Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Defence
Legislation Amendment Bill 2003
No. ,
2003
(Defence)
A Bill
for an Act to amend legislation relating to defence, and for related
purposes
Contents
Air Force Act
1923 16
Archives Act
1983 17
Defence Act
1903 17
Defence Force (Home Loans Assistance) Act
1990 19
Defence Legislation Amendment (Application of Criminal Code) Act
2001 19
Defence Reserve Service (Protection) Act
2001 20
Freedom of Information Act
1982 20
Naval Defence Act
1910 20
Privacy Act
1988 21
Safety, Rehabilitation and Compensation Act
1988 21
Defence Legislation Amendment (Application of Criminal Code) Regulations
2001
(No. 1) 23
Defence Legislation Amendment (Application of Criminal Code) Regulations
2001
(No. 2) 23
A Bill for an Act to amend legislation relating to
defence, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Defence Legislation Amendment Act
2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedule 1 |
The 28th day after the day on which this Act receives the Royal
Assent |
|
|
3. Schedule 2, items 1 to 15 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
|
4. Schedule 2, items 16 to 19 |
The 28th day after the day on which this Act receives the Royal
Assent |
|
|
5. Schedule 2, item 20 |
At the same time as the provisions covered by item 3 of this
table |
|
|
6. Schedule 2, items 21 to 24 |
At the same time as the provisions covered by item 1 of this
table |
|
|
7. Schedule 2, item 25 |
At the same time as the provisions covered by item 3 of this
table |
|
|
8. Schedule 2, items 26 and 27 |
At the same time as the provisions covered by item 1 of this
table |
|
|
9. Schedule 2, item 28 |
Immediately after the commencement of section 2 of the Defence
Legislation Amendment (Application of Criminal Code) Act 2001 |
|
|
10. Schedule 2, item 29 |
Immediately after the commencement of the Defence Reserve Service
(Protection) Act 2001 |
|
|
11. Schedule 2, items 30 to 42 |
At the same time as the provisions covered by item 3 of this
table |
|
|
12. Schedule 3, item 1 |
5 October 2001 |
|
|
13. Schedule 3, item 2 |
15 October 2001 |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 3 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
(1) Each Act, and each set of regulations, that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
(2) The amendment of any regulation under subsection (1) does not
prevent the regulation, as so amended, from being amended or repealed by the
Governor-General.
(3) To avoid doubt, regulations amended under subsection (1) are
taken to still be regulations.
1 Subsection 3(1)
Insert:
competent reviewing authority has the meaning given by
section 150A.
2 Paragraph 34(1)(b)
Omit “inferior”, substitute
“subordinate”.
Note: The heading to section 34 is altered by omitting
“an inferior” and substituting “a
subordinate”.
3 Subsection 34(3)
Omit “inferior”, substitute
“subordinate”.
4 Section 35
Repeal the section, substitute:
(1) A person who is a defence member is guilty of an offence if:
(a) the person is required, because of his or her office or appointment,
to perform a duty; and
(b) the person engages in conduct; and
(c) that conduct results in a failure to perform the duty to the required
standard.
Penalty: Imprisonment for 3 months.
(2) Negligence applies to paragraph (1)(c).
(3) In this section:
required standard, in relation to performing a duty, means
the standard to which a reasonably capable and careful defence member of the
same training and experience would perform the duty.
5 Section 36A
Repeal the section, substitute:
A person who is a defence member or a defence civilian is guilty of an
offence if:
(a) the person engages in conduct; and
(b) the conduct causes, or contributes to, the discharge of a weapon;
and
(c) the discharge of the weapon is not authorised.
Penalty: Imprisonment for 6 months.
A person who is a defence member or a defence civilian is guilty of an
offence if:
(a) the person engages in conduct; and
(b) the conduct causes, or contributes to, the discharge of a weapon;
and
(c) the person is negligent as to that result.
Penalty: Imprisonment for 6 months.
6 Section 40B
Repeal the section.
7 Subsection 72(1)
After “20AA”, insert “of the Crimes Act
1914”.
8 Subsection 101C(2)
Omit all the words and paragraphs after “commencement”,
substitute “of the interview cautioned the person that he or she does not
have to say or do anything, but that anything the person does say or do may be
used in evidence.”.
Note: The heading to section 101C is replaced by the
heading “Questioning and cautioning of person in
custody”.
9 After subsection 101C(2)
Insert:
(2A) A caution for the purpose of subsection (2) must be given in, or
translated into, a language in which the person being cautioned is able to
communicate with reasonable fluency, but need not be given in writing.
(2B) An investigating officer who is required by subsection (2) to
caution a person must, if practicable, tape record the giving of the caution and
the person’s response (if any).
(2C) If:
(a) an investigating officer cautions a person under this section;
and
(b) the giving of the caution and the person’s response (if any) to
the caution are not tape recorded;
then, in any proceedings before a service tribunal, the prosecution has the
burden of proving that it was not practicable to tape record the giving of the
caution or the person’s response (if any) to the caution.
10 Paragraph 101D(4)(a)
After “person”, insert “under this
section”.
Note: The heading to section 101D is replaced by the
heading “Cautioning once decision to charge or summon has been
made”.
11 Subsection 103(1)
After “subsection 129A(3)”, insert “or
130(5)”.
12 At the end of subsection
103(1)
Add:
Note: A charge referred to a Defence Force magistrate must
be referred to the magistrate nominated by the Judge Advocate General: see
subsection 129C(1).
13 At the end of subsection
103(2)
Add:
Note: A charge referred to a Defence Force magistrate must
be referred to the magistrate nominated by the Judge Advocate General: see
subsection 129C(1).
14 At the end of subsection
103(4)
Add:
Note: A charge referred to a Defence Force magistrate must
be referred to the magistrate nominated by the Judge Advocate General: see
subsection 129C(1).
15 At the end of subsection
103(6)
Add:
Note: A case referred to a Defence Force magistrate must be
referred to the magistrate nominated by the Judge Advocate General: see
subsection 129C(2).
16 At the end of
section 103
Add:
(8) If a convening authority believes that he or she would be:
(a) biased, or likely to be biased; or
(b) likely to be thought, on reasonable grounds, to be biased;
in the exercise of a power under this section in relation to:
(c) a charge; or
(d) an order for a new trial; or
(e) a conviction;
the convening authority may refer the charge, order or conviction to
another convening authority.
(9) If a convening authority believes that the interests of justice
require this in respect of the exercise of a power under this section in
relation to:
(a) a charge; or
(b) an order for a new trial; or
(c) a conviction;
the convening authority may refer the charge, order or conviction to
another convening authority.
(10) If:
(a) a charge, order or conviction is referred to a convening authority for
the purposes of the exercise of a power of the convening authority under this
section; and
(b) the convening authority does not, because of the terms of his or her
appointment, have the power to convene a general court martial; and
(c) the convening authority is of the opinion that the convening of a
general court martial could be an appropriate exercise of power under this
section in relation to the charge, order or conviction;
the convening authority may refer the charge, order or conviction to a
convening authority who has the power to convene a general court
martial.
(11) If a convening authority (the first convening
authority) refers a charge, order or conviction to another convening
authority (the second convening authority) under
subsection (8), (9) or (10):
(a) the first convening authority must not exercise a power under
subsections (1) to (7) in relation to the charge, order or conviction;
and
(b) the subsection of this section that relates to the referral of the
charge, order or conviction to the first convening authority applies as if the
charge, order or conviction had been referred to the second convening
authority.
17 Section 118
Repeal the section.
18 At the end of subsection
119(1)
Add:
Note: A convening authority must not appoint a person as a
member, reserve member or judge advocate of a court martial unless the person
has been nominated by the Judge Advocate General: see
section 129B.
19 At the end of
section 123
Add:
Note: A convening authority must not appoint a person as a
member, reserve member or judge advocate of a court martial unless the person
has been nominated by the Judge Advocate General: see
section 129B.
20 At the end of subsection
124(3)
Add:
Note: A convening authority must not appoint a person as a
judge advocate of a court martial unless the person has been nominated by the
Judge Advocate General: see section 129B.
21 At the end of
section 127
Add:
Note: A member of the judge advocates’ panel is
appointed for a maximum period of 3 years but is eligible for reappointment: see
subsection 196(2A).
22 At the end of subsection
129A(4)
Add:
Note: A charge or case referred to a Defence Force
magistrate must be referred to the magistrate nominated by the Judge Advocate
General: see section 129C.
23 At the end of Part VII
Add:
(1) A convening authority must not appoint a person as:
(a) the President of a court martial; or
(b) a member or reserve member of a court martial; or
(c) a judge advocate of a court martial;
unless the Judge Advocate General has nominated the person for the
position.
(2) The Judge Advocate General must not nominate a person for one of the
positions referred to in subsection (1) if the Judge Advocate General
believes the person to be:
(a) biased or likely to be biased; or
(b) likely to be thought, on reasonable grounds, to be biased.
(1) A convening authority must not refer a charge to a Defence Force
magistrate unless the Judge Advocate General has nominated the magistrate to try
the charge.
(2) A convening authority must not refer a case to a Defence Force
magistrate to take action under Part IV in relation to a convicted person
unless the Judge Advocate General has nominated the magistrate to take action in
relation to the person.
24 At the end of Division 1 of
Part IX
Add:
A reviewing authority is a competent reviewing authority
for the purposes of reviewing the proceedings of a service tribunal that relate
to a particular charge only if the reviewing authority did not exercise any of
the powers or perform any of the functions of a convening authority in relation
to the charge.
25 At the end of
section 151
Add:
(6) If the legal officer does not transmit the record of proceedings and
the report of the results of the review to a reviewing authority, the commanding
officer must give written notice of the results of the review to the person who
was convicted of the service offence.
26 Subsection 152(1)
Omit “reviewing authority”, substitute “competent
reviewing authority”.
27 At the end of
section 152
Add:
(3) After reviewing the proceedings, the reviewing authority must give the
person who was convicted of the service offence, or who was the person in
relation to whom a direction under subsection 145(2) or (5) was given, written
notice of the results of the review.
28 Subsection 153(1)
Omit “, within 90 days after that conviction or the giving of that
direction or such further period as a reviewing authority allows, lodge with
the”, substitute “lodge with a competent”.
29 After subsection 153(1)
Insert:
(1A) The person must lodge the petition within 30 days after:
(a) if a commanding officer reviews the proceedings of the service
tribunal under section 151 and gives the person notice of the results of
the review under subsection 151(6)—the notice is given; or
(b) in any other case—the person is given notice of the results of
the review under subsection 152(3);
unless the reviewing authority extends the period during which the petition
may be lodged.
(1B) If the reviewing authority extends the period during which the
petition may be lodged, the petition must be lodged within that extended
period.
30 Subsection 153(2)
Omit “a reviewing authority”, substitute “a competent
reviewing authority”.
31 After subsection 154(1)
Insert:
(1A) An appointment under paragraph (1)(a) is for the period, not
exceeding 3 years, specified in the instrument of appointment.
(1B) A legal officer appointed under paragraph (1)(a) may be
reappointed for a further period or periods.
32 Subsection 155(1)
Omit “Chief of Staff”, substitute “Chief of the Defence
Force or the service chief”.
33 Subsection 155(2)
Omit “Chief of Staff”, substitute “Chief of the Defence
Force or the service chief”.
34 Section 169A
Insert:
officer cadet means a defence member who holds:
(a) in the Navy—the rank of midshipman; or
(b) in the Army or the Air Force—the rank of officer
cadet.
35 Section 169C
Omit “holding”, substitute “who is an officer cadet or
holds”.
36 Subsection 169D(1)
Omit “holding”, substitute “who is an officer cadet or
holds”.
37 Subsection 169F(2)
Omit “penalty”, substitute “punishment”.
38 After section 169F
Insert:
(1) Subject to this Part, a punishment imposed by a discipline officer
takes effect immediately and a punishment for a specific period commences on the
day on which it is imposed.
(2) A discipline officer who imposes a punishment for a specific period
may impose the punishment for a period beginning on a specified day no later
than 14 days after the day on which the punishment is imposed.
39 Part XI (heading)
Repeal the heading, substitute:
40 At the end of Part XI
Add:
(1) The Judge Advocate General may, by instrument in writing, appoint an
officer to be the Chief Judge Advocate.
(2) The appointment is for the period, not exceeding 3 years, specified in
the instrument of appointment.
(3) A Chief Judge Advocate may be reappointed for a further period or
periods.
(1) The Chief Judge Advocate is to provide administrative assistance to
the Judge Advocate General.
(2) Subject to subsection (3), the Judge Advocate General may, by
signed instrument, delegate all or any of his or her powers to the Chief Judge
Advocate.
(3) The Judge Advocate General must not delegate his or her powers under
any of the following provisions to the Chief Judge Advocate:
(a) subsection 127(1);
(b) subsection 154(4);
(c) subsection 196(2).
(4) The Chief Judge Advocate is, in the exercise of a delegated power or
function, subject to the direction and control of the Judge Advocate
General.
A person is not eligible to be the Chief Judge Advocate unless the person
is:
(a) an officer holding a rank not below the naval rank of captain or the
rank of colonel or group captain; and
(b) a member of the judge advocates’ panel.
The Chief Judge Advocate may resign his or her office by giving to the
Judge Advocate General a signed notice of resignation.
41 Subsection 190(2)
Omit “subsections (3), (4) and (5)”, substitute
“subsection (4)”.
42 Subsection 190(3)
Repeal the subsection.
43 Subsection 190(5)
Repeal the subsection.
44 Subsection 190(6)
Repeal the subsection.
45 Subsection 196(2)
Omit “chief of staff”, substitute “Chief of the Defence
Force or the service chief”.
46 After subsection 196(2)
Insert:
(2A) An appointment under subsection (2) is for the period specified
in the instrument of appointment. However, if the specified period exceeds 3
years, the appointment is for a period of 3 years.
(2B) An officer appointed under subsection (2) may be reappointed for
a further period or periods.
47 Table C in Schedule 3 (table item dealing
with Any other subordinate summary authority)
Repeal the table item, substitute:
|
Any subordinate summary authority |
Non-commissioned officer of, or below, the rank of leading seaman or
corporal |
Fine not exceeding the amount of the convicted person’s pay for 3
days Severe reprimand Reprimand |
|
|
Member below non-commissioned rank |
Fine not exceeding the amount of the convicted person’s pay for 3
days Severe reprimand Restriction of privileges for a period not exceeding 7 days Stoppage of leave for a period not exceeding 7 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a
period not exceeding 3 days Reprimand |
48 Application
The amendments made by items 21, 31 and 46 of this Schedule apply to
appointments made after the commencement of this Act.
1 Subsection 8(1)
Repeal the subsection, substitute:
(1) The body known immediately before the commencement of this subsection
as the Air Training Corps is continued in existence with the new name,
Australian Air Force Cadets.
Note: The heading to section 8 is replaced by the
heading “Australian Air Force Cadets”.
2 Subsection 8(2)
Omit “Air Training Corps shall consist”, substitute
“Australian Air Force Cadets consists”.
3 Subsection 8(3)
Omit “Air Training Corps”, substitute “Australian Air
Force Cadets”.
4 Subsection 8(4)
Omit “Air Training Corps”, substitute “Australian Air
Force Cadets”.
5 Subsection 8(7)
Omit “Air Training Corps”, substitute “Australian Air
Force Cadets”.
6 Subsection 8(8)
Omit “Air Training Corps”, substitute “Australian Air
Force Cadets”.
7 Subsection 8(9)
Omit “Air Training Corps”, substitute “Australian Air
Force Cadets”.
8 Transitional—Australian Air Force
Cadets
To avoid doubt:
(a) appointments to the Air Training Corps in force under paragraph
8(2)(a) or (b) of the Air Force Act 1923 immediately before the
commencement of item 1 of this Schedule continue to have effect after that
commencement as if they were appointments to the Australian Air Force Cadets;
and
(b) persons who are cadets in the Air Training Corps under section 8
of the Air Force Act 1923 immediately before the commencement of
item 1 of this Schedule continue as cadets in the Australian Air Force
Cadets after that commencement, subject to the limitations imposed by that
section (as amended).
9 Paragraph 3(3)(b)
Omit “Cadet Corps”, substitute “Army
Cadets”.
10 Paragraph 3(3)(c)
Omit “Naval Reserve Cadets”, substitute “Australian Navy
Cadets”.
11 Paragraph 3(3)(d)
Omit “Air Training Corps”, substitute “Australian Air
Force Cadets”.
12 Section 58A (definition of
cadet)
Omit “Australian Cadet Corps, the Naval Reserve Cadets or the Air
Training Corps”, substitute “Australian Army Cadets, the Australian
Navy Cadets or the Australian Air Force Cadets”.
13 Subsection 62(1)
Repeal the subsection, substitute:
(1) The body known immediately before the commencement of this subsection
as the Australian Cadet Corps is continued in existence with the new name,
Australian Army Cadets.
Note: The heading to section 62 is altered by omitting
“Cadet Corps” and substituting “Army
Cadets”.
14 Subsection 62(2)
Omit “Cadet Corps shall consist”, substitute “Army Cadets
consists”.
15 Subsections 62(3), (4), (7), (8) and
(9)
Omit “Cadet Corps”, substitute “Army
Cadets”.
16 Subsection 80A(1) (penalty)
Omit “$200”, substitute “30 penalty
units”.
17 Subsection 80B(1) (penalty)
Repeal the penalty, substitute:
Penalty: 30 penalty units or imprisonment for 6 months, or both.
18 Subsection 80B(4) (penalty)
Repeal the penalty, substitute:
Penalty: 30 penalty units or imprisonment for 6 months, or both.
19 Subsection 80B(5) (penalty)
Repeal the penalty, substitute:
Penalty: 60 penalty units or imprisonment for 12 months, or both.
20 Paragraph 123AA(1)(b)
Omit “Cadet Corps”, substitute “Army
Cadets”.
21 Paragraph 124(1)(gc)
Omit “and investigating officers”, substitute “,
investigating officers and inquiry assistants”.
22 Subsection 124(2A)
Omit “or a board of inquiry”, substitute “, a board of
inquiry, an investigating officer or an inquiry assistant”.
23 Subsection 124(2C)
Omit “or a board of inquiry”, substitute “, a board of
inquiry, an investigating officer or an inquiry assistant”.
24 Subsection 124(2C)
Omit “at the hearing before the court of inquiry or the board of
inquiry”, substitute “at the hearing before the court of inquiry,
the board of inquiry, the investigating officer or the inquiry
assistant”.
25 Transitional—Australian Army
Cadets
To avoid doubt:
(a) appointments to the Australian Cadet Corps in force under paragraph
62(2)(a) or (aa) of the Defence Act 1903 immediately before the
commencement of item 13 of this Schedule continue to have effect after that
commencement as if they were appointments to the Australian Army Cadets;
and
(b) persons who are cadets in the Australian Cadet Corps under
section 62 of the Defence Act 1903 immediately before the
commencement of item 13 of this Schedule continue as cadets in the
Australian Army Cadets after that commencement, subject to the limitations
imposed by that section (as amended).
Defence Force (Home Loans
Assistance) Act 1990
26 Section 3 (after paragraph (b) of the
definition of reviewable decision)
Insert:
(ba) refusing to make a determination under subsection 4(1A); or
27 After subsection 4(1)
Insert:
(1A) However, the Secretary may determine in writing that a person covered
by paragraph (1)(a) continues to be an eligible person for a specified
period beyond the period of 2 years mentioned in that paragraph, if:
(a) the person is an incapacitated person; and
(b) the person satisfies the Secretary that the compensable disability
that caused the person’s discharge also caused, or contributed to, the
person’s failure to apply for an entitlement certificate within that 2
year period.
(1B) An application for a determination under subsection (1A) must be
in writing.
Defence Legislation
Amendment (Application of Criminal Code) Act 2001
28 Subsection 2(2)
Repeal the subsection, substitute:
(2) Part 1 of Schedule 1 commences on 15 December
2001.
Defence Reserve Service
(Protection) Act 2001
29 Subsection 12(1)
Omit “32A(4)”, substitute “32A(3)”.
Freedom of Information Act
1982
30 Paragraph 4(4)(b)
Omit “Cadet Corps”, substitute “Army
Cadets”.
31 Paragraph 4(4)(c)
Omit “Naval Reserve Cadets”, substitute “Australian Navy
Cadets”.
32 Paragraph 4(4)(d)
Omit “Air Training Corps”, substitute “Australian Air
Force Cadets”.
33 Subsection 38(1)
Repeal the subsection, substitute:
(1) The body known immediately before the commencement of this subsection
as the Naval Reserve Cadets is continued in existence with the new name,
Australian Navy Cadets.
Note: The heading to section 38 is altered by omitting
“Naval Reserve Cadets” and substituting “the
Australian Navy Cadets”.
34 Subsection 38(2)
Omit “Naval Reserve Cadets shall consist”, substitute
“Australian Navy Cadets consists”.
35 Subsections 38(3), (7) and
(8)
Omit “Naval Reserve”, substitute “Australian
Navy”.
36 Section 39
Omit “Naval Reserve”, substitute “Australian
Navy”.
Note: The heading to section 39 is altered by omitting
“Naval Reserve” and substituting “the Australian
Navy”.
37 Paragraph 44E(1)(b)
Omit “Naval Reserve”, substitute “Australian
Navy”.
Note: The heading to section 44E is altered by omitting
“Naval Reserve” and substituting “Australian
Navy”.
38 Transitional—Australian Navy
Cadets
To avoid doubt:
(a) appointments to the Naval Reserve Cadets in force under paragraph
38(2)(a) or (b) of the Naval Defence Act 1910 immediately before the
commencement of item 33 of this Schedule continue to have effect after that
commencement as if they were appointments to the Australian Navy Cadets;
and
(b) persons who are cadets in the Naval Reserve Cadets under
section 38 of the Naval Defence Act 1910 immediately before the
commencement of item 33 of this Schedule continue as cadets in the
Australian Navy Cadets immediately after that commencement, subject to the
limitations imposed by that section (as amended).
39 Subsection 6(1) (definition of Defence
Force)
Omit “Naval Reserve Cadets, the Australian Cadet Corps and the Air
Training Corps”, substitute “Australian Navy Cadets, the Australian
Army Cadets and the Australian Air Force Cadets”.
Safety, Rehabilitation and
Compensation Act 1988
40 Paragraph 6A(1)(b)
Omit “Air Training Corps established under section 8 of the
Air Force Act 1923”, substitute “Australian Air Force Cadets
(see section 8 of the Air Force Act 1923)”.
41 Paragraph 6A(1)(c)
Omit “Australian Cadet Corps established under section 62 of the
Defence Act 1903”, substitute “Australian Army Cadets (see
section 62 of the Defence Act 1903)”.
42 Paragraph 6A(1)(d)
Omit “Naval Reserve Cadets established under section 38 of the
Naval Defence Act 1910”, substitute “Australian Navy Cadets
(see section 38 of the Naval Defence Act 1910)”.
Defence Legislation
Amendment (Application of Criminal Code) Regulations 2001
(No. 1)
1 Regulation 2
Repeal the regulation, substitute:
2 Commencement
These Regulations commence on 15 December 2001.
Defence Legislation
Amendment (Application of Criminal Code) Regulations 2001
(No. 2)
2 Regulation 2
Repeal the regulation, substitute:
2 Commencement
These Regulations commence on 15 December 2001.