Recent and historical High Court of Australia jurisprudence has identified the ability to legislate in regard to the ‘defence’ head of power (under s 51(vi)) without significant restriction. This has allowed the executive a particular freedom to create statutory provisions that enable Defence a wide mandate to defend Australia and its national interests. While this projection of power provides an excellent foundation for external projection of forces, significant weaknesses in legislative development are identified internally, specifically surrounding the Defence Force Discipline Act 1982 (Cth) (DFDA) and its investigative powers. This thesis offers a critical analysis and legislative framework for reform of Pts V and VI of the DFDA and how best to meet not only Defence expectations of the investigative powers of discipline agencies (specifically the Australian Defence Force Military Police), but also those of the civilian and Defence communities they serve.
The first part of the study is a doctrinal analysis of the historical and current investigative powers of defence. It identifies how the legislation came from imperial acts to the current discipline system. The second part of the study analyses a peer discipline system, being that of the United Kingdom, and compares the investigative powers to Australia’s current discipline system. The study incorporates a second analysis of the powers of the Australian Federal Police (AFP), who provide investigative capacity to the Australian Capital Territory and Commonwealth. The systems of the UK Armed Forces and AFP were considered due to their contemporary legislative frameworks, as well as their legislative principles being easily adopted into the DFDA. Finally, the study concludes with a recommendation for contemporary legislative reform that can be considered for adoption into Pts V and VI of the DFDA. The study finds that the current DFDA investigative powers are ineffective in their present state to meet modern criminal investigative challenges, and that separate parts of the DFDA will be required to differentiate discipline officer investigations from Military Police investigations.