Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

DEFENCE LEGISLATION AMENDMENT (DISCIPLINE REFORM) BILL 2021

                                 2019-2020-2021



       THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA



                                    SENATE




DEFENCE LEGISLATION AMENDMENT (DISCIPLINE REFORM) BILL 2021



           SUPPLEMENTARY EXPLANATORY MEMORANDUM


               Amendments to be moved on behalf of the Government



(Circulated by the authority of the Minister for Defence Personnel, the Honourable
                                  Andrew Gee MP)
     AMENDMENT TO THE DEFENCE LEGISLATION AMENDMENT (DISCIPLINE
                          REFORM) BILL 2021


GENERAL OUTLINE
1.    The purpose of this amendment to the Defence Legislation Amendment (Discipline
Reform) Bill 2021 (the Bill) is to insert the term 'in all the circumstances' and to remove the
element of 'offensive' from the new cyber-bullying offence set out in the Bill.
2.      The cyber-bullying offence at new section 48A will no longer apply in relation to
material that a reasonable person would regard in all the circumstances as offensive. Instead,
the cyber-bullying offence will apply when a defence member has used a social media service
or relevant electronic service in a way that a reasonable person would regard in all the
circumstances as threatening, intimidating, harassing or humiliating another person.
NOTES ON AMENDMENTS
3.       This amendment would insert the words 'in all the circumstances' before 'regard' and
remove the words 'as offensive or' from new paragraph 48A(1)(b) as set out in clause 2 of
Schedule 3 of the Bill. The effect is that the cyber-bullying offence set out in this clause applies
when a defence member has used a social media service or relevant electronic service in a way
that a reasonable person would regard in all the circumstances as threatening, intimidating,
harassing or humiliating another person.

FINANCIAL IMPACT

4.       Nil.
 SUPPLEMENTARY STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
      Amendment to Defence Legislation Amendment (Discipline Reform) Bill 2021
General outline
1.    The purpose of this amendment is to insert the term 'in all the circumstances' and to
remove the element of 'offensive' from the new cyber-bullying offence set out in clause 2 of
Schedule 3 of the Bill.
2.      The cyber-bullying offence will apply when a defence member has used a social media
service or relevant electronic service in a way that a reasonable person would regard in all the
circumstances as threatening, intimidating, harassing or humiliating another person.
Human rights implications
The right to freedom of expression and opinion
3.     The amendment narrows the circumstances in which a defence member's use of social
media or a relevant electronic service will amount to a service offence.
4.      The proposed cyber-bullying offence, as amended by this amendment, engages the right
to freedom of expression and opinion, as it limits a defence member's right to express their
opinions via a social media service or relevant electronic service. The service offence is
directed at a legitimate objective: the maintenance and enforcement of service discipline. In
particular, the service offence will discourage defence members from engaging in
cyber-bullying by using social media or relevant electronic service, which can adversely impact
the good order and discipline of the Defence Force. Introduction of the service offence is
necessary, noting available alternatives, such as administrative sanctions, lack an immediate
and public deterrent effect for maintaining or enforcing service discipline.
5.      By removing the term 'offensive' from s.48A(1)(b), this amendment will mean that the
service offence will be available in a narrower range of circumstances, in particular where a
defence member has used a social media service or relevant electronic service in a way that a
reasonable person would regard in all the circumstances as threatening, intimidating, harassing
or humiliating another person. The insertion of the text 'in all the circumstances' within section
48A(1)(b) will provide context for the service tribunal to have regard to when applying the
reasonable person test.
Conclusion
8.      This amendment is compatible with human rights as it promotes human rights, and to
the extent that it may limit human rights, those limitations are reasonable, necessary and
proportionate to a legitimate aim; the maintenance and enforcement of service discipline.