What's the difference between custodial and non-custodial punishments in the Defence Force?

In Plain English

In the Defence Force, punishments are divided into two main categories: custodial and non-custodial. Custodial punishments involve some form of confinement or restriction of freedom, like being confined to a cell or restricted in privileges. Non-custodial punishments, on the other hand, don't involve confinement. Examples include fines, extra duties, or a reduction in rank. Courts martial and Defence Force magistrates do not have the power to impose custodial offences, only service tribunals do.

Detailed explanation

The Defence Force Discipline Act 1982 outlines the types of punishments that can be imposed on Defence Force members who commit service offences. These punishments are divided into custodial and non-custodial categories.

Custodial Punishments:

  • These punishments involve a restriction of liberty and are listed in section 68A of the Defence Force Discipline Act 1982. The punishments, in decreasing order of severity, are:
    • Segregated confinement (not exceeding 10 days)
    • Confinement to cell (not exceeding 10 days)
    • Extra drill (not exceeding 6 days)
    • Restriction of custodial privileges (not exceeding 14 days)
  • Courts martial and Defence Force magistrates do not have jurisdiction to try custodial offences, as stated in sections 115 and 129 of the Defence Force Discipline Act 1982.
  • Section 68C of the Defence Force Discipline Act 1982 allows a service tribunal to impose a custodial punishment for certain non-custodial service offences under specific sections of the Act (23, 25, 26, 27, 29, 33, 43, 48A, 51 or 60) or ancillary offences related to them, if the offence was committed while the person was a detainee.
  • The Defence Force Discipline (Consequences of Punishment) Rules 2018 details the consequences that flow from the imposition of custodial punishments under section 68A(2) of the Defence Force Discipline Act 1982.

Non-Custodial Punishments:

  • Non-custodial punishments do not involve confinement. Examples of non-custodial punishments can be found in the Defence Force Discipline Act 1982.
  • Section 69A of the Defence Force Discipline Act 1982 states that a court martial or a Defence Force magistrate must not impose a punishment except in accordance with Part V of the Act.
  • Section 69B of the Defence Force Discipline Act 1982 states that a superior summary authority must not impose a punishment except in accordance with Part V of the Act.
  • Section 69C of the Defence Force Discipline Act 1982 states that a commanding officer must not impose a punishment except in accordance with Part V of the Act.
  • Section 71 of the Defence Force Discipline Act 1982 places restrictions on the power to impose punishments. For example, a service tribunal must not impose a punishment of imprisonment on a defence member unless the tribunal also imposes on that member in respect of that conviction the punishment of dismissal from the Defence Force.