Wing Commander Ian Henderson (paper prepared jointly with Mr John Palumbo) Director Military Law Centre & Deputy Dir

1. Crossing Borders: Promoting RegionalLaw Enforcement Cooperation —European, Australian and Asia-Pacific PerspectivesJurisdiction under theDefence Force Discipline Act 1982 Wing Commander Ian Henderson (paper prepared jointly with Mr John Palumbo) Director Military Law Centre &Deputy Director Asia-Pacific Centre for Military Law April 2009

2. Scope • The nature of jurisdiction under the Defence Force Discipline Act 1982 (Cwlth) • Jurisdictional overlap with criminal jurisdiction • How the overlap is managed at the prosecutorial level • How jurisdictional issues are addressed when a Defence Force member is overseas

6. Defence Force Discipline Act – Service offences • Creates uniquely military offences • Disobey a lawful command, absent without leave • Creates hybrid military/civilian offences • Assault on a superior officer • Incorporates ‘civilian’ criminal offences • Cwlth offences and ACT law • Misuse of a Commonwealth Credit Card, Sexual assaults, Assault occasioning actual bodily harm

7. Defence Force Discipline Act – Service tribunals • Summary tribunals • Commanders (non-lawyers) preside • powers of punishment include fines of up to the equivalent of 28-days’ pay and detention in a military detention centre for up to 42 days. • In 2007, summary authorities conducted 2044 trials covering 2640 charges • All convictions and punishments subject to automatic internal review, and appeals to the Australian Military Court

8. Defence Force Discipline Act – Service tribunals (2) • Australian Military Court • Military judges and military juries • Can award up to life imprisonment • 89 trials in 2008 • Appeals to the Defence Force Discipline Appeals Tribunal (civilian judges)

9. Defence Force Discipline Act – Investigations • Authorises investigations and creates investigatory powers • Civil police have no direct investigatory powers • Service investigators can not enforce search warrants ‘off-base’ • Constables may execute arrest warrants • Persons under arrest may be detained at a civil detention facility

10. Military Discipline Exists to Support Operational Effectiveness

11. A significant Constitutional question To what extent can the federal parliament invest military authorities with the power to try conduct that also falls within the jurisdiction of civilian courts exercising criminal jurisdiction

12. The High Court’s answer • “proceedings may be brought … for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline”

13. Prosecutions • Director of Military Prosecutions (DMP) • Primarily concerned with Australian Military Court matters • DMP Prosecution & Disclosure policy • Similar to Cwlth and NSW DPP prosecution policy • Consent of the Cwlth DPP to prosecute certain offences, particularly: • treason, murder, manslaughter or bigamy; • sexual assaults

14. DMP Prosecution policy • Factors governing the decision to prosecute: • whether or not the admissible evidence is capable of establishing each element of the offence • whether or not there is a reasonable prospect of conviction • the effect of any decision to prosecute or proceed with a charge on the maintenance of discipline and the Service interests of the Defence Force • whether or not discretionary factors nevertheless dictate that charges should not be laid or proceeded with in the public interest

15. Defence Force members overseas • Possibly 3 competing jurisdictions • Status of Forces Agreements • Exclusive jurisdiction • Primary jurisdiction • Waivers of jurisdiction • Exercise of jurisdiction inside a 3rd nation • Investigatory • Service tribunals

16. Thank you