Defence mental health laws from 1982 to be changed

By Shannon Jenkins

October 9, 2019

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A Defence leader has said the “gross inadequacy” of mental health legislation for Defence Force members must be overhauled.

Director of Military Prosecutions Brigadier Jennifer Woodward has used her latest annual report to call for changes to the way mental health is dealt with in military trials, with a draft bill to be put before Parliament next year.

“As I have previously reported and continue to note in this reporting period, ADF members are reporting mental health issues, either at the time of investigation by military investigators, at the time of being charged with offences under the DFDA [Defence Force Discipline Act], and/or during sentencing post-conviction in increasingly large numbers,” she wrote in the 2018 report, which was published last week.

“As I have said in my previous reports, this is an area that desperately needs legislative reform, particularly to establish treatment plans and diversionary conferencing, not only because of the growing prevalence of mental health issues, but because of the gross inadequacy of the existing legislative provisions in the DFDA.”

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Written almost four decades ago, the DFDA states that if mental impairment has led to an offence or has caused a person to be unfit to stand trial, then “the court martial or the Defence Force magistrate shall so find and shall direct that the person be kept in strict custody until the pleasure of the Governor‑General is known”.

They could also be referred to the Director of Military Prosecutions.

Woodward has been requesting the legislation be updated for years. As noted in her 2017 report, at least seven officers who were charged with offences during that reporting period had reported an undiagnosed mental health problem at the time they were charged and leading up to their trial.

“It is difficult to determine whether the mental health problem was hidden by them and may have contributed to their offending or whether being charged has precipitated the problem,” she wrote.

“All cases referred to me where the ADF member presents a mental health problem are complex and require detailed and very careful consideration. This is an area that needs legislative reform, particularly to establish treatment plans and diversionary conferencing.”

But Woodward’s concerns have finally been noticed, and a draft bill will be put before Parliament next year to update the DFDA, “aligning with best practice in civilian criminal jurisdictions”.

“Defence is working with the Officer of Parliamentary Council, the Australian Government Solicitor and the Attorney-General’s Department to prepare a draft bill which addresses these reforms. The bill will be proposed for inclusion in the 2020 parliamentary sitting calendar,” she said in a statement on Tuesday, as reported by The Canberra Times.

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