The military justice system in Australia is made up of four components:

• administrative action;
• administrative inquiries;
• discipline of the Australian Defence Force (ADF); and
• complaint procedures that allow ADF members a right of grievance.

The ADF consists of the Royal Australian Navy, the Australian Army and the Royal Australian Air Force. Members from each of these forces are subject to the same laws as ordinary Australians but are also subject to the military justice system. This system is necessary in order to ensure the operational effectiveness of the ADF.

Administrative action ensures that all ADF members observe the highest standard of behaviour. If an ADF member’s behaviour falls below this standard then administrative action is taken. This may include warnings, counselling, censures, demotion or dismissal from the service. 

Administrative inquiries further enhance ADF operational effectiveness by investigating and establishing facts after an adverse event. Inquiries prevent similar occurrences from happening in the future and are a means by which reforms happen in the ADF. They are also a means of protecting members of the ADF. Inquiries are conducted internally by either ADF members or specially appointed civilians, and reports or findings of the inquiry are generally not made public to protect the privacy of witnesses and encourage openness and frankness of participants. The primary focus is fact-finding and it is not meant to incriminate or place blame on an ADF member.

Disciplinary rules are necessary to maintain and enforce the high standards of behaviour expected of ADF members. All ADF members are subject to the Commonwealth Defence Force Discipline Act 1982 (DFDA). This legislation (written law) sets out the rules of military discipline. There is also the Defence Force Discipline Appeals Act 1955 (Commonwealth) which provides an appeal process for military personnel concerning decisions made by a court martial to a special military tribunal.

The DFDA makes laws for offences that are uniquely military in nature or that occur in a military environment such as failing to carry out orders. The DFDA also includes other criminal offences not unique to the military such as murder and rape.

Breaches by ADF members are prosecuted primarily within the military justice system through a chain of command:

• Discipline Officers deal with minor offences such as sleeping at your post, absence without leave and disobeying a command.
• Commanding Officers deal with charges for offences committed by ADF members who are two or more ranks junior to them. Commanding officers may also refer the matter to a Convening Officer, who may decide to bring the matter before a court martial or Defence Force Magistrate.
• Summary authorities may deal with all offences under the DFDA and may give the accused the option of electing to have their charge brought before the Defence Force Magistrate or court martial.
• Defence Force Magistrates are legal officers who try offences under the DFDA.
• A court martial consists of a panel of ADF members and Judge Advocate who is a legal officer serving with the ADF.

Offences not unique to the military such as murder and rape are generally referred to civilian authorities such as the police.

All ADF personnel are required to maintain the highest level of discipline at all times. The military discipline system allows for processes for the investigation of alleged offences, the conduct of fair and reasonable trials and access to free legal advice. The system also includes automatic review of convictions and punishments and rights of review or appeal.

ADF members may make complaints through their commanding officer or chain of command. If this option is not appropriate then they may make a complaint through an internal body such as the Inspector General ADF or an external body such as the Defence Force Ombudsman. ADF members may also seek administrative review of decisions by the civil courts.

This Legal Guide on Courts Martial provides readers with information about the military justice system. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you.

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Warning: Information provided through LegalEagle™ is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.