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The Role of the Commander in Military Criminal Procedure Presentation to the 6th Budapest International
Military Law Conference
The Defence Force Discipline Act 1982 (Cth) (DFDA) established a uniform system of military justice for the three armed services in Australia. Some proposed changes to the DFDA are currently before the Australian Parliament. The most important of these is the establishment of a Director of Military Prosecutions (DMP). Like the corresponding Director of Public Prosecutions in State and Federal criminal jurisdictions in Australia, this office will enhance the actual and perceived independence of the prosecuting function. However the DFDA confers some disciplinary functions on the commanding officer and this role will not be substantially affected by the amendments. For the purposes of exercising powers under the DFDA, a commanding officer is an officer appointed as such by a Chief of Staff: s 5, or an officer performing the duties and functions of a commanding officer by virtue of a Defence Instruction: s 3(11). Under the DFDA the service tribunals with jurisdiction to try charges are, in descending order of importance, as follows. First, courts martial. These may be either a general court martial (President and not less than four other members) or a restricted court martial (President and not less than two other members): s 114. Both forms of court martial can try any charge under the DFDA, but a restricted court martial cannot impose a sentence of more than 6 months imprisonment: sch 2. A judge advocate sits with the court martial. The judge advocate's directions on matters of law are binding on the President and members. Secondly, there are Defence Force magistrates (DFM). These have the same jurisdiction and powers as a restricted court martial. Generally DFMs are practising lawyers who hold commissions in one of the reserve armed forces. Thirdly, there are summary authorities. The Chief of the Defence Force or a Service Chief may appoint an officer to be a superior summary authority: s 105(1). A commanding officer may appoint an officer to be a subordinate summary authority: s 105(2). A superior summary authority has jurisdiction to try a charge against an officer who is two or more ranks junior to him or her, being an officer of or below the rank of lieutenant-commander, major or squadron-leader or a warrant officer: s 106. A subordinate summary authority has jurisdiction over charges against members of the Defence Force who are not officers. Fourthly, a commanding officer has jurisdiction to try a charge against a member of the Defence Force who is two or more ranks junior to him or her, being a member of or below the rank of naval lieutenant, military captain or flight lieutenant. A commanding officer can only impose a penalty of detention on personnel below non-commissioned rank. In the case of the Navy the maximum period is 42 days. For the Army and Air Force the maximum is 14 days for an offence committed on active service and seven days otherwise. Finally, Pt IXA of the DFDA provides for special procedures relating to certain disciplinary infringements. Minor matters can be referred to a "Discipline Officer" appointed by a commanding officer with the defendant's consent for administrative disposal. Minor penalties may be imposed, for example a fine not exceeding one day's pay or stoppage of leave for not more than three days. The DFDA contains a system for internal reviews of convictions. There is also an external appeal (against conviction only) from a court martial or DFM to the Defence Force Discipline Appeal Tribunal. This is a panel of State and Federal judges (currently four in number) appointed under the Defence Force Discipline Appeals Act 1955 (Cth). A further appeal on a point of law lies from this Tribunal to the Federal Court of Australia and then, by special leave, to the High Court of Australia. A cornerstone of the Australian military justice system has been the "convening authority". This is an officer appointed by the Chief of the Defence Force or a Service Chief: s 102. The convening authority has no jurisdiction until such time as a matter is referred to him or her through the chain of command by a summary authority: s 103. The convening authority may direct that the charge be not proceeded with, or refer it to the superior summary authority or commanding officer for trial, or refer it to a DFM or convene a general or restricted court martial to try the charge. However the legislative amendments currently before Parliament will remove some of these multiple roles. It has been thought that the present powers of the convening authority involve a perceived conflict of interest. He or she can decide that a charge be laid and that it be heard by a DFM or court martial and then select the DFM or the members of the court martial. Turning to the specific issues on which the Conference would like to have a comparative view, the Australian position would be as follows. Apart from the specific functions conferred on commanding officers, the doctrine "those who command shall punish" does not find a place in the Australian system. On the contrary, even at the most minor disciplinary level, the general policy is to have the ascertainment of guilt and the fixing of penalty decided by an independent service tribunal. The introduction of the DMP will also be a move towards further independence in relation to prosecution. As to investigation, there is no formal role for the commanding officer. Part VI of the DFDA contains detailed provisions concerning investigations such as interviewing suspects, confessions, search and seizure etc. These govern the conduct of an "investigating officer" who is defined as an officer, warrant officer or non-commissioned officer engaged in the investigation of an offence: s 101. In practice, this work is usually done by naval, military or air force police. As already mentioned, the commanding officer has jurisdiction to deal with a charge. He or she may try the charge (if there is jurisdiction, something which depends on the relative ranks of the commanding officer and the defendant), direct that the charge not be proceeded with, or refer it to a superior summary authority or to a convening authority: s 110. It is the convening authority who will decide whether the charge goes before a court martial or DFM. The commanding officer may also, where it is desirable in the interests of justice or for any other reason, refer the charge to be dealt with by another commanding officer. When the matter goes to a court martial or DFM, the commanding officer has no say in the conduct of the prosecution, the convening of the court, the confirmation of judgment or the execution of punishment. As to diversion from the military system, this question in Australia arises in the context of a federal constitutional structure. Jurisdiction under the DFDA in peacetime with respect to offences which have an equivalent under the ordinary criminal law can only be exercised when the proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing military discipline. The constitutional source of military jurisdiction in Australia is the defence power and not the general judicial power under Chapter III of the Constitution (cf Article III of the United States Constitution). Also the Commonwealth (ie Federal) Director
of Public Prosecutions must consent to proceedings under the DFDA
being instituted for certain offences, including treason, murder,
manslaughter, bigamy or one of a number of stipulated sexual offences:
s 63. Usually such offences will be tried in the ordinary civilian
courts. |