeated by legalistic and professional consciousness’.188 McBarnet has also
suggested that the openness of the laws defining summary offences also supports an
argument for more legal expertise not less.189 Therefore, it can be argued that the need
for professional lawyers in the lower courts, including summary proceedings under
the DFDA, is just as strong as in the higher courts.
185
(1992) 177 CLR 292.
186
Evidence Act 1995 (Cth).
187
188
189
37
Lawyers play a vital part in the adversarial legal system and their presence usually
reduces the possibility for a trial to become unfair.190 One way that lawyers can
influence a trial outcome is through cross-examination. This form questioning the
other party’s witnesses is used to build up a case and highlighting the weaknesses in
an opponent’s case. Cross-examination has historically been seen as ‘the greatest
legal engine ever invented for the discovery of the truth’.191 According to McBarnet
‘[w]ith no cross-examination there is in a sense no trial and with no professional
lawyer there tends to be no cross-examination’.192 Judicial opinion, in considering
unrepresented litigants in civil cases, is that lawyers assist ‘to prevent destruction
from the traps which our adversary procedure offers to the unwary and untutored.’193
While an accused in a DFDA summary proceeding is allowed to have a fellow
defence member assist with their defence, these members are not legal practitioners,
and they only undertake this role sporadically in addition to their normal duties. A
defendant and their defending officer may not present the story clearly, but a good
lawyer with an eye for legal relevance will be able to turn a defendant’s account into a
case by asking the right questions, raising legal objections to evidence and making
submissions on the law, ‘something that a layman might simply lack the knowledge to
achieve.’194 The general prohibition on defence personnel accused under the DFDA
having legal representation at a summary proceeding demonstrates the inherent
injustice in the military justice system. Article 14(3) of the ICCPR sets out ‘minimum
190
J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary
(1995) 150.
191
J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, vol
5 (3rd ed, 1940) 29.
192
193
Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No CA 146 of
1986, 16 June 1986) 14 (Samuels, JA) cited with approval in Platcher v Joseph [2004] FCAFC 68 (26
March 2004), 28.
194
38
guarantees’ for an accused facing criminal charges which includes: (d)…‘to defend
himself in person or through legal assistance of his own choosing’. Summary
authorities hearing Territory offences would therefore be required by international law
to allow defendants legal representation.
III CONCLUSION
There would appear to be a general perception that summary proceedings under the
DFDA are trivial, as demonstrated by the lack of academic writing on the subject and
the minimal attention given to it by inquiries into the military justice system. The fact
that summary proceedings are held in camera and the transcripts are not publicly
available can be said to have contributed to the perception that such hearings are
trivial. The fact that lawyers are generally not involved in summary proceedings can
be said to demonstrate that those legislating for the DFDA considered such hearings
as trivial, and therefore legal representation of the accused was not required.
According to McBarnet due process is removed from the lower courts as unnecessary
on two grounds: firstly that the offences and penalties are trivial; and secondly that the
issues and processes are such that the law and lawyers are irrelevant.195 The following
chapter challenges the erroneous perception that the law is irrelevant in summary
proceedings through a case study. This case study considers whether the law
surrounding the service offence of ‘prejudicial conduct’ under the DFDA is trivial and
therefore justifies the reduction in the importance of due process at the summary
justice level.
195
39
CHAPTER III PREJUDICIAL CONDUCT: A CASESTUDY OF
THE SERVICE OFFENCE
I INTRODUCTION
The offence of prejudicial conduct, which has been described as ‘unusually wide and
imprecise’, 196 is considered in this chapter as an example of the complexity of the law
handled by summary authorities under the DFDA. Complexity of the law provides
another reason why legal representation is required by accused defence personnel.
Cases concerning prejudicial conduct will also be explored in light of McBarnet’s
thesis on the reduction of due process in the lower courts.
II PREJUDICIAL CONDUCT
Section 60 of the DFDA prescribes the service offence of prejudicial conduct: ‘A
defence member is guilty of an offence if the member engages in conduct that is likely
to prejudice the discipline of, or bring discredit on, the Defence Force.’197 In order for
an accused to be convicted of prejudicial conduct, the required physical elements of
the crime must be met: that the accused was a defence member; that the accused did
(or omitted to do) a specified act; and that the doing of (or omission to do) that act
was likely to prejudice the discipline of (or bring discredit upon) the ADF (or a
specified part of the ADF).198 The prejudicial conduct undertaken by a defence
member may be one act or involve a number of acts.199 A determination of whether
196
Groves, above n 83, 473.
197
198
Department of Defence, Defence Force Law Manual, ADFP 201 volume 1, 4.81.
199
Re Nickols’s Appeal (1966) 9 FLR 120, 124.
40
the act or omission is prejudicial is a question of fact.200 The service offence of
prejudicial conduct is a strict liability offence.201 This means that the prosecution is
only required to prove that the accused committed the physical elements of the crime;
the offence therefore has no fault element. A defence is available if a member can
prove that they had a reasonable excuse for the conduct. When proving this, the
member bears the legal burden of proof on the balance of probabilities.202 This
defence allows the accused’s state of mind and lack of culpability to be considered.
The maximum punishment for a defence member convicted of prejudicial conduct is
imprisonment for three months.203 Prejudicial conduct charges can be heard by all
summary authorities and even Discipline Officers.
The offence of prejudicial conduct has a long history in military justice both in
Australia and overseas. The current provision was derived from the Uniform Code of
Military Justice (US) Article 134, which was enacted in 1956.204 Prejudicial conduct
was also present in the precursor to the DFDA, the Army Act 1881 (UK).205 A very
similar offence of prejudicial conduct remains in the legislation of the United
Kingdom military justice system.206 There are two offences under the Australian
Federal Police (Discipline) Regulations 1979 (Cth) which correspond to prejudicial
conduct under the DFDA, yet none in the Public Service Act (Cth) 1999 or Public
Service Regulations (Cth) 1999.207 Interestingly, the Public Service Code of Conduct
requires behaviour which upholds ‘the integrity and good reputation of the Australian
200
Re Wallace’s Appeal 1970 18 FLR 220, 222-223.
201
202
203
204
Butterworths, Halsbury’s Laws of Australia, (at 18 May 2005) ‘Prejudicial conduct’ [150-858].
The full text of Article 134 is contained in Appendix 1.
205
s 40.
206
Army Act 1955 (UK) s 69, Air Force Act 1955 (UK) s 39 and Naval Discipline Act 1957 (UK) s 39.
207
Australian Federal Police (Discipline) Regulations 1979 (Cth) reg 9(1)(e) and (f). The full text of
the subsections of the regulation are contained in Appendix 2.
41
Public Service’.208 There appear to be no cases on public record which consider
prejudicial conduct by Australian Federal Police appointees. However, a broad
interpretation of prejudicial is likely given the Federal Court’s statements in Allen v
Com. AFP.209 In this case, the court considered the interpretation of the expression
‘disgraceful or improper conduct’ in regard to Australian Federal Police officers.
Neaves J found that there was nothing in the disciplinary regulations under
consideration ‘to warrant giving the expression a limited meaning’.210
III PREJUDICIAL CHARGES IN PRACTICE
Prejudicial conduct is a ‘good order’ offence, a feature of many disciplinary schemes,
which requires members to generally behave themselves.211 The provision is designed
to be used to penalise misbehaviour which deserves punishment, but for which there
is no specific provision under the DFDA.212 This means that it can be used where the
elements of no other charge can be met. The framers of the DFDA intended that
charges should not be laid under s 60 if they could be laid under another section of the
Act.213 To encourage this approach and to restrict the use of prejudicial conduct
charges to minor breaches of discipline a relatively low maximum punishment was
set.214 However, there is no provision in the DFDA which prevents the laying of a
charge under s 60 for behaviour which could be the subject of a charge under another
section.215 This means that a charge of prejudicial conduct can be used where another
208
Australian Public Service Code of Conduct.
209
(1983) 78 FLR 21.
210
Allen v Com. AFP (1983) 78 FLR 21, 25 (Neaves, J).
211
212
Department of Defence, Defence Force Law Manual, 201 volume 1, 4.81.
213
Department of Defence, Defence Force Law Manual, 201 volume 1, 4.81.
214
Butterworth’s, above n 204 and Department of Defence, Defence Force Law Manual, ADFP 201
vol 1, 4.81.
215
42
offence would be more appropriate but harder to prove. The charge of prejudicial
conduct can therefore be used as a general ‘catch-all’ offence. In practice, prejudicial
conduct is also used as an alternative offence for other charges under the DFDA.216
The use of prejudicial conduct as an alternative charge could encourage the practice of
charge bargaining to induce defendants to plead guilty to the first charge.
Prejudicial conduct charges have been used to cover a variety of acts from minor
disciplinary infringements to more serious offences. The Manual of Military Law of
1941 lists the facts that would give rise to charges under the predecessor to s 60
including; acts involving dishonesty, borrowing money from subordinates and
negligently injuring self.217 Actual charges of prejudicial conduct include:
• urinating from a ship;218
• attending a service function in a dishevelled state while intoxicated;219
• rating the posteriors of female recruits;220
• importuning a subordinate female to have sexual intercourse;221
• having a sexual relationship with a female subordinate;222
• storing pornographic images on a Defence computer;223
• using a fellow officer’s mobile phone without consent;224
• the loss of pistols and other service property;225
216
See Cosgrove, above n 3, 78 for an example of such a use of s 60 under the DFDA and Re
Cottingham’s Appeal (1972) 216 ALR 7 for such use under s 40 Army Act 1881 (UK).
217
Manual of Military Law 1941 (Aust ed) 427 cited in Anning v Chief of Naval Staff [1989] DFDAT 5
(11 May 1990) 20.
218
Barry v Chief of Naval Staff [1994] DFDAT 1 (26 August 1994).
219
Barry v Chief of Naval Staff [1994] DFDAT 1 (26 August 1994).
220
Anning v Chief of Naval Staff [1989] DFDAT 5 (11 May 1990).
221
Newboult v Chief of the General Staff [1989] DFAT 3 (11 May 1990).
222
Rogers v Chief of Navy (2002) 169 FLR 431.
223
Mocicka v Chief of Army (2003) 175 FLR 476.
224
Kasprzyck v Chief of Army [2001] ADFAT 5 (10 September 2001).
225
Chief of General Staff v Stuart (1995) 133 ALR 513.
43
• the mistreatment of corpses;226 and
• negligently handling a weapon causing it to discharge killing a fellow
member.227
IV JUDICIAL INTERPRETATION OF PREJUDICIAL CONDUCT
The service offence of prejudicial conduct has been described as corresponding to a
breach of the peace, although wider and more comprehensive.228 Judicial opinion of
the charge appears to treat the offence as particularly wide in scope and therefore not
precisely definable. There are no publicly available transcripts of trials concerning
prejudicial conduct charges at the summary level, but there have been at least nine
recorded cases heard by the Defence Force Discipline Appeal Tribunal (DFDAT),229
and one by the Federal Court.230 Analysis of these cases highlights the vagueness of
this provision and the need for transcripts to be reported in order for service personnel
to understand what constitutes such behaviour.
The DFDA does not provide a definition of what prejudicial conduct is and the
Defence Law Manual gives little guidance on the interpretation of the charge. This
means that a service member may be unable to determine whether or not their present
or future behaviour may fall within s 60. It has been argued that this imprecision
makes a mockery of the certainty inherent in the criminal law principle of nulla poena
226
227
Re Cottingham’s Appeal (1972) 216 ALR 7, Re Wallace’s Appeal (1970) 18 FLR 220 and Re
Nickols’s Appeal (1966) 9 FLR 120.
228
Lewis, above n 9, 153.
229
This is also includes cases heard by Courts Martial Appeals Tribunal, the pre-DFDA equivalent.
230
Barry v Chief of Naval Staff [1994] DFDAT 1 (26 August 1994), Anning v Chief of Naval Staff
[1989] DFDAT 5 (11 May 1990), Newboult v Chief of the General Staff [1989] DFAT 3 (11 May
1990), Rogers v Chief of Navy (2002) 169 FLR 431, Mocicka v Chief of Army (2003) 175 FLR 476,
Kasprzyck v Chief of Army [2001] ADFAT 5 (10 September 2001), Chief of General Staff v Stuart
(1995) 133 ALR 513.
44
sine lege, that a person should not be punished except in accordance with the law.231
This principle that a person should not liable or punished for conduct that was not
criminal at the time of its commission is a fundamental human right protected by Art
15 of the ICCPR.
It has also been said that such broad language offences are necessary for service
discipline because it allows for conduct considered inappropriate which does not
come under any other provision to be punished.232 While this common law flexibility
allows new types of conduct to be criminalised, it may violate the principle against
retrospectivity. The European Court of Human Rights has held that the development
of the common law would not offend the principle against non-retrospectivity
‘provided that the resultant development is consistent with the essence of the offence
and could reasonably be foreseen.’233 Judicial interpretation of prejudicial conduct
may or may not comply with this test, depending on the conduct charged under the
section. Yet, the fact still remains that the precise scope of broad language provisions
such as s 60 are difficult to define.
The courts have avoided defining what conduct is likely to be prejudicial to the
discipline of, or bring discredit on, the ADF. Under the precursor to s 60 the DFDAT
outlined its intention not to define prejudicial behaviour when the justices expressly
took ‘care to avoid giving any treatise on the meaning’ of the words the offence.234
The DFDAT has continued to demonstrate this desire not to define prejudicial
conduct saying that: ‘Behaviour likely to prejudice the discipline of the Defence Force
231
232
233
CR v United Kingdom and SW v United Kingdom (1996) 21 EHRR 363.
234
45
may take many forms, and we are unwilling to essay any exhaustive definition of the
words employed in s.60.’235
The DFDAT has given examples of what may constitute prejudicial conduct.
Generally prejudicial behaviour has been judicially described as a ‘palpable disregard’
for the concept of ‘due and proper respect for the hierarchy of authority’.236 More
specific examples given by the judiciary of prejudicial conduct are: ‘unfair and
discriminatory treatment of a subordinate on grounds such as race, religion, sex or
physical peculiarities’,237 and thieving or abuse of personal property.238 Even the
Federal Court has stated that ‘[i]t is impossible, indeed unwise, to attempt any
exhaustive definition of the words employed in s 60.’239 According to Lockhart J, it is
for the courts and military disciplinary tribunals to determine the application of s 60 in
particular contexts.240
A charge of prejudicial conduct is highly dependent on the facts of the case. The
Courts Martial Appeal Tribunal hearing a charge of prejudicial behaviour under the
Army Act 1881 (UK) highlighted the importance of considering the acts or omissions
of the accused in their context when it stated that:
It is quite possible that conduct…of a member of the forces will be prejudicial to

good order and military discipline in one region or at one time although perfectly
innocent elsewhere or at another time.241
For this reason the judiciary hearing a charge of prejudicial conduct should consider
the circumstances in which the allegedly prejudicial conduct was said to have
235
Anning v Chief of Naval Staff [1989] DFDAT 5 (11 May 1990) 19.
236
237
Anning v Chief of Naval Staff [1989] DFDAT 5 (11 May 1990) 21.
238
Kasprzyck v Chief of Army [2001] ADFAT 5 (10 September 2001) 28 (Heerey, P).
239
Chief of General Staff v Stuart (1995) 133 ALR 513, 535.
240
241
Re Wallace’s Appeal (1970) 18 FLR 220, 226.
46
occurred.242 Rogers v Chief of Navy demonstrates the importance of context in
achieving a conviction of prejudicial conduct.243 Referring to the facts of the case
before it the DFDAT said that: ‘Depending on the circumstances, it may be that a
single act of sexual intercourse with a subordinate does not amount to a breach of s 60
of the Act. In the present case, the breach was created by a continuing state of affairs
arising from the particularised acts.’244
Rogers v Chief of Navy was decided after the introduction of the Human Rights
(Sexual Conduct) Act 1994 (Cth) yet it was not mentioned. The Act states that:
Sexual conduct involving only consenting adults in private is not to be subject, by

or under any Commonwealth, a State or a Territory to any interference with privacy
within the meaning of Article 17 of the International Covenant on Civil and
Political Rights.245
This Act was enacted to implement Australia’s obligations under Art 17 of the ICCPR
which prohibits any arbitrary interference with privacy, family, home or
correspondence unless it is necessary or ‘reasonable in the circumstances’.246 In a
General Comment the UNHRC stated that ‘arbitrary interference’ can extend to
interference provide for under the law.247 The UNHRC went on to say that ‘the
concept of arbitrariness is intended to guarantee that even interference provided for by
law should be in accordance with the provisions, aims and objectives of the Covenant
and should be, in any event reasonable in the circumstances.’248 This Comment is not
legally binding; however it is intended to assist States Parties fulfil their reporting
obligations under the ICCPR. If a breach of the Human Rights (Sexual Conduct) Act
had been raised in Rogers v Chief of Navy the Department of Defence would have had
242
Newboult v Chief of the General Staff [1989] DFAT 3 (11 May 1990) 11.
243
(2002) 169 FLR 431.
244
Rogers v Chief of Navy (2002)169 FLR 431, 436.
245
Human Rights (Sexual Conduct) Act 1994 (Cth) s 4(1).
246
Toonen v Australia (1994) 31 HRC 97 para 8.3 cited in Bronitt and McSherry, above n 49, 717.
247
CCPR General Comment No. 16: The right to respect of privacy, family, home and
correspondence, protection of honour and reputation (Art.17) (1988).
248
Ibid, 6.
47
to establish that the interference in the sexual lives of its members was not arbitrary or
unreasonable in the circumstances.249 In making a decision regarding a possible
breach there would need to be a balancing of factors such as the importance of the
Chain of Command to the ADF against the sex lives of its members.250 It can be
argued that the restriction on sexual relations between ranks in order to protect
authority within the Chain of Command, as justified in Rogers v Chief of Navy, is not
in accordance with the ICCPR and appears unreasonable in the circumstances.251
Chief of General Staff v Stuart is the leading case on prejudicial conduct under the
DFDA.252 In this appeal, the Federal Court provided guidance on the application of s
60. Lockhart J, with whom Davis, Lee and Herrey JJ agreed, defined s 60 as applying
to acts that ‘have a reasonably direct or proximate and clearly perceived effect upon
the discipline and credit of the Defence Force’.253 Lockhart J explained that
[f]or behaviour to be of a kind as to be likely to prejudice the discipline of the

Defence Force or likely to bring discredit upon it would not embrace trivial
behaviour, nor behaviour that could only remotely be said to be prejudicial to that
discipline.254
These definitions of prejudicial conduct appear to add little the understanding of the
provision because the expressions used, such as ‘reasonably direct’, are not easily
definable. Yet these definitions have been subsequently followed in the DFDAT.255
249
1994 (Cth); (2002) 169 FLR 431.
250
For an example of the UNHRC balance factors in the consideration of Art 17 see Cornelis van
Hulst v Netherlands 12 IHRR 309 (2005) cited in S Joseph, Human Rights Committee: Recent Cases
(2005) 5(1) Human Rights Law Review 105, 108.
251
(2002) 169 FLR 431.
252
(1995) 133 ALR 513.
253
254
255
Kasprzyck v Chief of Army [2001] ADFAT 5 (10 September 2001) (Mildren, J) and Mocicka v
Chief of Army (2003) 175 FLR 476.
48
While most cases are concerned with the first limb of s 60, behaviour which would
prejudice the discipline of the ADF internally, 256 Mocicka v Chief of Army is
concerned the second limb which is designed to protect the reputation of the ADF as a
whole.257 Judicial interpretation of the second limb has stated that behaviour will not
be prejudicial unless ‘the conduct is such that, in all the circumstances of the case,
there is a good chance that it will bring discredit upon the Defence Force.’258
Therefore, there will need to be ‘a good chance, not a remote possibility, that some
person(s) other than a member of the force will become aware of the impugned
conduct.’259
While the reasons given by the courts and tribunals regarding conduct that was or was
not found to be prejudicial will assist defence members in understanding the scope of
s 60 this will only occur if statements are brought to the attention of members.260
Given that the vast majority of service offences, including prejudicial conduct, are
heard by summary authorities as closed courts and their statements are not publicly
available, the potential for members to become informed as to what constitutes
prejudicial behaviour is minimal. Members have to rely on their own or fellow
members’ experiences of being part of a prejudicial conduct hearing. It is obviously
hard to avoid committing an offence when what constitutes that crime is not defined
with any certainty.
V CONCLUSION
256
ADFAT 5 (10 September 2001) (Mildren, J).
257
(2003) 175 FLR 476, 479.
258
Mocicka v Chief of Army (2003) 175 FLR 476, 480.
259
Mocicka v Chief of Army (2003) 175 FLR 476, 480.
260
49
According to McBarnet one justification used for the reduction in due process at the
summary level is that the law involved is not complex. Yet the law in s 60 of the
DFDA is far from simple. The lack of a precise judicial definition of prejudicial
conduct demonstrates the vagueness of the law regarding this offence. The fact that
the courts and tribunals have been unwilling to limit the scope of s 60 creates
continuing legal uncertainty regarding the offence. This means that the circumstances
of individual cases are fundamental to judicial decision making, which in turn
contributes to unpredictable outcomes. The complexity of the law involved in
prejudicial conduct charges demonstrates why lawyers could be of assistance to
accused members at summary proceedings. The legal complexity of prejudicial
conduct does not justify a reduction in due process instead it would appear to support
an argument for a stronger application of the fair trial principles.
50
CONCLUSION
Elements of summary proceedings under the DFDA appear to deviate from some
aspects of the due process fair trial principles found in the common law and protected
by the ICCPR. Summary authorities acting according to the DFDA could be in
breach of principles such as open justice and equality before the law. This is despite
being conducted in accordance with the law.
Summary proceedings under the DFDA appear to be affected by an ideology of
triviality as outlined by McBarnet. This thesis demonstrates that summary
proceedings have been treated as trivial yet this is not justifiable. While there have
been a number of inquiries into the military justice system summary proceedings have
attracted little comment. Academics have also tended to skim over summary
procedures in favour of High Court pronouncements on military justice. ADF figures
concerning the disciplinary system demonstrate that numerically summary
proceedings are not trivial; instead they comprise the majority of hearings under the
DFDA.
The justifications used for the reduction in due process in the lower courts found by
McBarnet, the perceived triviality of the offences, penalties and law involved, are not
justifiable in the context of summary proceedings under the DFDA. The offences
heard in summary proceedings are for the most part the same as those heard by Courts
Martials and DFM. Therefore, they cannot automatically be classified as trivial. The
penalties under the DFDA are not trivial, as demonstrated by their potential to affect
personal liberties and members’ careers. The law involved in military discipline is no
51
different to other laws in the ACT and, as demonstrated by the case law surrounding s
60 of the DFDA, it can be complex. These factors all demonstrate the importance of
ensuring that the fair trial principles apply to summary proceedings.
The military justice delivered in summary proceedings has been ignored for too long.
The DFDA is in need of a detailed independent review to ensure that the law does not
allow fundamental common law human rights and those protected by the ICCPR to be
overlooked.
52
APPENDICES
APPENDIX 1
Uniform Code of Military Justice (US) Section 934, Article 134 General article
Though not specifically mentioned in this chapter, all disorders and neglects to the
prejudice of good order and discipline in the armed forces, all conduct of a nature to
bring discredit upon the armed forces, and crimes and offences not capital, of which
persons subject to this chapter may be guilty, shall be taken cognizance of by a
general, special, or summary court-martial, according to the nature and degree of the
offence, and shall be punished at the discretion of that court.
APPENDIX 2
Australian Federal Police (Discipline) Regulations 1979 (Cth) Regulation 9
(1) An AFP appointee must not:…

(e) act in a manner that is prejudicial to the good order and discipline of
the Australian Federal Police; or
(f) act in a manner that brings, or is likely to bring, discredit to the
reputation of the Australian Federal Police.
53
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Darbyshire, P, The Mischief of Plea Bargaining and Sentencing Rewards [2000]

Criminal Law Review 895
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Criminal Law Review 627
Devereux, J, ‘Discipline Abroad: Re Colonel Aird; Ex parte Alpert’ (2004) 23(2)

University of Queensland Law Journal 485
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Western Australian Law Review 47
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56

Summary Proceedings Within The Australian Military Justice System: How and Why Are They Inherently Unjust?

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SUMMARY PROCEEDINGS WITHIN THE

AUSTRALIAN MILITARY JUSTICE SYSTEM: HOW

AND WHY ARE THEY INHERENTLY UNJUST?

A paper submitted for Honours Thesis

Faculty of Law, The Australian National University

tabled a report entitled ‘The effectiveness of Australia’s military justice system’

of summary justice is considered using the theoretical framework developed by socio-

legal academic, Dr Doreen McBarnet in 1979.5 Her research, mainly involving

observational study in Scotland’s lower courts, resulted in seminal sociological study

administered with a reduction of due process.

Chapter I initially provides a review of the Australian military justice system

necessary to an understanding of summary proceedings. The chapter then examines

in detail the way summary proceedings are conducted according to legislation,

regulations and Department of Defence guidelines.

Chapter II introduces McBarnet’s theory of the ideology of triviality in the lower

seriously affect service personnel’s lives. The lack of lawyers in summary

comply with the due process fair trial principles.

show the complexity of Australian military law administered summarily. Therefore,

applicable to summary proceedings for s 60 offences.

AUSTRALIAN MILITARY JUSTICE SYSTEM

In order to explore whether summary proceedings conducted within the Australian

reflected in common law, statutory provisions and enumerated in Art 14 of the

International Covenant on Civil and Political Rights (ICCPR), it is important to

summary proceedings available and how they are designed to operate.

described discipline as being ‘integral to the effectiveness and efficiency of

efficiency in the performance of service functions’.11

A distinctive feature of the ADF which is important to the administration of service

discipline is the Chain of Command. The ADF functions through a Chain of

over subordinates by virtue of rank and appointment.’13 According to General

which is essential to command.14 Certain offences under the DFDA provide

a lawful command,16 and failing to comply with a general order.17

III THE LEGAL FRAMEWORK

law relating to service offences.22

military offences, such as insubordinate conduct and disobeying a lawful command.

Commonwealth Director of Public Prosecutions must be obtained to institute

murder, manslaughter and specified sexual offences.24

disciplinary offences, creates a self-contained criminal justice system which applies in

all military circumstances, including overseas deployments.25 It is the law of

courts do not have the power to hear charges of service offences.

applies are known as defence civilians.32

In 1823, Sir William Blackstone described summary proceedings as hearings where

discretion of the judge or judges appointed by act of parliament, or common law.’33

In the context of contemporary Australian military discipline, the word ‘summary’ is

DFM.36 Summary proceedings are heard by summary authorities. These authorities

are either subordinate summary authorities, commanding officers or superior

DFDR outlines the responsibilities of summary authorities to ‘duly administer justice

or incapacity to present their case.38

It is the Commanding Officer (CO) who is at the centre of the administration of

first instance be dealt with by either a summary authority or a CO at a hearing.

Dealing with a charge means making a decision;

• to try the charge where it is within a CO or summary authority’s jurisdiction;

decision whether or not to proceed to charge personnel.41 A CO has the jurisdiction to

to a prescribed offence.42 Prescribed offences include treason, rape, murder,

(Cth) such as endangering morale, or reckless or negligent hazarding of a ship.44 It

prosecution and judicial decision making.

A subordinate summary authority is appointed by a CO in a written instrument which

prescribed offence) allegedly committed by a member who is of or below the rank of

leading seaman, corporal or an officer cadet.46

by a CO or a convening authority. A superior summary authority has jurisdiction to

squadron leader (or equivalent), a warrant officer, or a defence civilian.47 An officer

appointed by the Chief of the Defence Force or a Service Chief.48

B The Discipline Officer Scheme