Administrative Discharge in lieu of Military Disciplinary Proceedings - Supportive or Subversive of a Military Justice System?

Queensland Tri-service Reserve Legal Officers' Panel Training Day, Brisbane

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According to an article published in The Australian earlier this month,^[2] seven members of 1^st Battalion, The Royal Australian Regiment (1 RAR), virtually an entire infantry section, were discharged from the Army earlier this year because of "inappropriate conduct towards two women who had recently joined that battalion". Apparently, that battalion had become the first in the Army "to accept female soldiers in combat roles".^[3] Four of the soldiers concerned were reported to have been discharged in connection with texts concerning one of these female soldiers. The article states that these were "sickening messages", "fantasising about a violent sexual attack on a female recruit".^[4]

Also earlier this year, when sitting in the Administrative Appeals Tribunal, I was exposed, in the context of a freedom of information access controversy involving an access request made by a reporter employed by the publisher of that same newspaper, to a very different text messages, an exchange between the then Chief and the then Vice Chief of the Defence Force.^[5] These text messages were a sequel to other articles in that newspaper. Those other articles had questioned the wisdom of the adoption and implementation for the Australian Defence Force (ADF) of a policy of cultural inclusion and diversity and had raised concerns about its possible impact on the ADF's warfighting capabilities. The posting of female soldiers to 1 RAR may well have been a manifestation of that same policy. So, too, seemingly, was the occasion for the discharge of the seven male soldiers.

Because of my past Army Reserve service, I do have some practical experience of the challenges, benefits and burdens presented by gender diversity in a military unit.^[6] I have also encountered these when sitting as a member of the Defence Force Discipline Appeal Tribunal (DFDAT).^[7] But it is no part of my purpose in this paper to question the wisdom that policy. Indeed, so doing would not just be gratuitous, but completely inappropriate for a serving judicial officer. For better or for worse, the conception and implementation of a policy of cultural inclusion and gender diversity is a matter for the Minister for Defence, advised by the Chief of the Defence Force (CDF).^[8]

The administrative action that resulted in the reported discharge of these soldiers can be viewed as a command value judgment, intended to reinforce respect for, and adherence to, that policy within the ADF. If so, an understanding in detail of how serious was the lapse by the soldiers concerned in their conduct as members of the Australian profession of arms is hindered by a dearth of information about their deviation from required norms of military professional conduct. That is because, according to the same newspaper report, "The Defence Department has confirmed that the soldiers were terminated but declined to provide any information about the sackings, citing privacy grounds."

There is no reference in the newspaper article to the taking of any action against these soldiers in respect of the commission, contrary to Defence Force Discipline Act 1982 (Cth) (DFDA), of any service offence. The impression engendered by the article and the brief response given to The Australian by the Department of Defence is that no such proceedings were taken. Rather, the conduct concerned appears to have been dealt with by way of administrative discharge action alone. That is so even though it is a necessary inference from a follow up article in The Australian that the terminations were preceded by an investigation conducted by the Australian Defence Force Investigative Service.^[9]

That service offences may have been committed by the soldiers concerned, if the conduct were as reported, is not difficult to discern. Such conduct, if proved, could, at the very least, arguably be regarded as "likely to prejudice the discipline of, or bring discredit on, the Defence Force", contrary to s 60(1) of the DFDA. Potentially, other, much more serious, service offences come to mind. Section 61 of the DFDA makes it a service offence for a defence member to engage in conduct which, if committed in the Jervis Bay Territory, would constitute a "Territory offence". Via this means, a range of service offences concerning the unlawful use of a carriage service contrary to the Criminal Code^[10] may possibly have been committed. These latter offences carry substantial terms of imprisonment as the maximum penalty.

Part IV of the DFDA makes elaborate provision for a range of punishments for service offences. If dealt with by court martial or Defence Force Magistrate (DFM), and the service offences potentially raised by the reported conduct would be apt for such dealing, the permissible range of punishments would, in the event of conviction, include imprisonment for a period and "Dismissal from the Defence Force".^[11] "Dismissal from the Defence Force" is the second most severe punishment that may be awarded by a DFM or court martial, imprisonment being the most severe.^[12] Another indication of the severity of dismissal from the ADF as a punishment for a service offence is that while, in theory, dismissal alone could be imposed as a punishment; it must be imposed if imprisonment is ordered. Other sentencing options for a court martial or DFM would include an order for detention in a military correctional establishment and a fine.

The apparent reticence of the Defence Department to supply The Australian with details about the conduct that led to the terminations of service may be contrasted with the position that would have prevailed if that same conduct had been dealt with by a trial before a DFM or a court martial. Prima facie, that trial would have been held in public.^[13] That prima facie position would have been subject to a limited class of restrictions recognised by the DFDA,^[14] which might arise in a particular case. In respect of any restriction on publicity proposed to a service tribunal by a service chief as prosecutor, the publisher of The Australian would have to have been afforded an opportunity to be heard, if sought. If the service tribunal were a court martial, the President of that court martial could not order any restriction in respect of its conduct in public without prior consultation with the judge advocate appointed to that court martial.^[15] And that judge advocate would be an officer drawn from a panel^[16] membership of which is dependent upon a nomination by the Judge Advocate General.^[17] In turn, the Judge Advocate General must be a person who unless the person is or has been a Justice or Judge of a federal court or of a Supreme Court of a State or Territory.^[18]

In short, to deal with the alleged conduct under the DFDA would have offered a potential for the exposure of the allegations to what the current CDF, in his earlier capacity as Chief of Army, once pithily described as "the healing light of truth".^[19]

If the conduct of these 1 RAR soldiers amounted, prima facie, to a service offence, publicity is not the only distinguishing feature between resort to administrative action and resort to the DFDA.

Before a service tribunal, the commission of an alleged service offence must be proved beyond reasonable doubt by admissible evidence.^[20] Unless and until a charge is so proved, the defence member concerned is presumed to be innocent.^[21] Subject to the exigencies of service, accused defence members enjoy, without fee, a right to representation by a legal officer before a service tribunal such as a court martial or DFM.^[22] At trial, accused defence members enjoy a right to cross-examine witnesses called by the prosecuting service chief, to make submissions on issues of law and, if so advised and disposed, to adduce evidence in their defence. In the event of conviction and sentencing, the proceedings of the service tribunal are subject to automatic review and also to review on the petition of the defence member concerned by a legally qualified reviewing authority.^[23]

If convicted, defence members enjoy a right of appeal against conviction to the DFDAT under the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act).^[24] That right of appeal^[25] is similar in substance to the right of appeal against conviction enjoyed by those convicted of civilian criminal offences. In the ordinary course of events, DFDAT sittings are held in public.^[26] The parties to an appeal determined by the DFDAT may appeal on a question of law to the Federal Court of Australia.^[27] A further appeal to the High Court of Australia is possible by special leave of that court.^[28]

Membership of the DFDAT is restricted to those who are members of the Australian judiciary.^[29] Members of the DFDAT are not in any way answerable to the Minister for Defence or to the CDF. The Attorney-General administers the Appeals Act.^[30] That does not mean that the Attorney may direct members in relation to the discharge of their duties. In the exercise of their powers and the performance of their functions under the Appeals Act, members of the DFDAT enjoy the same protection and immunity as a Justice of the High Court.^[31] Members may only be removed during their term of office on grounds akin to those that would warrant their removal from judicial office.^[32]

The DFDA also makes elaborate provision in relation to the investigation of service offences, for proceedings before service tribunals, both before any conviction and in respect of sentencing in the event of conviction and for a prosecuting authority, the Director of Military Prosecutions (DMP)^[33]. The DMP enjoys particular independence from the ADF chain of command^[34] in the performance of his functions under the DFDA.^[35] 

This elaborate provision is directed to ensuring that charges in respect of service offences are dealt with in a procedurally fair way and otherwise according to law and that punishment in the event of conviction is no more severe than that appropriate for the gravity of the service offence committed.

Collectively, these statutory provisions in respect of investigation, trial, review and appeal in the military justice system might be termed "due process" provisions.

Administrative discharge by early termination of the service of a member of the ADF is the province of the Defence Regulation 2016 (Cth), made under the Defence Act 1903 (Cth). The service of a member of the ADF may be terminated by the CDF (or his delegate), before it would otherwise terminate in any event, on bases which materially include that, "retention of the member's service is not in the interests of the Defence Force".^[36] The expression, "interests of the Defence Force" is defined,^[37] in a non-exhaustive way, to include reasons relating to one or more of the following:

(a) a member's performance;

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

(c) a member's suitability to serve:

(i) in the Defence Force; or

(ii) in a particular role or rank;

(d) workforce planning in the Defence Force;

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

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

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

If administrative discharge power is proposed to be exercised, the only procedural fairness obligation with which its exercise is expressly attended is that the member concerned must be given notice and at least 14 days after the date of the notice to provide a written response before any final decision is made.^[38] Inferentially, the CDF (or his delegate) would be obliged to take into account any written response prior to the making of an early discharge decision.

Where the alleged conduct grounding the proposed termination might amount either to a service offence or to a civilian criminal offence (or to both), the benefit of an opportunity afforded to the affected defence member to show cause may be more apparent than real. In deciding whether to make a submission, the defence member may be placed in the difficult position of having to determine whether or not to waive a right to silence.

A termination decision, being administrative in character, need not be based on admissible evidence, only material reasonably supportive of the reason adopted.^[39] It need not be preceded by any hearing in which the defence member concerned is given any right to cross-examine an informant. Depending on the extent to which procedural fairness might require it, the defence member may not even have to be provided with the name of the informant, only the substance of an adverse allegation upon which it is proposed to terminate his or her service.

Such a termination decision is amenable to judicial review by the Federal Court,^[40] or by the Federal Circuit Court of Australia.^[41] Strictly, by virtue of s 75(v) of The Constitution, it would also be possible to apply in the original jurisdiction of the High Court for a constitutional writ in respect of such a decision. Unless some issue of general and, in particular constitutional importance were raised in such an application, it might be expected that the High Court would remit it to the Federal Court for hearing.

Axiomatically, judicial review can entail no trial on the factual merits of a discharge decision, only whether that decision was attended with an error of law.^[42]

If the reason adopted for early termination were that the retention of the service of the defence member was "not in the interests of the Defence Force" the prospect of a successful challenge by the affected defence member to reasonableness of the value judgement entailed in the decision is minimal.^[43] Even as defined, this discharge ground, especially in criteria (f) and (g), offers a paradigm example of "a matter of opinion or policy or taste" in respect of which "it may be very difficult to show that" the CDF's early termination decision "could not reasonably have been reached". ^[44] That reasonable minds might reasonably differ about the aptness of termination as a response to particular conduct would be insufficient to establish unreasonableness on the part of the CDF (or his delegate) in the making of an administrative discharge decision on this discharge ground.^[45]

If based on an assessment of relative credibility as between the account of the defence member under jeopardy of termination and that of an informant, such an early termination decision by the CDF (or a delegate) would not be unexaminable on judicial review.^[46] However, because it is par excellence one for the decision-maker, it may be very difficult to demonstrate that an administrative credibility finding was attended with jurisdictional error.^[47]

A defence member may apply for redress of grievance in respect of a termination decision.^[48] The present redress system has both superior and inferior features when compared with the redress system that it replaced.^[49] Under the present redress system, an inquiry into the merits of an administrative discharge decision may be conducted by the Inspector-General ADF, an official who enjoys statutory tenure independent of the ordinary chain of command within the ADF.^[50] Under the previous system, a redress of grievance would have been dealt with within the chain of command, ultimately by a service chief or a delegate of one star rank. The independence of the Inspector-General might be regarded as a superior feature. Unlike the previous redress system, under which the powers enjoyed by an officer inquiring into a grievance were plenary,^[51] the powers of the Inspector-General in relation to a termination decision are limited to the making of a recommendation and provision of associated findings to the CDF and to others within the defence member's chain of command.^[52] The Inspector-General is not empowered to reverse a termination decision. This might be regarded as an inferior feature of the present system.

The comprehensive review on the merits offered by the previous redress system, the origins of which may be traced to that historically applicable in respect of the British armed forces,^[53] offered a basis upon which judicial review proceedings in respect of an administrative discharge, commenced before completion of redress procedures, might be dismissed as a matter of judicial discretion.^[54] Given the present redress system's absence of plenary, merits review, it is at least moot as to whether a pending inquiry by the Inspector-General would provide a basis for an early termination of a judicial review proceeding challenging the legality of a termination.

Of course the CDF would need good reason to depart from the recommendation and findings of the Inspector-General in relation to a termination decision. But it is possible to envisage circumstances where the CDF, as a matter of command value judgement, considered that reinforcement of the importance of the policy of inclusion and diversity dictated the termination of a defence member's service even though the Inspector-General may have found that there were extenuating circumstances attending the conduct concerned and recommended against termination.

The very definition of the "interests of the Defence Force" in the Defence Regulation makes it plain that discipline of the ADF can be a reason for the early termination of the service of a defence member. But the adoption of this method is attended with nothing like the "due process" requirements of prosecution under the DFDA in respect of a service offence.

A recent example of alleged sexual misconduct by an Australian Defence Force Academy (ADFA) cadet, Jack Mitchell, offers a reminder of the importance of due process. Defence members enjoy no special immunity from civilian criminal law in relation to their misconduct in Australia.^[55] In respect of a vast range of such offending conduct in Australia that may constitute a service offence, charges may alternatively be brought either under the DFDA or under civilian criminal law.^[56] In relation to certain serious civilian criminal offences committed in Australia, of which rape is one, the DFDA provides that the civil power has the authority to determine under which system an alleged offender is to be dealt.^[57] This is also one of the "due process" provisions.

Mitchell was alleged to have raped a fellow ADFA cadet in his room in May 2016. He was tried in respect of this alleged offence not as a service offence under the DFDA before a service tribunal but in the ACT Supreme Court before a judge and jury under the civilian criminal law. On 5 July 2017, he was acquitted upon the return, after but one hour's retirement, of a unanimous jury verdict of "Not Guilty".^[58] One might hope and expect that, had civil power paramountcy not been adopted and his case tried before a general court martial, a like verdict on the same evidence would have followed from the panel. If, perhaps because of an apprehension as to the adequacy of evidence to prove a charge of rape beyond reasonable doubt, the matter was just left to the CDF to decide whether Cadet Mitchell ought to have been administratively discharged then, for reasons already given, very different considerations in relation to necessary evidence and proof would have been applicable.

Aside from the presumption of innocence, onus and standard of proof and applicability of the law of evidence as applicable in a service tribunal or a civilian criminal court, the due process requirements mentioned are not without other value to a defence member. In theory, even after an acquittal or the quashing on appeal of a conviction, early termination by administrative discharge might still be ordered. Administrative satisfaction on material available to the CDF is different to proof beyond reasonable doubt on admissible evidence. But the basis for an acquittal or the quashing of a conviction may leave no room for any such administrative action to be taken reasonably.

Two cases decided this decade by the DFDAT offer examples of the quashing of convictions on bases that would leave no room for subsequent administrative discharge action. They also highlight the importance, both to individual defence members and to public confidence in the integrity and fairness of the military justice system, of the comprehensive "due process" provision.

Captain Stefan King RAN was convicted by general court martial of a number of offences against the DFDA grounded in his alleged obtaining unlawfully of a financial advantage in respect of rental and other allowances. One basis upon which his convictions were quashed on appeal was that, properly construed, he was not disentitled to the allowances under applicable defence instructions.^[59]

Warrant Officer Class 2 Peter Randall, a member of the Royal Australian Corps of Signals, was convicted by a restricted court martial of unauthorised access to (or modification of) restricted data and also of prejudicial conduct. One basis upon which his convictions were quashed was that, given the language of particular applicable duty statements, orders and instructions, it could not be proved beyond reasonable doubt that he lacked access authority.^[60]

These DFDAT decisions overturned views held within the ADF by the relevant service chief as to the meaning and effect of the applicable instructions, orders and duty statements. It is only to be expected that these "in-house" views would have informed any administrative discharge action taken by the CDF (or his delegate) as an alternative to prosecution under the DFDA. Each defence member would then have been left with resort to judicial review to challenge the legality of that discharge decision. In theory, illegality might have been found on judicial review on the same basis as determined by the DFDAT. But, in contradistinction to the DFDAT,^[61] the court hearing that judicial review application would have had no power to approve the granting of legal aid to that defence member.

Administrative discharge on a basis that continued service is not "in interests of the Defence Force" may entail a reflection on the defence member's character that has continuing adverse consequences for that person both in the civilian employment market and beyond. Termination of service also removes a member from continued access to the range of medical, dental, housing and other fringe benefits provided to defence members, quite apart from the receipt of their service pay and allowances.

Conversely and perversely, for some defence members otherwise subject to a "service obligation debt" to the Commonwealth in the event of early, voluntary termination of service,^[62] engaging in conduct which might amount to a service offence against s 60 of the DFDA but not to a service offence with a civilian criminal law equivalent might just offer a convenient way of avoiding the incidence of that debt. "Service obligation debt" considerations aside, certain types of conduct at variance with the policy of gender diversity and inclusion and known to be visited with administrative discharge as a means of vindicating that policy, might just be attractive for some defence members who wish to enjoy financial or other advantage in a civilian career prior to what would otherwise be the expiry of their period of ADF engagement.

If evidence exists to warrant the charging of an individual with a service offence, resort to administrative discharge as a means of terminating service may, rightly or wrongly, leave the defence member concerned with a sense of grievance that would be difficult to sustain were that conduct found proven by a service tribunal. Reasonable maintenance of that grievance would be especially difficult if, before a service tribunal, the defence member concerned had chosen to give evidence or to make submissions in mitigation of sentence reflecting the basis for that grievance and nonetheless been convicted. One of those administratively discharged from the Army in 2013 as a sequel to the notorious "Jedi Council" scandal was Lieutenant Colonel Karel Dubsky, Commanding Officer of the Joint Logistics Unit North Queensland. Three years later, Dubsky still nurtured a grievance in respect of his termination with the (by then retired) Chief of Army at the time of his termination, Lieutenant General David Morrison. Dubsky had apparently received but not opened and had then deleted one of the offensive emails. Morrison's riposte was that Dubsky had not passed the email concerned up the chain of command so that he could deal with it.^[63] That failure was not charged as prejudicial conduct under the DFDA but dealt with administratively. Had Dubsky been charged and convicted by a service tribunal of a service offence in respect of that failure and then sentenced to dismissal from the ADF, it is difficult to see how any reasonable basis for his grievance could have been sustained (assuming there was one at all).

To adopt the administrative discharge method where there exists prima facie evidence of the commission of a service offence does not just circumvent all of the due process provisions found in the DFDA and the Appeals Act. It also circumvents all of the objectives of the scale of punishments for which the DFDA provides in the event of conviction. Early termination via administrative discharge may be regarded as serving the ends of general deterrence; a feature in common with one of the objectives of sentencing but it is emphatically not rehabilitative in respect of the defence member concerned. Even as a deterrent measure, its effectiveness is moot if, as apparently the case in relation to the 1 RAR members, its process is secretive and without even a civilian criminal justice system sequel.

The termination of the service of seven members of 1 RAR exceeded by two the highest number of fatal casualties on operational service suffered on one day by the ADF since the Vietnam War.^[64] Fatal casualties have tragic consequences that have no counterpart in a termination of service on the basis that retention is "in interests of the Defence Force". Multiple, fatal military casualties on one day are deeply shocking, especially to a society without living memory of the awful numbers of casualties suffered by our army, now over a century ago, in the Battles of Fromelles, Pozieres, Villers Bretonneux, Dernancourt, Lone Pine or The Nek during the First World War. In this sense, there is no comparison with the 1 RAR terminations of service. But the termination of the service of seven members of one infantry battalion is shocking in its own way. "Discharged dead" and "discharged in interests of the Defence Force" each remove a defence member from a unit's establishment and require replacement. Replacing soldiers is not without economic cost to the consolidated revenue or to a unit's operational efficiency.

Almost two decades ago, the cost of training an enlisted soldier to deployable standards was estimated to be $50,000.00.^[65] These days it is surely much more than that. Early termination of a defence member by administrative discharge removes at one stroke not just the benefit to the ADF of expenditure on the training of that member to that point. It also visits on the ADF budget the cost of the training of a replacement and inflicts on the ADF a lag of time and capability equivalent to that entailed in bringing the replacement up to the level of training and experience lost.

The scale of punishments in the DFDA offers alternatives to dismissal from the service that may not lead to the early termination of a member's service. Detention as a sequel to trial, conviction and sentence by DFM or court martial in the Defence Force Correctional Establishment at Holdsworthy Barracks may not be pleasant but the purpose of such detention can be rehabilitative as well as punitive. The punitive aspect serves both individual and general deterrence ends. The rehabilitative element serves the end of ensuring that the benefit of expenditure on training to date and prospectively is not lost throughout the balance of the defence member's term of service. In respect of some service offenders, detention may be an appropriate sentence where the service tribunal considers that rehabilitation is possible and retention is desirable.

The DMP's prosecution policy for the ADF recognises that:

Laying charges under the DFDA is only one tool that is available to establish and maintain discipline. In some circumstances, maintenance of discipline will best be achieved by taking administrative action against members in accordance with Defence Instructions, as an alternative to or in conjunction with disciplinary proceedings.^[66]

This policy recognises that the selection of prosecution or administrative action as a disciplinary measure is ultimately a command value judgement but adds:

Nevertheless, administrative or Discipline Officer action alone is inappropriate to deal with situations in which a serious breach of discipline has occurred or where the conduct involved is otherwise deemed to be serious enough to warrant the laying of charges under the DFDA. Further, in some cases the interests of justice may require that a matter be resolved publicly by proceedings under the DFDA before a Defence Force magistrate, restricted court martial or general court martial.^[67]

As mentioned above, if the conduct were as reported in The Australian, it is possible that serious service offences having a civilian criminal law counterpart were committed by some at least of those whose service was terminated early by the CDF (or his delegate). These apart, the apparent conduct would arguably be capable of falling within s 60 of the DFDA. If there were some reason why administrative discharge rather than prosecution under the DFDA was considered apt by the CDF, the opportunity of explaining that to that newspaper and thus the general public was not taken up upon its inquiry.

Necessarily, this absence of official explanation lends a speculative element to what follows.

One reason, perhaps, for resort to administrative discharge may have been an apprehension as to the delay that would attend a DFDA prosecutorial process, relative to the swiftness with which administrative discharge might be effected. Another might be the retention of greater control over events by the CDF offered by administrative discharge, relative to prosecution under the DFDA. Yet another might be a perceived need to be seen, at least within the Department of Defence, to be vigorous in the support for and implementation of the policy of inclusion and diversity.

As to delay, there is no reason to think that the process of prosecution of service offences under the DFDA, including any related appeals to the DFDAT, is or since Federation ever has been any tardier than has been its civilian criminal counterpart. This is borne out by an historical, comparative survey.

For Australians, the misconduct during the Boer War of Lieutenant Harry ("The Breaker") Morant and his co-defendants, summary execution in the field of a suspect, offers an enduringly notorious and controversial example of a type of violation of the Laws of War. ^[68] Their court martial offers a useful starting point for a survey to test whether the likely present length of the military justice process is any different from earlier times and also to test that against timeliness in the civilian criminal justice system of the day.

A survey commencing at the Boer War era, moving to the Vietnam War era and then drawing upon more recent cases which have come before the DFDAT is annexed to this paper.

It is noticeable from this survey not just that the length of time for charging, trial and, where applicable, sentencing in respect of service offences has expanded over the course of the last century but also that this expansion in time has broadly corresponded with a like expansion in timelines in the civilian criminal justice system.^[69]

The report of the administrative discharge of the seven members of 1 RAR may be one marker of a trend within the ADF, at least in certain types of case, to prefer administrative discharge to prosecution under the DFDA.

Another such marker may be that the number of defence members detained at the Defence Force Correctional Establishment has been falling in recent years.^[70]

ADF policy in relation to the use of administrative discharge as a disciplinary alternative to a prosecution under the DFDA, recognised in the DMP's prosecution policy, is similar to that prevailing in the British Army but perhaps less emphatic than the British in relation to when prosecution should occur. As with the ADF, British Army policy recognises that, "Disciplinary Action and Administrative Action are both necessary and complementary to one another."^[71] British Army policy is firm in relation to the pre-eminence of disciplinary action over administrative action:

67.04 Disciplinary Action and Administrative Action are both necessary and complementary to one another. Although their uses are entirely separate, their uses are not mutually exclusive: 'upholding good order and Service discipline' and 'safeguarding or restoring the operational effectiveness and efficiency of the Army' cover much of the same ground. Commanders must use their powers and authority appropriately and effectively in the context of the offence or misconduct and the operational circumstances. As a general rule, Disciplinary Action should only be used where the offence is wholly deserving of the consequences of the application of Service law. On the other hand, Administrative Action – which is intended to set straight shortcomings which breach the Service Test – should only be used for matters that would amount to criminal conduct or to a disciplinary offence that has 'criminal' elements if this course is supported by both G1 and written legal advice. Such support will only be given in cases where the interests of justice do not require the Chain of Command to take disciplinary action. This might include where an offence dealt with by a civilian court has had an effect on operational effectiveness or where facts were revealed during a disciplinary investigation or trial which were not dealt with in the disciplinary process.

67.05 Administrative Action must always be considered subsequent to any Disciplinary Action, whether summary, Court Martial or prosecution in a civil court, regardless of whether the accused is convicted or acquitted. Such action does not amount to double jeopardy, nor is it in principle oppressive or unfair. It is an established and legally robust dimension of employment practice and is in keeping with the regulation of other professions. It is entirely reasonable for the Army to take into account the employment consequences of a serviceman's failings.^[72]

[Footnote reference omitted]

This British Army policy is very similar to a recommendation made by in 1999 by the Australian Parliament's Joint Standing Committee on Foreign Affairs, Defence and Trade in its report, "Military Justice in the Australian Defence Force".^[73] Recommendation 53 was:

The Committee recommends that where professional failure involves negligence of a criminal nature, subject to the weight and probity of evidence being sufficient, criminal proceedings should be instituted.

On the face of things and absent explanation from the ADF to the inquiry by The Australian, the termination of the service of the members of 1 RAR may have been at variance with this recommendation and perhaps also with the DMP's policy.

In the United States of America, over half a century ago, the Senate Judiciary Committee's Subcommittee on Constitutional Rights commenced hearings on the constitutional rights of military personnel by emphasising concern that administrative discharges were being increasingly used by the Armed Services to circumvent safeguards for the serviceman which Congress had provided in the Uniform Code of Military Justice.^[74] One sequel to those hearings was, "the introduction by Senator Sam J. Ervin, Jr. of several bills to provide service personnel with new protection in military administrative actions and to reverse the trend towards their use".^[75] Ervin's Bill was not enacted but concern in relation to over-recourse to administrative discharge by the United States Armed Forces to the detriment of due process and the Uniform Code of Military Justice has persisted in the United States,^[76] even to this day. ^[77] This concern as to the use of administrative discharge to circumvent "due process" is heightened by the entrenchment of particular rights in the United States Constitution and a course of authority in the United States Court of Military Appeals in which it has been held, "the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces."^[78]

There is no entrenched "Bill of Rights" in the Australian Constitution but the differences described above as between the rights enjoyed by a defence member if charged with a service offence under the DFDA and those enjoyed if subject to administrative discharge action are no less stark.

A concern in relation to administrative discharge as a means of terminating the service of a defence member whose conduct may also amount to the commission of a service offence (if not also a civilian criminal offence) is in the conflation in the CDF (or delegate) of the roles of accuser and decision-maker. This potential attraction for the CDF and convenience apart, a preferential use of administrative discharge in respect of such conduct may camouflage, because of expediency, deficiencies in resources or capabilities in respect of the investigation and prosecution of service offences.

If, within the ADF, there is a practice of administrative discharge of defence members whose conduct may constitute a service offence (if not also a civilian criminal offence), without either charging under the DFDA or referral of the case to the civil power, such a practice is at variance with a course recently taken by another disciplined service, the New South Wales Police Force. A 57-year-old Senior Constable in that Force pleaded guilty before a magistrate on 6 November 2018 to one count of using a carriage service to menace, harass or offend over the call. That conduct concerned was described in a report of the proceedings as, "a sickening threat to sexually assault a family member of Senator Sarah Hanson-Young in a 16-second phone call to the politician's office".^[79] Self-evidently, the New South Wales Police Force did not preferentially resort to administrative discharge to deal with the conduct of this officer. At least as revealed by the articles in The Australian, that stance is in marked contrast with the course apparently adopted earlier this year by the ADF in respect of the seven members of 1 RAR.

An analogy may provoke reflection on the appropriateness of any preferential use for termination of the service of a defence member of administrative discharge instead of proceeding under the DFDA. Deportation, as a sequel to visa cancellation on character grounds, is one way of addressing particular misconduct in Australia by non-citizens. Assume though that that misconduct may amount to a federal offence for which there exists a prima facie evidentiary case. Would it not be subversive of the aims and objectives of the Australian Parliament, in enacting the Criminal Code, for the Minister for Immigration and Border Protection routinely to adopt a policy of cancelling the visas of, and then deporting, those he administratively concluded failed the character test on the basis of his satisfaction as to their misconduct, instead of awaiting the outcome of criminal proceedings? Would it not also be subversive of the rights of an accused under the civilian criminal justice system?^[80] Such action by the Minister is, in theory,^[81] possible under the Migration Act 1958 (Cth) but experience instructs that it is rarely, if ever, undertaken.

It is now just over a decade since the system of trial by court martial or DFM in respect of alleged service offences contrary to the DFDA was emphatically held by the High Court not to constitute an invalid conferral of Commonwealth judicial power on those service tribunals.^[82] That case concerned alleged acts of indecency or assault on five lower ranking female members of the ADF by a female Chief Petty Officer. The service disciplinary ends served by proceedings before such service tribunals was the basis for that vindication. But those ends and that military justice system are subverted if, preferentially, conduct, for example, of the kind in which CPO White allegedly engaged is dealt with not under that system but by way of administrative discharge. And the same may just possibly be true in relation to some, at least, of the conduct of those now former members of 1 RAR.

© J A Logan 2018. Moral right of author asserted.

ANNEXURE A

ANNEXURE B

^[1] Caveat - The views expressed in this paper are personal. They not to be regarded as those of either the Australian or Papua New Guinea governments or any court or tribunal of which the author is a member.

Acknowledgement: I gratefully acknowledge the assistance of my present Associate, Mr Samuel White and the Manager, Library Services, Federal Court of Australia, Brisbane, Ms Joanna Fear in the conduct of research for and in the compilation of the comparative table annexed to this paper. Mr White also assisted with other research tasks in the preparation of this paper. Responsibility for errors and omissions is mine alone.

^[2] R. Callinan, "The violent sex assault fantasies that ended Diggers' careers", The Australian, 6 November 2018, p. 3.

^[3] Ibid.

^[4] Ibid.

^[5] Thomas; Secretary, Department of Defence and (Freedom of information) [2018] AATA 604.

^[6] The author enlisted as an Officer Cadet in 1975 and was commissioned via an Officer Cadet Training Unit (OCTU) into the Australian Intelligence Corps in the Army Reserve. He transferred in the rank of Major to what is these days termed the Standby Reserve in 1993. The author's OCTU course was the first in Queensland to have female officer cadets. Even over four decades ago, female soldiers served in Australian Intelligence Corps units. The author served in, was 2IC of and, briefly, administered command of one such unit. He also served with female officers and other ranks on HQ 1^st Division and HQ 7^th Brigade and at the now long ago disbanded 1^st Training Group.

^[7] Komljenovic v Chief of Navy [2017] ADFDAT 4 - conduct likely to prejudice service discipline – what constitutes – acts of physical intimacy between a male Lieutenant Commander and a female Leading Seaman in view of subordinates while on temporary shore leave in the course of an overseas deployment of the warship of which all were crew members – holding by each person charged of responsible, service discipline related appointments on board ship – requirement for objective assessment of conduct charged in the context of surrounding circumstances – HELD objectively, charged conduct likely to prejudice service discipline.

^[8] ss 8 and 9, Defence Act (Cth) 1903.

^[9] R. Callinan, "Whistleblower spoke to war crimes analyst", The Australian, 8 November 2018, p. 2.

^[10] Schedule to the Criminal Code Act 1995 (Cth).

^[11] s 67(1), DFDA and Schedule 2, DFDA; s 70(1) DFDA would mandate order of dismissal from the ADF if an order for imprisonment were made.

^[12] s 68 and Schedule 2 to the DFDA.

^[13] s 140(1), DFDA.

^[14] See s 140(2), DFDA.

^[15] s 140(3), DFDA.

^[16] s 117, DFDA.

^[17] s 196, DFDA.

^[18] s 180, DFDA.

^[19] The then Lieutenant General Angus Campbell AO, DSC, Chief of Army, Australian Defence Force, statement to Mr Chris Masters, rendered in the first person from the third person version quoted in, C Masters, No Front Line – Australia's Special Forces War in Afghanistan, Allen & Unwin 2017, p xi.

^[20] s 146, DFDA.

^[21] Randall v Chief of Army [2018] ADFDAT 3.

^[22] s 137, DFDA.

^[23] ss 152 and 153, DFDA.

^[24] s 20, Appeals Act.

^[25] s 23, Appeals Act.

^[26] s 18, Appeals act.

^[27] s 52, Appeals Act.

^[28] s 33(3), Federal Court of Australia Act 1976 (Cth). Li v Chief of Army (2013) 250 CLR 328 offers an example of a DFDA proceeding which progressed to the High Court.

^[29] s 8, Appeals Act

^[30] Administrative Arrangements Order, 19 April 2018, p. 5: https://www.pmc.gov.au/resource-centre/government/administrative-arrangements-order-19-april-2018 Accessed, 11 November 2018.

^[31] s 40(1), Appeals Act.

^[32] s 11, Appeals Act.

^[33] Under s 188GE, DFDA, the DMP may give directions as to which service offences or class of service offences are to be referred to him for institution of proceedings.

^[34] As to the DMP's appointment and tenure, see Division 2 of Part X1A, DFDA.

^[35] As to the functions of the DMP, see s 188G, DFDA.

^[36] s 24(1)(c), Defence Regulation.

^[37] s 6(2), Defence Regulation.

^[38] s 24(2), Defence Regulation.

^[39] Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220.

^[40] Under either or each of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) or s 39B(1A) of the Judiciary act 1903 (Cth). See, for example, in relation to an application under the ADJR Act, Chief of the Defence Force v Gaynor (2017) 246 FCR 298 (Gaynor); see also Martincevic v Commonwealth (2007) 164 FCR 45 (Martincevic), which was brought under both the ADJR Act and s 39B of the Judiciary Act.

^[41] s 5, ADJR Act.

^[42] Gaynor, at [103].

^[43] Martincevic offers an example of a successful challenge of a termination decision on judicial review but the defence member succeeded solely because the delegate had not taken into account a relevant consideration in making the decision. The case is not an example of a successful challenge to the reasonableness of an evaluative judgement as to whether retention of the defence member was "in the interests of the Defence Force".

^[44] Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J; see also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] per Gummow J.

^[45] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [131] per Crennan and Bell JJ.

^[46] For a helpful summary of pertinent authority, see, recently, Menon v Minister for Immigration and Border Protection [2018] FCA 1497 at [12] et seq per Flick J.

^[47] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at 625, [67] per McHugh J.

^[48] Under Part 7 of the Defence Regulation.

^[49] As to the previous redress system, see Millar v Bornholt (2009) 177 FCR 67.

^[50] As to the appointment and functions of the Inspector-General, see Part VIIIB, Defence Act.

^[51] Millar v Bornholt.

^[52] s 45, Defence Regulation.

^[53] Millar v Bornholt.

^[54] See, for example, R v Army Council; Ex parte Ravenscroft [1917] 2 KB 504.

^[55] White v Director of Military Prosecutions (2007) 231 CLR 570, at [37] (White v DMP).

^[56] s 190(2), DFDA.

^[57] s 63, DFDA.

^[58] Alexandra Back, "ADFA cadet Jack Toby Mitchell not guilty of rape", The Canberra Times, 5 July 2017. https://www.canberratimes.com.au/national/act/jury-finds-adfa-cadet-jack-toby-mitchell-not-guilty-of-rape-20170705-gx5640.html Accessed, 11 November 2018.

^[59] King v Chief of Navy [2013] ADFDAT 3.

^[60] Randall v Chief of Army [2018] ADFDAT 3.

^[61] s 9, Defence Force Discipline Appeals Regulation 2016.

^[62] s 25, Defence Regulation.

^[63] Kieran Rooney, "Sacked Colonel Wants Answers From Morrison", Townsville Bulletin, 21 October 2016: https://www.townsvillebulletin.com.au/news/sacked-colonel-wants-answers-from-morrison/news-story/dab37beb1a89b9cfb492b5593a7851cf Accessed, 11 November 2018.

^[64] 29 August 2012 – Five soldiers killed in two separate incidents in 24 hours – three in a "green on blue" attack; two in a helicopter crash: Dylan Welch and Judith Ireland, "Five Australian soldiers killed in Afghanistan", Sydney Morning Herald, 30 August 2012: https://www.smh.com.au/politics/federal/five-australian-soldiers-killed-in-afghanistan-20120830-251og.html Accessed, 11 November 2018.

^[65] Parliament of Australia, Joint Standing Committee on Foreign Affairs, Defence and Trade, Completed Inquiry: From Phantom to Force: Towards a More Efficient and Effective Army, 4 September 2000, Chapter 7: https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jfadt/army/armych7.htm#17 . The cost of training to first appointment standard general service officers, also given in evidence at this committee hearing was much greater.

^[66] Director of Military Prosecutions Prosecution Policy, paragraph 1.4.

^[67] Ibid.

^[68] Murder of a Suspect – for a detailed account of events, trial and execution after court martial, see K Denton, Closed File, The True Story Behind the Execution of Breaker Morant and Peter Handcock, Rigby Publishers, 1983.

^[69] For details, see the comparative table annexed to this paper.

^[70] Ewa Kretowicz, "Detention rates falling in armed forces",

^[71] Army General Administrative Instruction 67 (AGAI 67), Vol 2, Chap 67, Administrative Action, para 67.04: https://assets.publishing.service.gov.uk/government/uploads/system/.../AGAI_067.pdf50303‐Edition 6.2 Accessed: 11 November 2018.

^[72] AGAI 67, para 67.05.

^[73] Joint Standing Committee on Foreign Affairs, Defence and Trade, Report 89, "Military Justice in the Australian Defence Force": https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Completed_Inquiries/jfadt/military/reptindx Accessed 11 November 2018.

^[74] Hearings Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 2d Sess. (1962), cited in R. 0. Everett, "Military Administrative Discharges – The Pendulum Swings", 1966 Duke Law Journal 41-97 : https://scholarship.law.duke.edu/dlj/vol15/iss1/4/ Accessed, 11 November 2018. (Everett).

^[75] Everett, supra.

^[76] Christopher H. Lunding, "Judicial Review of Military Administrative Discharges" (1973) 83 Yale L.J. 33: http://digitalcommons.law.yale.edu/ylj/vol83/iss1/2 Accessed, 11 November 2018.

^[77] Latisha Irwin, Justice in Enlisted Administrative Separations, 225 Mil. L. Rev. 35 (2017):

^[78] United States v. Tempia, 16 U.S.C.M.A. 629, 634, 37 C.M.R. 249, 254 (1967)

^[79] Georgina Mitchell, "Officer offers senator apology for phone threat", Sydney Morning Herald, 7 November 2018, pp 14-15.

^[80] In relation to federal offences prosecuted on indictment, those rights include the right to trial by jury: s 80, Constitution.

^[81] s 501(1) and 501(6)(c), Migration Act.

^[82] White v DMP.