DEFENCE FORCE DISCIPLINE ACT 1982 - NOTES

DEFENCE FORCE DISCIPLINE ACT 1982 - NOTES

No. 152, 1982

Compilation No. 36

Compilation date: 28 November 2023

Includes amendments up to: Act No. 98, 2023

Registered: 13 December 2023

About this compilation

This compilation

This is a compilation of the Defence Force Discipline Act 1982 that shows the text of the law as amended and in force on 28 November 2023 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part I--Preliminary

1 Short title

2 Commencement

3 Interpretation

3A Character of service offences

4 Declaration of active service for disciplinary purposes

5 Commanding officers for disciplinary purposes

5A Appointment of superior authority

6 Further provision with respect to certain members of the Defence Force

7 Prisoners of war

8 Extension to external Territories

9 Extra-territorial operation of Act

Part IA--Disciplinary infringements

Division 1--Introduction

9A Simplified outline of this Part

9B Object of this Part

Division 2--Key provisions

9C Election to be dealt with under the infringement scheme

9CA Prescribed defence member

Division 3--Disciplinary infringement provisions

Subdivision A--Key concepts

9D When a disciplinary infringement is committed

Subdivision B--Minor disciplinary infringement provisions

9DA Disciplinary infringement provision--absent from duty

9DB Disciplinary infringement provision--absent without leave not exceeding 3 hours

9DC Disciplinary infringement provision--disobeying a lawful command

9DD Disciplinary infringement provision--failing to comply with a general order

9DE Disciplinary infringement provision--member on guard or on watch

9DF Disciplinary infringement provision--failure to perform duty or carry out activity

9DG Disciplinary infringement provision--prejudicial conduct

Subdivision C--Disciplinary infringement provisions only within jurisdiction of senior discipline officers

9DH Disciplinary infringement provision--absent without leave not exceeding 24 hours

9DI Disciplinary infringement provision--insubordinate conduct

9DJ Disciplinary infringement provision--creating a disturbance etc.

9DK Disciplinary infringement provision--insulting or provocative words

9DL Disciplinary infringement provision--unauthorised discharge of weapon

9DM Disciplinary infringement provision--negligent discharge of weapon

9DN Disciplinary infringement provision--intoxicated while on duty etc.

9DO Disciplinary infringement provision--driving a service vehicle for unauthorised purpose

9DP Disciplinary infringement provision--driving without due care or attention etc.

Division 4--Election to be dealt with under the infringement scheme

9E Infringement officer may give infringement notice

9EA Election may be withdrawn

9EB Member is taken to have admitted the infringement only for the purpose of being dealt with under the infringement scheme

9EC Consequence of no election or withdrawing election

Division 5--Dealing with disciplinary infringements

9F Jurisdiction to deal with a disciplinary infringement

9FA Procedure in dealing with disciplinary infringements

9FB Decisions that may be made by discipline officers or senior discipline officers in dealing with disciplinary infringements

9FC Commencement of punishments

Division 6--Command review of decisions of senior discipline officers

9G Command review of decisions of senior discipline officers

Division 7--Discipline officers, senior discipline officers and infringement officers

9H Appointment of discipline officers and senior discipline officers

9HA Appointment of infringement officers

Division 8--Miscellaneous

9J Consequences of punishments

9JA Monthly report by discipline officers and senior discipline officers

9JB Records relating to disciplinary infringements

Part II--Criminal liability

10 Application of the Criminal Code

11 Recklessness and negligence in relation to a member of the Defence Force

14 Act or omission in execution of law etc.

Part III--Offences

Division 1--Offences relating to operations against the enemy

15 Abandoning or surrendering a post etc.

15A Causing the capture or destruction of a service ship, aircraft or vehicle

15B Aiding the enemy while captured

15C Providing the enemy with material assistance

15D Harbouring enemies

15E Offences relating to signals and messages

15F Failing to carry out orders

15G Imperilling the success of operations

16 Communicating with the enemy

16A Failing to report information received from the enemy

16B Offence committed with intent to assist the enemy

17 Leaving a post, abandoning equipment or otherwise failing to perform duty

18 Endangering morale

19 Conduct after capture by the enemy

Division 2--Mutiny, desertion and unauthorised absence

20 Mutiny

21 Failing to suppress mutiny

22 Desertion

23 Absence from duty

24 Absence without leave

Division 3--Insubordination and violence

25 Assaulting a superior officer

26 Insubordinate conduct

27 Disobeying a lawful command

28 Failing to comply with a direction in relation to a ship, aircraft or vehicle

29 Failing to comply with a general order

30 Assaulting a guard

31 Obstructing a police member

32 Person on guard or on watch

33 Assault, insulting or provocative words etc.

33A Assault occasioning actual bodily harm

34 Assaulting a subordinate

Division 4--Offences relating to performance of duty

35 Negligence in performance of a duty

35A Failure to perform duty or carry out activity

36 Dangerous conduct

36A Unauthorised discharge of weapon

36B Negligent discharge of weapon

37 Intoxicated while on duty etc.

38 Malingering

Division 5--Offences relating to ships, vehicles, aircraft and weapons

39 Loss of, or hazard to, service ship

40 Driving while intoxicated

40A Dangerous driving

40C Driving a service vehicle for unauthorised purpose

40D Driving without due care or attention etc.

41 Low flying

42 Inaccurate certification in relation to ships, aircraft, vehicles etc.

Division 5A--Property offences

Subdivision A--Service property offences

43 Destroying or damaging service property

44 Losing service property

45 Unlawful possession of service property

Subdivision B--Possession of property suspected of having been unlawfully obtained

46 Possession of property suspected of having been unlawfully obtained

Subdivision C--Fraudulent conduct

47 When property belongs to a person

47A Dishonesty

47B Determination of dishonesty to be a matter for the trier of fact

47C Theft

47D Special rules about the meaning of dishonesty

47E Appropriation of property

47F Theft of land or things forming part of land

47G Trust property

47H Obligation to deal with property in a particular way

47J Property obtained because of fundamental mistake

47K Property of a corporation sole

47L Property belonging to 2 or more persons

47M Intention of permanently depriving a person of property

47N General deficiency

47P Receiving

47Q Unauthorised use of Commonwealth credit card

Subdivision D--Looting

48 Looting

Division 5B--Cyber-bullying offences

48A Cyber-bullying

48B Failure to comply with removal order

Division 6--Arrest, custody and proceedings before service tribunals

49 Refusing to submit to arrest

49A Assault against arresting person

50 Delaying or denying justice

51 Escaping from custody

52 Giving false evidence

53 Contempt of service tribunal

54 Unlawful release etc. of person in custody

Division 6A--Custodial offences

54A Custodial offences

Division 7--Miscellaneous offences

55 Falsifying service documents

56 False statement in relation to application for a benefit

56A Failure to comply with requirement to notify change in circumstances

57 False statement in relation to appointment or enlistment

58 Unauthorised disclosure of information

59 Dealing in or possession of prohibited drugs

60 Prejudicial conduct

Division 8--Offences based on Territory offences

61 Offences based on Territory offences

Division 9--Miscellaneous

62 Commanding or ordering a service offence to be committed

63 Consent for proceedings for certain offences

64 Punishment for ancillary offences

Part IV--Punishments and orders

66 Punishment or order to be in respect of a particular conviction

68 Scale of punishments

68A Scale of custodial punishments

68C Custodial punishments may be imposed for certain non-custodial service offences

69 Punishment not to be more severe than maximum punishment

69A Punishments that may be imposed by a court martial or a Defence Force magistrate

69B Punishments that may be imposed by a superior summary authority

69C Punishments that may be imposed by a commanding officer

70 Sentencing principles

71 Restrictions on power to impose punishments

72 Application of certain provisions of Crimes Act 1914

73 Imposition of fines

74 Concurrent or cumulative punishments

75 Conviction without punishment

76 Breach of undertaking to be of good behaviour

77 Taking other offences into consideration

78 Suspension of detention

79 Suspension of fines

80 Revocation of suspension of punishment

81 Remission of suspended punishment

82 Remission of punishment of detention on imprisonment

83 Restitution orders

84 Reparation orders

84A Removal order--cyber-bullying offence

85 Payment of fines

Part V--Summons, arrest, custody and suspension from duty

86 Interpretation

86A Oaths, affirmations and affidavits

87 Summons and order in the nature of summons

88 Arrest, summons etc. where accused person not present at hearing before service tribunal

89 Arrest without warrant

90 Arrest under warrant

91 Power to enter to make arrest

92 Use of force in making arrest

93 Persons to be informed of grounds of arrest

94 Civil detention of arrested person

95 Avoidance of delay after arrest

95A Search of persons in custody in custodial facilities

96 Time limitation on charges

97 Release from custody

98 Suspension from duty on suspicion of offence etc.

99 Suspension from duty after conviction

100 Effect of custody or suspension from duty

Part VI--Investigation of service offences

Division 1--Preliminary

101 Interpretation

101AA Oaths, affirmations and affidavits

Division 2--Duties of investigating officers when interviewing suspects

101A Interpretation

101B Investigating officer may question persons

101C Questioning and cautioning of person in custody

101D Cautioning once decision to charge or summon has been made

101E Access to friend, relative and legal practitioner

101F Lists of legal officers

101G Exceptions to requirements of section 101E

101H Treatment of persons in custody

Division 3--Confessions

101J Admissibility of confessional evidence

101JA Tape recording of confessions and admissions

101K Admissibility of oral confessions

Division 4--Other investigative action

101L Fingerprints, photographs etc.

101M Identification by means of photographs

101N Identification parades

101P Searches of arrested persons

101Q Medical examinations

101QA Offence of refusing to submit to medical examination etc.

101R Application of Division

Division 5--Rights of persons charged with service offences

101S Persons to be cautioned

101T Questioning of persons charged with service offences

101U Persons charged with same service offence

Division 6--Search and seizure

101V Interpretation

101W Search and seizure

101X Search warrants

101Y Search warrants may be granted by telephone

101Z Searches in emergencies

101ZA Consent to search

Division 6A--Investigation under the Regulatory Powers Act

101ZAA Simplified outline of this Division

101ZAB Basic investigation powers under Part 3 of the Regulatory Powers Act

101ZAC Modifications of Part 3 of the Regulatory Powers Act

101ZAD Appointment of persons under this Division

101ZAE No limit on other powers

Division 7--Exclusion of evidence

101ZB Exclusion of evidence illegally obtained

Division 8--Application of Part

101ZC Application of Part

Part VII--Service tribunals

Division 1--Director of Military Prosecutions

103 Courses open to Director of Military Prosecutions

Division 2--Summary authorities

104 Interpretation

105 Appointment of superior summary authorities

105A Referral of charge to Director of Military Prosecutions before dealing with charge under section 109 or 110

106 Jurisdiction of superior summary authority

107 Jurisdiction of commanding officer

108A Disqualification of summary authority from trying a charge

109 Dealing with a charge by superior summary authority

110 Dealing with a charge by commanding officer

111A Proceedings by way of dealing with a charge

111B Accused person may elect to be tried by a court martial or Defence Force magistrate--election before commencement of trial

111C Decision by accused person whether to elect to be tried by a court martial or Defence Force magistrate--decision before commencement of trial

112 Discontinuance

113 Powers of officer in command of detachment

Division 3--Courts martial

114 Types of court martial

115 Jurisdiction of court martial

116 Eligibility to be member of court martial

117 Eligibility to be judge advocate

118 Remuneration of judge advocate of court martial

119 Convening order

120 Convening order to be notified to accused person

121 Objection on ground of ineligibility etc.

122 Notification of belief of bias

123 Substitution of members etc.

124 Replacement of members etc.

125 Dissolution of court martial

126 Inability to attend after plea

Division 4--Defence Force magistrates

127 Appointment of Defence Force magistrates

127A Remuneration of Defence Force magistrate

128 Oath or affirmation of Defence Force magistrate

129 Jurisdiction and powers of Defence Force magistrate

129A Discontinuance of proceedings before Defence Force magistrate etc.

Division 5--Nomination of Defence Force magistrates and members of courts martial

129B Appointment of members of courts martial

129C Judge Advocate General to nominate Defence Force magistrates

Part VIII--Procedure of service tribunals

Division 1--Trial by summary authority

129D Time within which trial must be commenced

130 Trial by summary authority

131 Accused person may elect to be tried by a court martial or Defence Force magistrate--election during trial

131AA Decision by accused person whether to elect to be tried by a court martial or Defence Force magistrate--decision during trial

131A Reference of charge to Director of Military Prosecutions

Division 2--Trial by court martial or Defence Force magistrate

132 Trial by court martial

133 Determination of questions by court martial

134 Powers of judge advocate

135 Trial by Defence Force magistrate

136 Representatives of parties before court martial or Defence Force magistrate

137 Representation of accused person

Division 3--General

Subdivision A--General provisions relating to trials

138 Procedural powers

139 Accused person to be present at hearing

140 Public hearings

141 Applications and objections

141A Amendment of charges

142 Alternative offences

143 Condonation no bar to proceedings

144 Previous acquittal or conviction

145 Unsoundness of mind

145A Notice of alibi

146 Rules of evidence

146A Evidence etc. in proceedings before a summary authority

147 Judicial notice of service matters

148 Record of proceedings to be kept

Subdivision B--Use of video links and audio links by courts martial and Defence Force Magistrates

148A Testimony by video link or audio link

148B Appearance of persons or submissions made by video link or audio link

148C Conditions for use of video links and audio links

148D Putting documents to a person by video link or audio link

148E Administration of oaths and affirmations

148EA Powers conferred on President

148F New Zealand proceedings

Subdivision C--Rules of procedure for service tribunals

149 The Summary Authority Rules

149A The Court Martial and Defence Force Magistrate Rules

Part VIIIA--Review of proceedings of service tribunal

Division 1--Appointment of reviewing authorities

150 Appointment of reviewing authorities

150A Meaning of competent reviewing authority

Division 2--Review by reviewing authority

152 Automatic review by reviewing authority

153 Review on petition to reviewing authority

154 Report to be obtained before commencement of review

155 Further review

156 Effect on reviews of appeals to Defence Force Discipline Appeal Tribunal

Division 3--Action on review of proceedings that have resulted in a conviction

157 Interpretation

158 Quashing of conviction etc.

159 Person deemed to have been acquitted

160 New trial

161 Substitution of conviction of alternative offence

162 Review of action under Part IV

Division 4--Action on review of proceedings that have resulted in an acquittal on the ground of unsoundness of mind

163 Interpretation

164 Quashing of prescribed acquittal etc.

165 Person deemed to have been acquitted

166 New trial

Division 5--Action on review of certain punishments and orders that are subject to approval by reviewing authority

167 Interpretation

168 Approved punishment or order to take effect as determined

169 Punishments or orders not approved to be quashed or revoked

Part X--Execution and enforcement of punishments and orders

170 Warrants of commitment

171 Commencement of punishments and orders

172 Punishments and orders subject to approval

173 Suspension of operation of restitution orders and reparation orders

174 Recovery of fines etc.

175 Evidence of fine etc.

176 Stay of execution of punishment

177 Unlawful absence

Part XA--Detainees and detention centres

178 Interpretation

178A Search of detainees

178B Fingerprints, photographs etc. of detainees

178C Leave of absence of detainees

178D Regulations relating to detention centres

Part XI--Judge Advocate General, Deputy Judge Advocates General, Chief Judge Advocate, and Registrar of Military Justice

Division 1--Judge Advocate General and Deputy Judge Advocates General

179 Judge Advocate General and Deputy Judge Advocates General

180 Qualifications for appointment

181 Appointment of Judge Advocate General or Deputy Judge Advocate General not to affect tenure etc.

182 Arrangement for appointment of the holder of a judicial office of a State or of the Northern Territory

183 Terms and conditions of appointment etc.

184 Oath or affirmation of Judge Advocate General and Deputy Judge Advocate General

185 Remuneration etc.

186 Termination of appointment

187 Resignation

188 Acting Judge Advocate General or Deputy Judge Advocate General

Division 2--Chief Judge Advocate

188A Chief Judge Advocate

188AA Terms and conditions of appointment

188B Role of the Chief Judge Advocate

188C Eligibility requirements

188CA Oath or affirmation

188D Resignation

188E Remuneration

188EA Termination of appointment

188EB Acting appointments

Division 2A--Deputy Chief Judge Advocate

188EC Deputy Chief Judge Advocate

188ED Terms and conditions of appointment

188EE Role of Deputy Chief Judge Advocate

188EF Eligibility requirements

188EG Oath or affirmation

188EH Resignation

188EI Remuneration

188EJ Termination of appointment

Division 3--The Registrar of Military Justice

188F Registrar of Military Justice

188FA Functions of the Registrar

188FB Appointment of the Registrar

188FC Qualifications for appointment

188FD Tenure

188FE Resignation

188FF Oath or affirmation

188FG Remuneration

188FH Leave of absence

188FI Outside employment

188FJ Termination of appointment

188FK Standing obligation to disclose interests

188FL Acting appointments

188FM Delegation

Part XIA--Director of Military Prosecutions

Division 1--Establishment and functions of the Director of Military Prosecutions

188G Director of Military Prosecutions

188GA Functions of the Director of Military Prosecutions

188GB Appearances by and on behalf of Director of Military Prosecutions

188GC Right of Director of Military Prosecutions and staff to practise in their official capacity

188GD Undertakings by the Director of Military Prosecutions

188GE Directions and guidelines by the Director of Military Prosecutions

Division 2--Administrative provisions about the Director of Military Prosecutions

188GF Appointment of the Director of Military Prosecutions

188GG Qualifications for appointment

188GH Tenure

188GI Resignation

188GJ Oath or affirmation

188GK Remuneration

188GL Leave of absence

188GM Outside employment

188GN Termination of appointment

188GO Standing obligation to disclose interests

188GP Acting appointments

188GQ Staff

Division 3--Other matters

188GR Delegation

Part XII--Miscellaneous

189 Royal prerogative of mercy

190 Jurisdiction of civil courts in relation to offences

190A Disclosing certain convictions of service offences by a court martial or a Defence Force magistrate

190B Disclosing certain convictions by a summary authority, a court martial or a Defence Force magistrate

191 Evidentiary certificate

192 Evidence of warrant of commitment

193 Protection of members of courts martial etc.

194 Persons found to be of unsound mind

194A Persons required as witnesses before service tribunals

195 Supply of record of proceedings

196 Judge advocates' panel

196AA Termination of appointment to judge advocates' panel

196AB Resignation

196A Annual report relating to Defence Force discipline law

196B Annual report relating to the operations of the Director of Military Prosecutions

197 Regulations

Schedule 1A--Certain disciplinary offences

Schedule 4  330

Schedule 5  331

Schedule 6--Alternative offences

Endnotes

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

Endnotes

Endnote 1--About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

Abbreviation key--Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history--Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section  15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and "(md not incorp)" is added to the amendment history.

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history