Australian Military Law

Australian Military Law – An Overview

The team at Lawson Legal aspire to be experts in the field of military law. If you are in need of a military lawyer or think you may have a legal issue, it is best to seek advice from professionals who know your rights and understand the military justice system.

The military justice system is a generic term which covers functions such as discipline in the Australian Defence Force (ADF), administrative action to support ADF policy, inquiries to establish facts relevant to operation and command of the ADF, and the provisions for review and management of complaints.

The system is essential to ADF operational effectiveness and it complies with Commonwealth laws. Military members are subject to the same laws as apply to other Australians. The military justice system applies to all ranks. All ADF members have an interest in the success of the system.

The four components of the military justice system are:

1.) DISCIPLINE

In 1982 the Federal Government introduced the Defence Force Discipline Act 1982 (DFDA) as a part of Commonwealth law. This law became effective in 1985, and all ADF members are subject to it. The purpose of the DFDA is to maintain and enforce military discipline. The military justice system provides the ADF with an Australian legal framework able to be applied on operations anywhere in the world. This is essential because the ADF may conduct operations in countries where the civil system has broken down and no law applies. The discipline system includes safeguards such as automatic review of convictions; punishments and the right to an internal and external appeal. These safeguards are more extensive and rigorous than those available in the civilian criminal system.

2.) ADVERSE ADMINISTRATION

A high standard of professional conduct is expected of all ADF members. If professional conduct falls below standard, administrative action is taken. Administrative action includes counselling, formal warnings, censures, removal from command, and discharge from service.

3.) AN ADF MEMBER’S RIGHT TO COMPLAIN

There are several internal and external organisations to assist ADF members in making a redress or complaint. Usually members submit redress or other complaints through their commanding officer or chain of command. If this course of action is not appropriate, then members are able to seek other avenues for redress.

4.) ADMINISTRATIVE INQUIRIES

The Defence (Inquiry) Regulations 2018 (the Regulations) prescribe matters providing for, and in relation to, inquiries concerning the Defence Force. Inquiries under these Regulations are not ending in themselves. Their purpose is to facilitate the making of decisions relating to the Defence Force by providing the most important enabler of a good decision—accurate, reliable and timely information. The Regulations provide for two flexible inquiry formats: a Commission of Inquiry and an Inquiry Officer Inquiry. The former will be used for higher level matters that are particularly complex and sensitive, while the latter will be used to inquire into more routine matters.

DOES THE DEFENCE FORCE PROVIDE FREE LAWYERS?

Yes, the defence force employs a legal department to help members navigate through any legal issue that may arise. However, Defence Force Legal are not governed by the same legal professional conduct rules that civilian lawyers are governed by and as such, may provide advise that benefits defence more than it may benefit you.

Defence Force Legal

DEFENCE FORCE LEGAL

The defence force provides legal advice, services and support to the command and management of Defence on all aspects of law and the management of legal affairs and, secondly, provides legal advice to members of the ADF.

Proceedings for serious service offences are held before court martial or defence force magistrates. These proceedings are headed by civilian judicial officers, who are also serving members of the military (usually reservists). These service tribunals have broadly the same rules of evidence, procedure and protections for the accused – as in civilian courts. Court martials consist of a judge advocate and a panel of military officers, who are called the members of the court. The judge advocate’s role is to make rulings on questions of law and procedure. The members of the court make findings of fact and determine punishment. The service tribunals’ decisions are subject to review by the chain of command and can be appealed to the Defence Force Discipline Appeals Tribunal.

The team at Lawson Legal has experience in all facets of the military justice discipline. Our team has members who have over 20 years military service between them and we actively do our best to help all veterans. Our team has been involved in the Defence Abuse Response Taskforce (DART) process involving reparation to the highest level. In addition, we also have extensive knowledge of the Military Rehabilitation and Compensation Act (MRCA) involving permanent impairment compensation to the maximum payout (80 points) and the Department of Veteran Affairs (DVA) process.

DEFENCE ABUSE RESPONSE TASKFORCE (DART) SCHEME REVISED

The government has opened the window for historic abuse survivors to apply for reparation payments and other support through the Defence Force Ombudsman. This is an expanded complaint window with the Defence Force Ombudsman’s Office that allows for abuse survivors who missed out on the DART scheme, to access reparation and other means of support.

MILITARY REHABILITATION AND COMPENSATION ACT (MRCA)

The Military Rehabilitation and Compensation Act 2004 (MRCA) provides rehabilitation and compensation coverage for the following members of the Australian Defence Force (ADF) who served on or after 1 July 2004:

  • All members of the Permanent Forces;
  • All members of the Reserve Forces;
  • Cadets and Officers, including instructors of Cadets;
  • Persons who hold an honorary rank or appointment in the ADF and who perform acts at the request or direction of the Defence Force;
  • Persons who perform acts at the request or direction of the Defence Force as an accredited representative of a registered charity;
  • Persons who are receiving assistance under the Career Transition Assistance Scheme (established under section 58B of the Defence Act 1903) and who perform acts in connection with the scheme; and
  • Other people declared in writing by the Minister for Defence to be members of the ADF.
  • Permanent impairment compensation is paid for the functional loss, pain, suffering and the lifestyle effects resulting from injury or disease accepted as related to your MRCA service. Permanent impairment compensation is calculated based on the degree of impairment and the lifestyle effects of your accepted conditions using the Guide to Determining Impairment and Compensation (GARP).
  • Incapacity payments are payments for economic loss if you can’t work or have a reduced capacity to work because of an injury or disease accepted as service related under the MRCA. Incapacity payments can be made to current serving and former Permanent and Reserve ADF members, cadets, cadet officers and instructors and declared members who are incapacitated for service or work as a result of an injury or disease for which liability has been accepted. These payments are generally taxable as they are income-related payments. In some circumstances payments may be exempt from taxation when the payments they are replacing were also exempt from taxation. Incapacity payments are also offset (i.e. reduced) by the employer-funded portion of any Commonwealth superannuation you may be receiving.
  • Special Rate Disability Pension is an ongoing payment that can be made to an eligible former member instead of incapacity payments. SRDP is not automatically granted. If a former member becomes eligible for SRDP he or she will be offered the choice between SRDP or continuing to receive incapacity payments.The SRDP is offset by any MRCA and Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) permanent impairment compensation, Veterans’ Entitlements Act 1986 (VEA) disability pension and/or the employer-funded portion of any Commonwealth superannuation you may be receiving.
  • Wholly dependent partners of deceased members may be entitled to:
    • the wholly dependent partner’s pension (which can be paid as either a periodic payment, a lump sum or a combination of both);
    • additional compensation where liability is accepted for the person’s death;
    • a Gold Card for the treatment of all conditions;
    • a MRCA supplement;
    • bereavement payments;
    • reimbursement for the costs of providing a funeral for the deceased up to a maximum statutory amount (which is the same rate as provided under the DRCA); and
    • compensation for the cost of obtaining financial and legal advice.
      Compensation is also payable for eligible young persons (EYP) of deceased members.
      An EYP may be entitled to:

      • a lump sum payment;
      • periodic compensation (for as long as they remain an EYP);
      • a Gold Card to meet the cost of medical treatment; and
      • access to the Military Rehabilitation and Compensation Act

CONTACT LAWSON LEGAL

Should you, or anyone you know, require any assistance in relation to military justice matters or any other criminal matters, contact Lawson Legal for your free initial consultation with one of our experienced criminal lawyers.

Written by Jared Buckingham