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Civilian Sentencing Principles in Summary Military Discipline Proceedings

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The Need for Reform?

image of Journal of International Peacekeeping

The Australian Defence Force (ADF) has had a number of inquiries or reviews into its military justice system in the past two decades. The recommendations of those inquiries have led to an increasing ‘civilianisation’ of the military discipline system. Nowhere is this more apparent than in the specific requirement of section 70 of the Defence Force Discipline Act (DFDA) which requires sentencing authorities to explicitly consider ‘civilian’ sentencing principles. Given that the vast majority of ADF personnel plead guilty during summary hearings, it is the sentencing process that is the most critical exercise of legal principles in the summary jurisdiction. The requirement to explicitly consider civilian sentencing principles, where such principles are not defined in the DFDA, and are hotly contested amongst highly educated and experienced civilian lawyers, is impractical, inappropriate and does not serve what should be the fundamental purpose of the DFDA: the maintenance of service discipline. This paper will discuss the difficulties of the current ‘civilianisation’ of the sentencing process and will propose potential guidelines for legislative reform of section 70 of the DFDA, particularly in relation to summary authority hearings.

Affiliations: 1: Australian Defence Force


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