Thread: Double dippin`

Just for some light reading...

for those of you who cant understand why most serving members look down with abhorrence on people who break the law and get away with a slap on the joy department with a slightly dampened length of dental floss.

and for all those who whine about "I did this and lost my liscence for 3 months its just not fair..."

This was distributed Base wide today, I've edited it so the references are all xxed out as well as the positions.

Ladies and Gents

For Your Information and Education


Although it is generally understood that individuals who are charged with a civilian offence are required to report same to their xx (via Chain-of-Command), there appears to be some confusion as to how that process is applied and what the time-frame is for doing so.

The following is an extract from DIxxxxxxx Reporting, recording and dealing with Civil Offences, Service and Civil Convictions and Diversionary Programs

Member’s responsibility. An ADF member who has been arrested and/or charged with a civil offence must report this to their xx within 24 hours of return to duty, by completing part A of Form xx
. The member must provide details of the nature of the arrest and/or charge, including pending court dates and any further requirements that may affect their availability for duty.
Whether you believe it fair or not, personnel who are charged with a civilian offence may find themselves not only enjoying the penalties imposed by a civilian court, but also a penalty (or penalties) imposed by Defence.

Why? you may ask, does Defence, apparently, want to punish you twice for one crime ... Well, it doesn't, really. In addition to your failing to obey a lawful order (DI's) and potentially bringing Defence into disrepute by your actions, Defence has a responsibility to Government to carry out a specific role. If, by your actions, you can no longer carry out your duties effectively (loss of licence, for example), then such a situation has the potential to compromise Operational exigencies: you may not be effective in your defined role for some considerable time; you can't be deployed; someone else has to be found to do your job; there may be additional administrative, re-training or rehabilitation cost incurred by Defence, etc, etc. So, any disciplinary action taken would, in effect, be directed at your inability to fulfil your obligations as a Defence member.

The attached document provides further reading on this subject with links to the relevant DI's. Take the time to read them and, if you need clarification in any area, ask.

Have a safe day.


Regards,

and heres the start of the list of actions that were attached.. bare in mind that all of whats below applies even if a member is found not guilty... Near enough is good enough in military law (roughly speaking). In some instances being in the right place at the wrong time so an allegation can be made is enough to put a defence member in a world of hurt.

Ref C sets out a range of mandatory procedures which must be followed immediately after a member is charged with a Civil Offence.

There is a tendency for units to initiate administrative action as soon as a member is charged. While this is not strictly improper, it is poor practice. The member is entitled to a presumption of innocence until they plead guilty or are convicted by a court. Imposing administrative sanctions before this point gives the appearance of disregarding this presumption of innocence. It is therefore best practice to commence administrative action only once one of the following trigger points is reached:



· enrolment of the member in a diversionary program;

· an accepted plea of guilty (an expressed intention to plead guilty is not sufficient);

· a finding of guilt (whether a conviction is recorded or not); or

· acquittal (finding of not guilty).





Initiate administrative action



Once a commencement point is reached, the unit should consider whether the member’s behaviour provides the basis for an administrative sanction. It is vital that this decision considers the member’s conduct, and not merely the court outcome.



For instance, if a member is found guilty of drug possession and fined, a subsequent Adverse Report would be because the member was involved with drugs; not because the member was convicted.



Note that administrative action can be initiated against a member even if they are acquitted by the court – it may be, for instance, that the evidence against the member was insufficient to reach the criminal standard of proof (beyond reasonable doubt) but is sufficient to reach the required standard for administrative action (the balance of probabilities). Again, the focus of administrative action is on the conduct, not the court outcome. Para 11 of Ref A provides further guidance on this issue.




Member on a diversionary program



Diversionary programs differ from state to state, and from offence to offence. xxxxshould make themselves aware of the nature and requirements of the member’s diversionary program, and seek guidance from a legal officer.



In particular, be aware that most diversionary programs do not require a plea of guilty or a finding of guilt. As a result, administrative action paperwork must not conclude that a member undertook the improper behaviour, merely because they attended a diversionary program. Other evidence of the behaviour must be obtained (for instance, a formal investigation, police report, or admission by the member).


Conviction not recorded



Once guilt is admitted or established before a court, the court is entitled to punish the member but also to instruct that “no conviction be recorded.” The effect of this is that the offence does not appear on the member’s criminal record. The purpose of this process is to give the offender a second chance without recording a criminal “black mark.”



Some members will maintain that because no conviction was recorded against them, they should not be subject to administrative action. This is incorrect. From a Service perspective, sub-para 6.a of Ref C makes it very clear that it is irrelevant whether a conviction is recorded or not. As soon as guilt is acknowledged or proved, the member is considered to have a civil conviction, whether it is “recorded” or not.



Again, however, any administrative action should focus on the conduct, not on whether a member has a recorded conviction or not.




Member imprisoned



If a member is imprisoned in a civilian prison, an Adverse Report is to be raised. If the member is an enlisted member, it is likely that their service will be terminated under Defence (Personnel) Regulation , on the grounds that the member is unable to render effective service.



If a member is placed under periodic detention or receives a suspended prison sentence, administrative action should be considered, but Defence (Personnel) Regulation does not apply, as the member is able to continue rendering effective service.




Prejudice to the reputation of the ADF/RAAF



Units raising adverse administrative action following a civil conviction have a tendency to routinely include, as a basis for the administrative action, a statement that the member’s conduct or behaviour has brought the ADF or RAAF into disrepute. In many cases this is perfectly justified. However, the mere fact that a person appears before the court and is convicted does not, in itself, amount to prejudice to the reputation of the ADF or RAAF.



If, however, the case attracts media or other public attention, and the convicted person is identified as an Air Force member, or if in some other way the case results in actual public discredit to the RAAF, then the adverse administrative action may cite prejudice to the RAAF or ADF’s reputation.

And there you go,

for the want of a simple lapse of judgment you can loose your license, an ADF member does the same and they get to loose their license, their job, home, health care, their whole way of life.

And we accept this as just part of doing our job.

Humpf...
I had a bloke driving my school bus part time.
Found out through the media that he'd been busted for Kiddie porn, lots and lots of Kiddie Porn some of involving his own niece. He went me for unfair dismissal.
Go Figure.




No, he didn't win, but I was crapping myself.