Defence Force Discipline Act 1984 (Cth) (DFDA), section 27 – Disobey lawful command. 

From the outset, it should be remembered that not all orders are made the same. Much in the same way not all members of the hierarchy are the same rank. There are (2) two distinct types of orders being:

2. Lawful commands; and
3. General orders.

The DFDA, section 3, helps demarcate on separate the above two types of orders. This is done in the way of a definition which acts to the exclusion of the other type of order. Relevantly, the D FDA, section 3, provides a definition of general lawful orders, as being:

general order means:

a.    a Defence Instruction;

b.    any other order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; or

c.    a general, standing, routine or daily order in force with respect to a part of the Defence Force.

From a plain reading, a general order is an order which is written (generally, but this requirement isn’t expressly set out) and conveyed by way of directive, which may be in a Defence Instruction, or as part of usual unit processes which result in routine or daily orders. The definition in the DFDA, section 3, provides a clear separation between general orders, and lawful commands. However, what we will not discuss today is that not all Defence Instructions are, by function of being issued, immediately orders. 

In even more practical terms, a general order is not a lawful command. Whereas a lawful command, is a lawful command. In this regard, it is relevant to note the DFDA provides separate provisions which deal with disobey lawful command, and failure to comply with a general order. In this regard, it is clear the intention of the legislation is that the two (2) terms are not interchangeable.

There are various Defence Force Discipline Appeal Tribunal (DFDAT) matters which deal with the elements of a command. However, the matter of Leith v Chief of Army stipulates that:

an order may be lawful even though the person giving it does not use formal language. What is critical is that the words used are reasonably capable of conveying and being understood as conveying a direction to do or not do some act. In making this determination it will be relevant to have regard to the relationship between the person giving the order and the person to whom it is given, the terms in which they converse in relation to work related matters and the common understandings of terms and expressions used in their workplace environment.

[emphasis added]

The above underlined emphasises to critical points, which is particularly relevant as it relates to the offence of disobey lawful command. In Leith, a CPL was instructed by his PLSGT to “[c]lear the boys while I go hand back the ammo.”. However, despite this somewhat informal and direct command the CPL failed to complete a range clearance of his equipment. The result was the CPL failed to identify he was still in possession of range produce (rookie error).

Notwithstanding the CPL’s delinquency, there are two (2) significant matters which arise as a result of Leith, these are: 

1. There must be regard to the relationship between the parties; and
2. There must be a more than causal connection to the work environment.

The relationship

That there must be a relationship between the parties is not controversial. The wording of the DFDA, section 27 expressly states for there to be an offence a person giving a lawful command must be superior to another member. Relevantly, the DFDA, section 27, states: 

1. A defence member commits an offence if:

a.    a person gives the member a lawful command; and

b.    the person giving the command is a superior officer; and

c.    the member disobeys the command.

…

1. 3. It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person who gave the command was a superior officer.

[emphasis added]

The effect of the above underlined is identified in Leith insofar as upon determining there is a relationship between the two parties, which may be determined by reference to the Australian Defence Force rank system, there exists a relationship. In this regard, it is unsurprising for an element of the charge to require consideration of whether the person was obliged to follow a command.

However, the DFDA, section 27 also provides an express defence to disobeying a lawful command. That is when a member is unaware the person who gave them a command was this superior. The wording of the DFDA provides the onus falls to the accused to discharge a presumption that they were aware the other member was. In practical terms, yesterday was the hard day, and there are no easy battles.

Connection to work

Leith also provides guidance in respect of what may be taken as a lawful command. To this point, not every direction or instruction from a superior will be a lawful command. Leith makes clear there must be a relationship to “work matters” and the “workplace environment”.

To the above point, it appears relevant to note that a lawful command must be connected to a duty. In Leith, the CPL was conducting the duty of a CPL, and in accordance with that duty was obliged to carry out that duty fully. Where a lawful command is outside the scope of a duty (which is distinct from “service”) the command may be seen as lawful but would not be conveyed as a command which must be followed. In practical terms, where no such duty exists, it may be the case there is no obligation to follow a lawful command which is not a command.

What is the key learning?

• Disobey lawful command and failure to comply with the general order  are distinctly different offences;
• The DFDA provides a framework which makes clear this distinction;
• For a lawful command to be a lawful command, there must be a relationship between the parties and a connection to work and the work environment;
• For a lawful command to be a lawful command, it must serve a military purpose;
• The connection to work may be taken to mean there must be a duty involved;
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