Reconsidering Summary Discipline Law
Cavanagh, Bryan, Devereux, John, University of Queensland Law Journal
Commanders use the summary discipline system on a daily basis. The system is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. It must operate quickly, be as simple as possible and it must be capable of proper, fair and correct application by persons who do not possess legal qualifications. (1)
Military justice should be efficient, speedy and fair. (2)
The summary discipline system is the primary mechanism for dealing with service offences (3) in the Australian Defence Force (ADF). Despite this, recent law reform efforts have tended to focus on other aspects of the military justice system. This paper argues that the summary discipline system could be updated to more closely align it with the requirements of military discipline. Two proposed changes are put forward as a starting point for reform. Firstly, making summary trials inquisitorial in nature, and secondly reducing the system's reliance on the principles of criminal law for its operation.
Part I of the paper will establish a set of criteria for an effective summary discipline system. Part II goes on to describe the adversarial nature of the current system and explain how the current system relies heavily on principles derived from criminal law. The paper then examines how the current system measures up to the criteria established in part one. Part III is about reforming the system. It identifies the freedom that exists to make fundamental changes to the system, details proposed reforms, and explains how these reforms align with the criteria for an effective summary discipline system.
For the purposes of context, the paper will start by providing a brief outline of the framework of service tribunals established by the Defence Force Discipline Act 1982 (Cth) (DFDA), and demonstrate empirically why the summary discipline system is integral to the operations of the ADF.
A The system of service tribunals and why the summary discipline system matters
Part VII of the DFDA establishes different levels of service tribunals (4) to hear service offences. There are two categories. The first consists of Courts Martial (5) and Defence Force Magistrates (DFM). (6) These superior military tribunals generally deal with serious service offences. A characteristic of these tribunals is the involvement of lawyers. (7) The second consists of Summary Authority Tribunals. (8) Typically, Summary Authority Tribunals sit at the unit level and deal with minor disciplinary offences. There are three classes of Summary Authority; Subordinate Summary Authority (9); Commanding Officer (10, 11), and Superior Summary Authority." A characteristic of all Summary Authority Tribunals is, by and large, the lack of involvement of lawyers. (12) The operation of Summary Authority Tribunals is often referred to as the summary discipline system, a term adopted by this paper.
The chart below shows the number of trials conducted by these two categories of service tribunals since 2000. (13) Trials by the Australian Military Court (AMC) during its period of operation (14) have been incorporated into the Courts Martial/DFM statistics. (15)
The statistics reveal that the summary discipline system is the forum at which most ADF members will be heard with when charged with a service offence. ADF commanders, not Defence Force Magistrates, Judge Advocates or members of Courts Martial will make the majority of decisions about the law and facts in military trials. Corporals, sergeants and junior officers will appear far more frequently as prosecuting and defending officers' before a Summary Authority tribunal, than legal officers as advocates before a Superior Military Tribunal.
Much of the focus on law reform and judicial consideration of the operation of the discipline system has focused on the operation of the Superior Military Tribunals. …