Commonwealth Consolidated Acts

DEFENCE FORCE DISCIPLINE ACT 1982

TABLE OF PROVISIONS

           Long Title

   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
           SCHEDULE 5
           SCHEDULE 6 Alternative offences