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This is a Bill, not an Act. For current law, see the Acts databases.

DEFENCE LEGISLATION AMENDMENT BILL (NO. 2) 2005

2004-2005
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Defence Legislation Amendment Bill
(No. 2) 2005
No. , 2005
(Defence)
A Bill for an Act to amend legislation relating to
defence, and for related purposes
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 ii
Contents
1 Short
title...........................................................................................1
2 Commencement.................................................................................1
3 Schedule(s) ........................................................................................3
Schedule 1--Director of Military Prosecutions and Registrar of
Military Justice
4
Defence Force Discipline Act 1982
4
Schedule 2--Inspector-General of the Australian Defence
Force
33
Defence Act 1903
33
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 1
A Bill for an Act to amend legislation relating to
1
defence, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Defence Legislation Amendment Act
5
(No. 2) 2005.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
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,
item 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
3. Schedule 1,
item 2
The day on which this Act receives the
Royal Assent.
4. Schedule 1,
items 3 to 99
At the same time as the provisions covered
by table item 2.
5. Schedule 1,
items 100 to 105
The day on which this Act receives the
Royal Assent.
6. Schedule 1,
items 106 and 107
At the same time as the provisions covered
by table item 2.
7. Schedule 1,
item 108
The day on which this Act receives the
Royal Assent.
8. Schedule 1,
items 109 to 114
At the same time as the provisions covered
by table item 2.
9. Schedule 1,
item 115
The day on which this Act receives the
Royal Assent.
10. Schedule 2,
items 1 and 2
The day on which this Act receives the
Royal Assent.
11. Schedule 2,
items 3 and 4
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
12. Schedule 2,
items 5 to 7
The day on which this Act receives the
Royal Assent.
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 3
Note:
This table relates only to the provisions of this Act as originally
1
passed by the Parliament and assented to. It will not be expanded to
2
deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
4 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
1
Schedule 1--Director of Military Prosecutions
2
and Registrar of Military Justice
3
4
Defence Force Discipline Act 1982
5
1 Subsection 3(1) (definition of appropriate authority)
6
Omit "a convening authority" (wherever occurring), substitute "the
7
Registrar of Military Justice".
8
2 Subsection 3(1)
9
Insert:
10
Chief Judge Advocate means the Chief Judge Advocate appointed
11
under section 188A.
12
3 Subsection 3(1) (definition of convening authority)
13
Repeal the definition.
14
4 Subsection 3(1)
15
Insert:
16
Defence Force Discipline Appeal Tribunal means the Defence
17
Force Discipline Appeal Tribunal constituted under the Defence
18
Force Discipline Appeals Act 1955.
19
5 Subsection 3(1)
20
Insert:
21
Director of Military Prosecutions means the Director of Military
22
Prosecutions appointed under section 188GF.
23
6 Subsection 3(1)
24
Insert:
25
Registrar of Military Justice means the Registrar of Military
26
Justice appointed under section 188FB.
27
7 Subsection 3(1)
28
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 5
Insert:
1
superior authority means a superior authority appointed under
2
section 5A.
3
8 After section 5
4
Insert:
5
5A Appointment of superior authority
6
The Chief of the Defence Force or a service chief may, by
7
instrument in writing, appoint an officer, or each officer included
8
in a class of officers, to be a superior authority for the purpose of:
9
(a) representing the interests of the Defence Force in relation to
10
charges that are being considered by the Director of Military
11
Prosecutions for possible trial by a Defence Force magistrate
12
or a court martial; and
13
(b) exercising the powers and performing the functions conferred
14
on superior authorities by or under this Act or the
15
regulations.
16
9 At the end of subsection 87(1)
17
Add:
18
; or (c) if the authorized member is the Director of Military
19
Prosecutions, do one of the following:
20
(i) if the charge is a charge that is within the jurisdiction of
21
a superior summary authority or a commanding officer
22
to try--refer the charge to a superior summary authority
23
or a commanding officer for trial under section 106 or
24
107;
25
(ii) request the Registrar of Military Justice to refer the
26
charge to a Defence Force magistrate for trial;
27
(iii) request the Registrar of Military Justice to convene a
28
court martial to try the charge.
29
Note:
A charge referred to a Defence Force magistrate must be referred to
30
the magistrate nominated by the Judge Advocate General: see
31
subsection 129C(1).
32
10 After subsection 87(1)
33
Insert:
34
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
6 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
(1A) To avoid doubt, the powers of the Director of Military
1
Prosecutions under paragraph (1)(c) are in addition to, and not in
2
substitution for, his or her powers under paragraphs (1)(a) and (b).
3
11 Subsection 87(6)
4
Repeal the subsection, substitute:
5
(6) In this section:
6
authorized member of the Defence Force means:
7
(a) the Director of Military Prosecutions; or
8
(b) a member of the Defence Force, or a member of the Defence
9
Force included in a class of members of the Defence Force,
10
authorized, in writing, by a commanding officer for the
11
purposes of this section.
12
12 Subsection 88(1)
13
After "authorized officer", insert "or the Registrar of Military Justice".
14
13 After subsection 88(1)
15
Insert:
16
(1A) The Registrar of Military Justice may carry out an action under
17
subsection (1) only if a judge advocate or a Defence Force
18
magistrate directs the Registrar of Military Justice to carry out the
19
action.
20
14 Subsection 95(4)
21
Omit "a convening authority", substitute "a superior authority and the
22
Director of Military Prosecutions".
23
15 Subsection 95(5)
24
Omit "a convening authority", substitute "a superior authority and the
25
Director of Military Prosecutions".
26
16 Subsection 95(8)
27
Omit "convening authority", substitute "superior authority".
28
17 Subsection 95(8)
29
After "notify", insert "the Director of Military Prosecutions and".
30
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 7
18 Paragraph 97(5)(a)
1
Omit "a convening authority", substitute "the Director of Military
2
Prosecutions".
3
19 Division 1 of Part VII (heading)
4
Repeal the heading, substitute:
5
Division 1--Director of Military Prosecutions
6
20 Section 102
7
Repeal the section.
8
21 Subsection 103(1)
9
Omit "a convening authority", substitute "the Director of Military
10
Prosecutions".
11
Note:
The heading to section 103 is altered by omitting "convening authority" and
12
substituting "Director of Military Prosecutions".
13
22 Subsection 103(1)
14
Before "paragraph 109(b)", insert "subsection 105A(2),".
15
23 Subsection 103(1)
16
Omit "or 130(5)", substitute ", 130(5) or 131(4)".
17
24 Subsection 103(1)
18
Omit "the convening authority", substitute "the Director of Military
19
Prosecutions".
20
25 Paragraph 103(1)(c)
21
Before "refer", insert "request the Registrar of Military Justice to".
22
26 Paragraph 103(1)(d)
23
Before "convene", insert "request the Registrar of Military Justice to".
24
27 Subsection 103(1) (note)
25
Repeal the note, substitute:
26
Note 1:
See also paragraph 87(1)(c) for additional powers that may be
27
exercised by the Director of Military Prosecutions in relation to a
28
charge.
29
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
8 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
Note 2:
A charge referred to a Defence Force magistrate must be referred to
1
the magistrate nominated by the Judge Advocate General: see
2
subsection 129C(1).
3
28 Subsection 103(2)
4
Omit "a convening authority", substitute "the Director of Military
5
Prosecutions".
6
29 Paragraph 103(2)(d)
7
Before "refer", insert "request the Registrar of Military Justice to".
8
30 Paragraph 103(2)(e)
9
Before "convene", insert "request the Registrar of Military Justice to".
10
31 Subsection 103(3)
11
Omit "a convening authority", substitute "the Director of Military
12
Prosecutions".
13
32 Subsection 103(3)
14
Omit "the convening authority", substitute "the Director of Military
15
Prosecutions".
16
33 Paragraph 103(4)(b)
17
Omit "a convening authority", substitute "the Director of Military
18
Prosecutions".
19
34 Subsection 103(4)
20
Omit "the convening authority", substitute "the Director of Military
21
Prosecutions".
22
35 Paragraph 103(4)(d)
23
Before "refer", insert "request the Registrar of Military Justice to".
24
36 Paragraph 103(4)(e)
25
Omit "the authority", insert "the Director of Military Prosecutions".
26
37 Paragraph 103(4)(e)
27
Before "convene", insert "request the Registrar of Military Justice to".
28
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 9
38 Paragraph 103(5)(b)
1
Omit "a convening authority", substitute "the Director of Military
2
Prosecutions".
3
39 Subsection 103(5)
4
Omit "the convening authority", substitute "the Director of Military
5
Prosecutions".
6
40 Paragraph 103(5)(d)
7
Before "convene", insert "request the Registrar of Military Justice to".
8
41 Paragraph 103(6)(b)
9
Omit "a convening authority", substitute "the Director of Military
10
Prosecutions".
11
42 Subsection 103(6)
12
Omit "the convening authority", substitute "the Director of Military
13
Prosecutions".
14
43 Paragraph 103(6)(c)
15
Before "refer", insert "request the Registrar of Military Justice to".
16
44 Paragraph 103(6)(d)
17
Omit "the authority", insert "the Director of Military Prosecutions".
18
45 Paragraph 103(6)(d)
19
Before "convene", insert "request the Registrar of Military Justice to".
20
46 Paragraph 103(7)(b)
21
Omit "a convening authority", substitute "the Director of Military
22
Prosecutions".
23
47 Subsection 103(7)
24
Omit "the convening authority shall", substitute "the Director of
25
Military Prosecutions must request the Registrar of Military Justice to".
26
48 Subsections 103(8) to (11)
27
Repeal the subsections.
28
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
10 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
49 After section 105
1
Insert:
2
105A Referral of charge to Director of Military Prosecutions before
3
dealing with charge under section 109, 110 or 111
4
(1) This section applies if:
5
(a) a person has been charged with a service offence; and
6
(b) the charge has not yet been dealt with under section 109, 110
7
or 111.
8
(2) The person's commanding officer, or a superior officer in relation
9
to the person's commanding officer, may refer the charge to the
10
Director of Military Prosecutions.
11
(3) Subject to paragraph 103(1)(b), if a charge is referred to the
12
Director of Military Prosecutions under this section, the charge
13
must not be dealt with under section 109, 110 or 111.
14
Note:
Under paragraph 103(1)(b), the Director of Military Prosecutions may
15
refer a charge that is referred to him or her under this section to a
16
superior summary authority or a commanding officer for trial.
17
50 Paragraphs 109(b) and 110(1)(d)
18
Omit "a convening authority", substitute "the Director of Military
19
Prosecutions".
20
51 Subsection 119(1)
21
Omit "A convening authority shall", substitute "The Registrar of
22
Military Justice must".
23
52 Subsection 119(1) (note)
24
Omit "A convening authority must not appoint a person as a member,
25
reserve member or judge advocate", substitute "The Registrar of
26
Military Justice must not appoint a person as the judge advocate".
27
53 Subsections 119(2) and (3)
28
Repeal the subsections, substitute:
29
(2) At any time before a court martial assembles to try a charge, the
30
Registrar of Military Justice may:
31
(a) vary the order convening the court martial; or
32
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 11
(b) make an order under subsection (1) convening a new court
1
martial.
2
54 Subsection 120(1)
3
Omit "A convening authority shall", substitute "The Registrar of
4
Military Justice must".
5
55 Subsection 120(2)
6
Omit "convening authority shall", substitute "Registrar of Military
7
Justice must".
8
56 Sections 121, 122 and 123
9
Omit "the convening authority" (wherever occurring), substitute "the
10
Registrar of Military Justice".
11
57 Section 123 (note)
12
Omit "A convening authority must not appoint a person as a member,
13
reserve member or judge advocate", substitute "The Registrar of
14
Military Justice must not appoint a person as the judge advocate".
15
58 Paragraph 124(1)(f)
16
Omit "convening authority and request that authority", substitute
17
"Registrar of Military Justice and request the Registrar of Military
18
Justice".
19
59 Subsection 124(2)
20
Omit all the words after "situation", substitute "to the Registrar of
21
Military Justice and request the Registrar of Military Justice to appoint
22
as many new members or new reserve members, or both, as the
23
Registrar of Military Justice considers necessary.".
24
60 Subsection 124(3)
25
Omit "convening authority and request that authority", substitute
26
"Registrar of Military Justice and request the Registrar of Military
27
Justice".
28
61 Subsection 124(3) (note)
29
Omit "A convening authority", substitute "The Registrar of Military
30
Justice".
31
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
12 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
62 Subsection 125(1)
1
Omit "convening authority", substitute "judge advocate".
2
63 Subsection 125(1)
3
After "he or she may", insert "direct the Registrar of Military Justice
4
to".
5
64 Subsection 125(2)
6
Omit "convening authority shall", substitute "Registrar of Military
7
Justice must".
8
65 Subsection 125(3)
9
Omit "convening authority" (first occurring), substitute "judge
10
advocate".
11
66 Subsection 125(3)
12
Omit "convening authority shall", substitute "judge advocate must
13
direct the Registrar of Military Justice to".
14
67 Paragraph 125(4)(b)
15
Omit "convening authority", substitute "judge advocate".
16
68 Subsection 125(4)
17
Omit "the convening authority shall", substitute "the judge advocate
18
must direct the Registrar of Military Justice to".
19
69 Subsection 125(5)
20
Omit "a convening authority may", substitute "the Director of Military
21
Prosecutions may request the Registrar of Military Justice to".
22
70 Subsection 125(6)
23
Omit "a convening authority", substitute "the Registrar of Military
24
Justice".
25
71 Subsection 129A(1)
26
Repeal the subsection, substitute:
27
(1) If a charge or case has been referred to a Defence Force magistrate
28
under subparagraph 87(1)(c)(ii), section 103 or subsection (4) of
29
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 13
this section, the Registrar of Military Justice must terminate the
1
reference if:
2
(a) at a time before the Defence Force magistrate commences to
3
try the charge or hear the case, it appears to the Registrar of
4
Military Justice that, by reason of the exigencies of service,
5
or for any other reason, it is desirable to terminate the
6
reference; or
7
(b) at a time after the Defence Force magistrate commences to
8
try the charge or hear the case:
9
(i) it appears to the Defence Force magistrate that it would
10
not be in the interests of justice for the Defence Force
11
magistrate to continue; and
12
(ii) the Defence Force magistrate directs the Registrar of
13
Military Justice to terminate the reference.
14
72 Paragraph 129A(2)(a)
15
After "under", insert "subparagraph 87(1)(c)(ii),".
16
73 Subsection 129A(2)
17
Omit "a convening authority shall", substitute "the Registrar of Military
18
Justice must".
19
74 Subsection 129A(3)
20
Omit "a convening authority", substitute "the Registrar of Military
21
Justice".
22
75 Subsection 129A(3)
23
Omit "the convening authority", substitute "the Director of Military
24
Prosecutions".
25
76 Subsection 129A(4)
26
Omit "a convening authority", substitute "the Registrar of Military
27
Justice".
28
77 Paragraph 129A(4)(d)
29
Omit "the convening authority", substitute "the Director of Military
30
Prosecutions".
31
78 Subsection 129B(1)
32
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
14 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
Omit "A convening authority", substitute "The Registrar of Military
1
Justice".
2
Note:
The heading to section 129B is altered by omitting "Judge Advocate General to
3
nominate" and substituting "Appointment of".
4
79 Subsection 129B(1)
5
Omit all the words after paragraph (c), substitute:
6
if the Registrar of Military Justice believes the person to be:
7
(d) biased or likely to be biased; or
8
(e) likely to be thought, on reasonable grounds, to be biased.
9
80 Subsection 129B(2)
10
Repeal the subsection, substitute:
11
(2) The Registrar of Military Justice must not appoint a person as a
12
judge advocate of a court martial unless the Judge Advocate
13
General has nominated that person for that position.
14
(3) The appropriate service chief must make available, for the
15
purposes of a court martial, a defence member who is appointed to
16
be a member of that court martial.
17
81 Subsections 129C(1) and (2)
18
Omit "A convening authority", substitute "The Registrar of Military
19
Justice".
20
82 Subsection 130(5)
21
Omit "a convening authority", substitute "the Director of Military
22
Prosecutions".
23
83 Subsection 131(4)
24
Omit "a convening authority", substitute "the Director of Military
25
Prosecutions".
26
84 Subsection 131(5)
27
Omit "convening authority", substitute "Registrar of Military Justice".
28
85 Section 131A
29
Omit "a convening authority", substitute "the Director of Military
30
Prosecutions".
31
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 15
Note:
The heading to section 131A is altered by omitting "convening authority" and
1
substituting "Director of Military Prosecutions".
2
86 Paragraph 132(3)(a)
3
Omit "convening authority", substitute "Director of Military
4
Prosecutions".
5
87 Paragraph 135(3)(a)
6
Omit "convening authority", substitute "Director of Military
7
Prosecutions".
8
88 Subsection 137(1)
9
Omit "convening authority", substitute "superior authority".
10
89 Subsection 141(8)
11
Omit "a convening authority", substitute "the Director of Military
12
Prosecutions".
13
90 Paragraph 141A(1)(b)
14
Omit "a convening authority", substitute "the Director of Military
15
Prosecutions".
16
91 Subsection 141A(1)
17
Omit ", convening authority", substitute ", Director of Military
18
Prosecutions".
19
92 Subsections 145(1) and (3)
20
Omit "a convening authority", substitute "the Director of Military
21
Prosecutions".
22
93 Subsection 145A(1)
23
Omit "a convening authority", substitute "the Registrar of Military
24
Justice".
25
94 Subsection 145A(1)
26
Omit "the convening authority shall", substitute "the Registrar of
27
Military Justice must".
28
95 Subsection 145A(5)
29
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
16 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
Omit "the convening authority concerned", substitute "the Director of
1
Military Prosecutions and the Registrar of Military Justice".
2
96 At the end of paragraphs 149(a) to (fa)
3
Add "and".
4
97 At the end of section 149
5
Add:
6
; and (i) the duties of the Registrar of Military Justice.
7
98 Section 150A
8
Omit "convening authority", substitute "superior authority".
9
99 Part XI (heading)
10
Repeal the heading, substitute:
11
Part XI--Judge Advocate General, Deputy Judge
12
Advocates General, Chief Judge Advocate
13
and Registrar of Military Justice
14
100 Subsection 180(3)
15
After "appointed", insert "as the Judge Advocate General or".
16
101 Subsection 185(5)
17
Repeal the subsection, substitute:
18
(5) In the case of a defence member who is the Judge Advocate
19
General or a Deputy Judge Advocate General, if the remuneration
20
to which he or she would be entitled as the Judge Advocate
21
General or as a Deputy Judge Advocate General exceeds the pay to
22
which he or she is entitled as a defence member, he or she is to
23
receive, in respect of his or her office as the Judge Advocate
24
General or as a Deputy Judge Advocate General, only an amount
25
equal to the excess.
26
102 Subsection 188A(2)
27
Omit "3 years", substitute "5 years".
28
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 17
103 At the end of subsection 188A(3)
1
Add ", but must not hold office for a total of more than 10 years".
2
104 Paragraph 188C(a)
3
Repeal the paragraph, substitute:
4
(a) an officer holding a rank not lower than the naval rank of
5
commodore or the rank of brigadier or air commodore; and
6
105 At the end of Division 2 of Part XI
7
Add:
8
188E Remuneration
9
(1) The Chief Judge Advocate is to be paid the remuneration that is
10
determined by the Remuneration Tribunal. If no determination of
11
that remuneration by the Tribunal is in operation, he or she is to be
12
paid the remuneration that is prescribed.
13
(2) The Chief Judge Advocate is to be paid the allowances that are
14
prescribed.
15
(3) Subsections (1) and (2) have effect subject to the Remuneration
16
Tribunal Act 1973.
17
106 At the end of Part XI
18
Add:
19
Division 3--The Registrar of Military Justice
20
188F Registrar of Military Justice
21
There is to be a Registrar of Military Justice.
22
188FA Functions of the Registrar of Military Justice
23
(1) The function of the Registrar of Military Justice is to assist the
24
Judge Advocate General and the Chief Judge Advocate by
25
providing administrative and management services in connection
26
with charges and trials under this Act.
27
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
18 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
(2) In addition to his or her functions under subsection (1), the
1
Registrar of Military Justice also has:
2
(a) the functions conferred on the Registrar of Military Justice
3
by or under this Act or any other law of the Commonwealth;
4
and
5
(b) such other functions as are prescribed by the regulations.
6
188FB Appointment of the Registrar of Military Justice
7
(1) The Registrar of Military Justice is to be appointed by the Minister
8
by written instrument.
9
(2) The Registrar of Military Justice holds office on a full-time basis.
10
(3) The Registrar of Military Justice holds office on the terms and
11
conditions (if any) in respect of matters not provided for by this
12
Act that are determined by the Minister.
13
188FC Qualifications for appointment
14
A person must not be appointed as the Registrar of Military Justice
15
unless:
16
(a) the person is enrolled as a legal practitioner and has been so
17
enrolled for not less than 5 years; and
18
(b) the person is a member of the Permanent Navy, the Regular
19
Army or the Permanent Air Force or is a member of the
20
Reserves who is rendering continuous full-time service; and
21
(c) the person holds a rank not lower than the naval rank of
22
captain or the rank of colonel or group captain.
23
188FD Tenure
24
(1) The Registrar of Military Justice holds office for the period
25
specified in the instrument of appointment. The period must not
26
exceed 5 years.
27
(2) The Registrar of Military Justice is eligible for reappointment.
28
188FE Resignation
29
The Registrar of Military Justice may resign his or her appointment
30
by giving the Minister a written resignation.
31
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 19
188FF Oath or affirmation
1
(1) The Registrar of Military Justice must, before proceeding to
2
discharge the duties of his or her office, make and subscribe an
3
oath or affirmation in accordance with the form in Schedule 4.
4
(2) An oath or affirmation under this section is to be made before:
5
(a) the Judge Advocate General; or
6
(b) a Deputy Judge Advocate General; or
7
(c) the Chief Judge Advocate.
8
188FG Remuneration
9
(1) Subject to this section, the Registrar of Military Justice is to be
10
paid the remuneration that is determined by the Remuneration
11
Tribunal. If no determination of that remuneration by the Tribunal
12
is in operation, he or she is to be paid the remuneration that is
13
prescribed.
14
(2) The Registrar of Military Justice is to be paid the allowances that
15
are prescribed.
16
(3) Subsections (1) and (2) have effect subject to the Remuneration
17
Tribunal Act 1973.
18
188FH Leave of absence
19
(1) The Registrar of Military Justice has the recreation leave
20
entitlements that are determined by the Remuneration Tribunal.
21
(2) The Minister may grant the Registrar of Military Justice leave of
22
absence, other than recreation leave, on the terms and conditions as
23
to remuneration or otherwise that the Minister determines.
24
188FI Outside employment
25
The Registrar of Military Justice must not:
26
(a) engage in practice as a legal practitioner outside the duties of
27
his or her office; or
28
(b) without the approval of the Minister, engage in paid
29
employment outside the duties of his or her office.
30
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
20 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
188FJ Termination of appointment
1
(1) The Minister may terminate the appointment of the Registrar of
2
Military Justice for:
3
(a)
misbehaviour;
or
4
(b) physical or mental incapacity.
5
(2) The Minister must terminate the appointment of the Registrar of
6
Military Justice if the Registrar of Military Justice:
7
(a) becomes bankrupt, applies to take the benefit of any law for
8
the relief of bankrupt or insolvent debtors, compounds with
9
his or her creditors or makes an assignment of his or her
10
remuneration for their benefit; or
11
(b) is absent from duty, except on leave of absence, for 14
12
consecutive days or for 28 days in any 12 months; or
13
(c) engages in practice as a legal practitioner outside the duties
14
of his or her office; or
15
(d) without the approval of the Minister, engages in paid
16
employment outside the duties of his or her office; or
17
(e) fails, without reasonable excuse, to comply with his or her
18
obligations under section 188FK.
19
(3) The Registrar of Military Justice ceases to hold office if:
20
(a) he or she ceases to be enrolled as a legal practitioner; or
21
(b) he or she is no longer:
22
(i) a member of the Permanent Navy, the Regular Army or
23
the Permanent Air Force; or
24
(ii) a member of the Reserves who is rendering continuous
25
full-time service.
26
188FK Standing obligation to disclose interests
27
(1) The Registrar of Military Justice must disclose any interest that the
28
Registrar of Military Justice has if that interest could conflict with
29
the proper performance of the functions of his or her office.
30
Disclosure is required whether or not there is any particular matter
31
under consideration that gives rise to an actual conflict of interest.
32
(2) Subsection (1) applies to interests:
33
(a) whether direct or indirect, and whether or not pecuniary; and
34
(b) whether acquired before or after the person's appointment.
35
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 21
(3) The disclosure must be by notice in writing given to the Minister
1
as soon as practicable after the Registrar of Military Justice
2
becomes aware of the potential for conflict of interest.
3
188FL Acting appointments
4
(1) The Minister may appoint a person to act as the Registrar of
5
Military Justice:
6
(a) during a vacancy in the office, whether or not an appointment
7
has previously been made to that office; or
8
(b) during any period, or during all periods, when the Registrar
9
of Military Justice is absent from duty or from Australia, or
10
is, for any other reason, unable to perform the functions of
11
his or her office.
12
(2) Anything done by or in relation to a person purporting to act under
13
this section is not invalid merely because:
14
(a) the occasion for the appointment had not arisen; or
15
(b) there was a defect or irregularity in connection with the
16
appointment; or
17
(c) the appointment had ceased to have effect; or
18
(d) the occasion to act had not arisen or had ceased.
19
(3) The Minister must not appoint a person to act as the Registrar of
20
Military Justice unless:
21
(a) the person is enrolled as a legal practitioner and has been so
22
enrolled for not less than 5 years; and
23
(b) the person is a member of the Permanent Navy, the Regular
24
Army or the Permanent Air Force or is a member of the
25
Reserves who is rendering continuous full-time service; and
26
(c) the person holds a rank not lower than lieutenant commander,
27
major or squadron leader.
28
188FM Delegation
29
The Registrar of Military Justice may delegate all or any of his or
30
her powers and functions to:
31
(a) a defence member holding the rank of lieutenant commander,
32
major or squadron leader; or
33
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
22 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
(b) a person whose classification level appears in Group 5 or a
1
higher Group of Schedule 1 to the Classification Rules under
2
the Public Service Act 1999; or
3
(c) a person who is acting in a position usually occupied by a
4
person with a classification level of the kind mentioned in
5
paragraph (b).
6
107 After Part XI
7
Insert:
8
Part XIA--Director of Military Prosecutions
9
Division 1--Establishment and functions of the Director of
10
Military Prosecutions
11
188G Director of Military Prosecutions
12
There is to be a Director of Military Prosecutions.
13
188GA Functions of the Director of Military Prosecutions
14
(1) The Director of Military Prosecutions has the following functions:
15
(a) to carry on prosecutions for service offences in proceedings
16
before a Defence Force magistrate or a court martial, whether
17
or not instituted by the Director of Military Prosecutions;
18
(b) to seek the consent of the Director of Public Prosecutions as
19
required by section 63;
20
(c) to make statements or give information to particular persons
21
or to the public relating to the exercise of powers or the
22
performance of duties or functions under this Act;
23
(d) to represent the service chiefs in proceedings before the
24
Defence Force Discipline Appeal Tribunal;
25
(e) to do anything incidental or conducive to the performance of
26
any of the preceding functions.
27
(2) In addition to his or her functions under subsection (1), the
28
Director of Military Prosecutions also has:
29
(a) the functions conferred on the Director of Military
30
Prosecutions by or under this Act or any other law of the
31
Commonwealth; and
32
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 23
(b) such other functions as are prescribed by the regulations.
1
188GB Appearances by and on behalf of Director of Military
2
Prosecutions
3
In a trial of a charge by a court martial or a Defence Force
4
magistrate, the Director of Military Prosecutions:
5
(a) may appear in person; or
6
(b) if the Director of Military Prosecutions so authorises, may be
7
represented by:
8
(i) if the trial is held in Australia--a member of the
9
Defence Force or a legal practitioner; or
10
(ii) if the trial is held in a place outside Australia--a person
11
referred to in subparagraph (i) or a person qualified to
12
practise before the courts of that place.
13
188GC Right of Director of Military Prosecutions and staff to
14
practise in their official capacity
15
The Director of Military Prosecutions, or a person assisting the
16
Director of Military Prosecutions who is a legal officer, is, in his or
17
her official capacity:
18
(a) entitled to practise as a barrister, solicitor, or barrister and
19
solicitor, in a federal court or in a court of a State or
20
Territory; and
21
(b) entitled to all the rights and privileges of a barrister, solicitor,
22
or barrister and solicitor, as the case may be, in that court;
23
whether or not he or she would, but for this section, be entitled to
24
practise in that court.
25
188GD Undertakings by the Director of Military Prosecutions
26
(1) The Director of Military Prosecutions may, if he or she considers it
27
appropriate to do so, give to a person an undertaking that:
28
(a) an answer that is given, or a statement or disclosure that is
29
made, by the person in the course of giving evidence in
30
proceedings for a service offence; or
31
(b) the fact that the person discloses or produces a document or
32
other thing in proceedings for a service offence; or
33
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
24 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
(c) any information, document or other thing that is obtained as a
1
direct or indirect consequence of an answer that is given, a
2
statement or disclosure that is made, or a document or other
3
thing that is disclosed or produced in proceedings for a
4
service offence;
5
will not be used in evidence against the person in any other
6
proceedings for a service offence.
7
(2) If the Director of Military Prosecutions gives an undertaking under
8
subsection (1):
9
(a) an answer that is given, or a statement or disclosure that is
10
made, by the person in the course of giving evidence in the
11
proceedings; or
12
(b) the fact that the person discloses or produces a document or
13
other thing in the proceedings; or
14
(c) any information, document or other thing that is obtained as
15
mentioned in paragraph (1)(c);
16
as the case may be, is not admissible in evidence against the person
17
in any other proceedings for a service offence, other than
18
proceedings in respect of the falsity of evidence given by the
19
person.
20
(3) The Director of Military Prosecutions may, if he or she considers it
21
appropriate to do so, give to a person an undertaking that the
22
person will not be prosecuted:
23
(a) for a specified service offence; or
24
(b) in respect of specified acts or omissions that constitute, or
25
may constitute, a service offence.
26
(4) If the Director of Military Prosecutions gives an undertaking to a
27
person under subsection (3), no prosecution may be instituted
28
against the person in respect of the specified service offence or a
29
service offence in respect of the specified acts or omissions.
30
(5) An undertaking under subsection (3) may be subject to any
31
conditions that the Director of Military Prosecutions considers
32
appropriate.
33
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 25
188GE Directions and guidelines by the Director of Military
1
Prosecutions
2
(1) The Director of Military Prosecutions may, by legislative
3
instrument, give directions, or provide guidelines, in relation to the
4
prosecution of service offences to:
5
(a) a person who is an investigating officer within the meaning
6
of Part VI; or
7
(b) any other person who institutes or carries on prosecutions for
8
service offences.
9
(2) Without limiting the generality of subsection (1), directions or
10
guidelines under that subsection may relate to particular cases and
11
may specify:
12
(a) a service offence, being an offence a matter relating to which
13
is to be referred to the Director of Military Prosecutions for
14
the institution or carrying on of a prosecution for that
15
offence; or
16
(b) a class of service offences, being offences matters relating to
17
which are to be referred to the Director of Military
18
Prosecutions for the institution or carrying on of prosecutions
19
for those offences.
20
(3) The Director of Military Prosecutions must give to the Minister a
21
copy of each direction given or guideline provided under
22
subsection (1).
23
Note:
The annual report prepared by the Director of Military Prosecutions
24
for a year under section 196B must include a copy of each direction
25
given or guideline provided under this section in the year, and a copy
26
of each direction given or guideline provided under this section as in
27
force at the end of that year.
28
Division 2--Administrative provisions about the Director
29
of Military Prosecutions
30
188GF Appointment of the Director of Military Prosecutions
31
(1) The Director of Military Prosecutions is to be appointed by the
32
Minister by written instrument.
33
(2) The Director of Military Prosecutions holds office on a full-time
34
basis.
35
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
26 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
(3) The Director of Military Prosecutions holds office on the terms and
1
conditions (if any) in relation to matters not covered by this Act
2
that are determined by the Minister.
3
188GG Qualifications for appointment
4
A person must not be appointed as the Director of Military
5
Prosecutions unless:
6
(a) the person is enrolled as a legal practitioner and has been so
7
enrolled for not less than 5 years; and
8
(b) the person is a member of the Permanent Navy, the Regular
9
Army or the Permanent Air Force or is a member of the
10
Reserves who is rendering continuous full-time service; and
11
(c) the person holds a rank not lower than the naval rank of
12
commodore or the rank of brigadier or air commodore.
13
188GH Tenure
14
(1) The Director of Military Prosecutions holds office for the period
15
specified in the instrument of appointment. The period must not
16
exceed 5 years.
17
(2) The Director of Military Prosecutions is eligible for reappointment,
18
but must not hold office for a total of more than 10 years.
19
188GI Resignation
20
The Director of Military Prosecutions may resign his or her
21
appointment by giving the Minister a written resignation.
22
188GJ Oath or affirmation
23
(1) The Director of Military Prosecutions must, before proceeding to
24
discharge the duties of his or her office, make and subscribe an
25
oath or affirmation in accordance with the form in Schedule 4.
26
(2) An oath or affirmation under this section is to be made before:
27
(a) the Judge Advocate General; or
28
(b) a Deputy Judge Advocate General; or
29
(c) the Chief Judge Advocate.
30
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 27
188GK Remuneration
1
(1) The Director of Military Prosecutions is to be paid the
2
remuneration that is determined by the Remuneration Tribunal. If
3
no determination of that remuneration by the Tribunal is in
4
operation, he or she is to be paid the remuneration that is
5
prescribed.
6
(2) The Director of Military Prosecutions is to be paid the allowances
7
that are prescribed.
8
(3) Subsections (1) and (2) have effect subject to the Remuneration
9
Tribunal Act 1973.
10
188GL Leave of absence
11
(1) The Director of Military Prosecutions has the recreation leave
12
entitlements that are determined by the Remuneration Tribunal.
13
(2) The Minister may grant the Director of Military Prosecutions leave
14
of absence, other than recreation leave, on the terms and conditions
15
as to remuneration or otherwise that the Minister determines.
16
188GM Outside employment
17
The Director of Military Prosecutions must not:
18
(a) engage in practice as a legal practitioner outside the duties of
19
his or her office; or
20
(b) without the approval of the Minister, engage in paid
21
employment outside the duties of his or her office.
22
188GN Termination of appointment
23
(1) The Minister may terminate the appointment of the Director of
24
Military Prosecutions for:
25
(a)
misbehaviour;
or
26
(b) physical or mental incapacity.
27
(2) The Minister must terminate the appointment of the Director of
28
Military Prosecutions if the Director of Military Prosecutions:
29
(a) becomes bankrupt, applies to take the benefit of any law for
30
the relief of bankrupt or insolvent debtors, compounds with
31
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
28 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
his or her creditors or makes an assignment of his or her
1
remuneration for their benefit; or
2
(b) is absent from duty, except on leave of absence, for 14
3
consecutive days or for 28 days in any 12 months; or
4
(c) engages in practice as a legal practitioner outside the duties
5
of his or her office; or
6
(d) without the approval of the Minister, engages in paid
7
employment outside the duties of his or her office; or
8
(e) fails, without reasonable excuse, to comply with his or her
9
obligations under section 188GO.
10
(3) The Director of Military Prosecutions ceases to hold office if:
11
(a) he or she ceases to be enrolled as a legal practitioner; or
12
(b) he or she is no longer:
13
(i) a member of the Permanent Navy, the Regular Army or
14
the Permanent Air Force; or
15
(ii) a member of the Reserves who is rendering continuous
16
full-time service.
17
188GO Standing obligation to disclose interests
18
(1) The Director of Military Prosecutions must disclose any interest
19
that the Director of Military Prosecutions has if that interest could
20
conflict with the proper performance of the functions of his or her
21
office. Disclosure is required whether or not there is any particular
22
matter under consideration that gives rise to an actual conflict of
23
interest.
24
(2) Subsection (1) applies to interests:
25
(a) whether direct or indirect, and whether or not pecuniary; and
26
(b) whether acquired before or after the person's appointment.
27
(3) The disclosure must be by notice in writing given to the Minister
28
as soon as practicable after the Director of Military Prosecutions
29
becomes aware of the potential for conflict of interest.
30
188GP Acting appointments
31
(1) The Minister may appoint a person to act as the Director of
32
Military Prosecutions:
33
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 29
(a) during a vacancy in the office, whether or not an appointment
1
has previously been made to that office; or
2
(b) during any period, or during all periods, when the Director of
3
Military Prosecutions is absent from duty or from Australia,
4
or is, for any other reason, unable to perform the functions of
5
his or her office.
6
(2) Anything done by or in relation to a person purporting to act under
7
this section is not invalid merely because:
8
(a) the occasion for the appointment had not arisen; or
9
(b) there was a defect or irregularity in connection with the
10
appointment; or
11
(c) the appointment had ceased to have effect; or
12
(d) the occasion to act had not arisen or had ceased.
13
(3) The Minister must not appoint a person to act as the Director of
14
Military Prosecutions unless:
15
(a) the person is enrolled as a legal practitioner and has been so
16
enrolled for not less than 5 years; and
17
(b) the person is a member of the Permanent Navy, the Regular
18
Army or the Permanent Air Force or is a member of the
19
Reserves who is rendering continuous full-time service; and
20
(c) the person holds a rank not lower than the naval rank of
21
commander or the rank of lieutenant-colonel or wing
22
commander.
23
188GQ Staff
24
The staff necessary to assist the Director of Military Prosecutions
25
are to be the following:
26
(a) defence members made available for the purpose by the
27
appropriate service chief;
28
(b) persons engaged under the Public Service Act 1999 and made
29
available for the purpose by the Secretary of the Department.
30
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
30 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
Division 3--Other matters
1
188GR Delegation
2
The Director of Military Prosecutions may delegate all or any of
3
his or her powers to a defence member mentioned in paragraph
4
188GQ(a) who is a legal officer.
5
108 After subsection 193(1)
6
Insert:
7
(1A) The Judge Advocate General has, in the performance of his or her
8
duties as the Judge Advocate General, the same protection and
9
immunity as a Justice of the High Court.
10
109 At the end of section 193
11
Add:
12
(4) An action, suit or proceeding does not lie against:
13
(a) the Director of Military Prosecutions or a person assisting the
14
Director of Military Prosecution; or
15
(b) the Registrar of Military Justice or a person assisting the
16
Registrar of Military Justice;
17
in relation to an act done or omitted to be done in good faith in the
18
exercise or purported exercise of a power, or the performance or
19
purported performance of a function, conferred by or under this
20
Act or any other law of the Commonwealth.
21
110 Subsection 194(7)
22
Omit "a convening authority", substitute "the Director of Military
23
Prosecutions".
24
111 Subsection 194(7)
25
Omit "the convening authority", substitute "the Director of Military
26
Prosecutions".
27
112 After section 196A
28
Insert:
29
Director of Military Prosecutions and Registrar of Military Justice Schedule 1
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 31
196B Annual report relating to the operations of the Director of
1
Military Prosecutions
2
(1) The Director of Military Prosecutions must, as soon as practicable
3
after each 31 December, prepare and give to the Minister, for
4
presentation to the Parliament, a report relating to the operations of
5
the Director of Military Prosecutions during the year ending on
6
that 31 December.
7
(2) A report under subsection (1) must:
8
(a) set out such statistical information as the Director of Military
9
Prosecutions considers appropriate; and
10
(b)
include:
11
(i) a copy of each direction given or guideline provided
12
under subsection 188GE(1) during the year to which the
13
report relates; and
14
(ii) a copy of each such direction or guideline as in force at
15
the end of that year.
16
(3) The first report under subsection (1) is to relate to the period
17
beginning on the day on which this section commences and ending
18
on the next 31 December.
19
113 Schedule 4 (note to heading)
20
Omit "Sections 128 and 184", substitute "Sections 128, 184, 188FF and
21
188GJ".
22
114 Transitional provision--functions and powers of
23
convening authorities
24
(1)
This item applies to a function or power conferred on a convening
25
authority by the old law if:
26
(a) the function or power relates to a charge (including a
27
proceeding in respect of a charge); and
28
(b) as at the commencement time, the charge or proceeding had
29
not been finally dealt with under the old law.
30
(2) If:
31
(a) the convening authority performed the function or exercised
32
the power before the commencement time; and
33
Schedule 1 Director of Military Prosecutions and Registrar of Military Justice
32 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
(b) a provision of the new law confers a corresponding function
1
or power upon a designated person;
2
the new law has effect as if the designated person had performed the
3
function, or exercised the power, under the new law.
4
(3) If:
5
(a) apart from the amendments made by this Schedule, the
6
convening authority would have been required or permitted
7
to perform the function or exercise the power; and
8
(b) the new law confers a corresponding function or power upon
9
a designated person;
10
the designated person may perform the function, or exercise the power,
11
under the new law.
12
(4)
In this item:
13
commencement time means the time at which item 1 of this Schedule
14
commences.
15
designated person means:
16
(a) the Director of Military Prosecutions; or
17
(b) the Registrar of Military Justice; or
18
(c) a judge advocate; or
19
(d) a Defence Force magistrate; or
20
(e) a superior authority.
21
new law means the Defence Force Discipline Act 1982 as amended by
22
this Schedule.
23
old law means the Defence Force Discipline Act 1982 as in force before
24
the commencement time.
25
115 Regulations
26
The Governor-General may make regulations in relation to transitional
27
matters arising out of the amendments of the Defence Force Discipline
28
Act 1982 made by this Schedule.
29
Inspector-General of the Australian Defence Force Schedule 2
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 33
1
Schedule 2--Inspector-General of the
2
Australian Defence Force
3
4
Defence Act 1903
5
1 Subsection 4(1)
6
Insert:
7
Inspector-General ADF means the Inspector-General of the
8
Australian Defence Force referred to in section 110B.
9
2 After Part VIIIA
10
Insert:
11
Part VIIIB--Inspector-General of the Australian
12
Defence Force
13
Division 1--Establishment and functions of the
14
Inspector-General of the Australian Defence
15
Force
16
110A Object of Part
17
The object of this Part is to provide the Chief of the Defence Force
18
with:
19
(a) a mechanism for internal audit and review of the military
20
justice system independent of the ordinary chain of
21
command; and
22
(b) an avenue by which failures and flaws in the military justice
23
system can be exposed and examined so that the cause of any
24
injustice (whether systemic or otherwise) may be remedied.
25
110B Inspector-General of the Australian Defence Force
26
There is to be an Inspector-General of the Australian Defence
27
Force, to be known as the Inspector-General ADF.
28
Schedule 2 Inspector-General of the Australian Defence Force
34 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
110C Functions of the Inspector-General ADF
1
(1) The Inspector-General ADF has the following functions:
2
(a) to inquire into or investigate matters concerning the military
3
justice system;
4
(b) to conduct performance reviews of the military justice
5
system, including internal audits, at the times and in the
6
manner the Inspector-General ADF considers appropriate;
7
(c) to advise on matters concerning the military justice system,
8
including making recommendations for improvements;
9
(d) to promote military justice values across the Defence Force;
10
(e) to do anything incidental or conducive to the performance of
11
any of the preceding functions.
12
(2) In addition to his or her functions under subsection (1), the
13
Inspector-General ADF also has:
14
(a) the functions conferred on the Inspector-General ADF by or
15
under this Act or any other law of the Commonwealth; and
16
(b) such other functions as are prescribed by the regulations.
17
(3) The function referred to in paragraph (1)(a) includes the following:
18
(a) carrying out preliminary assessments as to whether an
19
inquiry or investigation should be conducted by the
20
Inspector-General ADF;
21
(b) referring matters to other appropriate authorities to be dealt
22
with.
23
Note:
The regulations may make provision in relation to the procedures and
24
powers of the Inspector-General ADF in respect of the performance of
25
the Inspector-General ADF's functions (see paragraph 124(1)(h)).
26
110D When the Inspector-General ADF can conduct inquiries or
27
investigations
28
(1) The Inspector-General ADF may conduct an inquiry or an
29
investigation on his or her own initiative.
30
(2) The Inspector-General ADF may be directed to conduct an inquiry
31
or an investigation by the Chief of the Defence Force.
32
(3) The Inspector-General ADF may be requested to conduct an
33
inquiry or an investigation by a service chief, but is not required to
34
comply with the request.
35
Inspector-General of the Australian Defence Force Schedule 2
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 35
(4) The Inspector-General ADF may be requested to conduct an
1
inquiry or an investigation by any other individual, but is not
2
required to comply with the request.
3
Division 2--Administrative provisions about the
4
Inspector-General of the Australian Defence
5
Force
6
110E Appointment
7
(1) The Inspector-General ADF is to be appointed by the Minister by
8
written instrument.
9
(2) In making an appointment under subsection (1), the Minister must
10
have regard to any recommendations made by the Chief of the
11
Defence Force.
12
(3) The Inspector-General ADF holds office on a full-time basis.
13
(4) A person holding office as the Inspector-General ADF holds office
14
on the terms and conditions (if any) in relation to matters not
15
covered by this Act that are determined by the Minister.
16
110F Qualifications for appointment
17
A person must not be appointed as the Inspector-General ADF
18
unless the person has knowledge of and experience in relation to
19
military justice issues and an understanding of their relevance to
20
the role of the Defence Force.
21
110G Tenure
22
(1) The Inspector-General ADF holds office for the period specified in
23
the instrument of appointment. The period must not exceed 5 years.
24
(2) The Inspector-General ADF is eligible for reappointment.
25
110H Resignation
26
The Inspector-General ADF may resign his or her appointment by
27
giving the Minister a written resignation.
28
Schedule 2 Inspector-General of the Australian Defence Force
36 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
110I Remuneration
1
(1) The Inspector-General ADF is to be paid the remuneration that is
2
determined by the Remuneration Tribunal. If no determination of
3
that remuneration by the Tribunal is in operation, he or she is to be
4
paid the remuneration that is prescribed.
5
(2) The Inspector-General ADF is to be paid the allowances that are
6
prescribed.
7
(3) This section has effect subject to the Remuneration Tribunal Act
8
1973.
9
110J Leave of absence
10
(1) The Inspector-General ADF has the recreation leave entitlements
11
that are determined by the Remuneration Tribunal.
12
(2) The Chief of the Defence Force may grant the Inspector-General
13
ADF leave of absence, other than recreation leave, on the terms
14
and conditions as to remuneration or otherwise that the Chief of the
15
Defence Force determines.
16
110K Engaging in other paid work
17
The Inspector-General ADF must not engage in paid employment
18
outside the duties of his or her office without the Minister's
19
consent.
20
110L Termination of appointment
21
(1) The Minister must terminate the appointment of the
22
Inspector-General ADF if the Inspector-General ADF:
23
(a) becomes bankrupt; or
24
(b) applies to take the benefit of any law for the relief of
25
bankrupt or insolvent debtors; or
26
(c) compounds with his or her creditors; or
27
(d) assigns his or her remuneration for the benefit of his or her
28
creditors; or
29
(e) is absent from duty, except on leave of absence, for 14
30
consecutive days or for 28 days in any 12 months; or
31
Inspector-General of the Australian Defence Force Schedule 2
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 37
(f) fails, without reasonable excuse, to comply with
1
section 110M.
2
(2) The Minister may terminate the appointment of the
3
Inspector-General ADF on the ground of:
4
(a)
misbehaviour;
or
5
(b) physical or mental incapacity.
6
(3) The Minister may terminate the appointment of the
7
Inspector-General ADF if the Inspector-General ADF engages in
8
paid employment outside the duties of his or her office other than
9
with the Minister's consent.
10
110M Disclosure of interests
11
The Inspector-General ADF must give written notice to the
12
Minister of all interests (financial or otherwise) that the
13
Inspector-General ADF has or acquires that could conflict with the
14
proper performance of the functions of his or her office.
15
110N Acting appointments
16
(1) The Minister may appoint a person to act as the Inspector-General
17
ADF:
18
(a) during a vacancy in the office of Inspector-General ADF
19
(whether or not an appointment has previously been made to
20
that office); or
21
(b) during any period, or during all periods, when the
22
Inspector-General ADF is absent from duty or from
23
Australia, or is, for any other reason, unable to perform the
24
duties of the office.
25
(2) Anything done by or in relation to a person purporting to act under
26
an appointment under this section is not invalid merely because:
27
(a) the occasion for the appointment had not arisen; or
28
(b) there was a defect or irregularity in connection with the
29
appointment; or
30
(c) the appointment had ceased to have effect; or
31
(d) the occasion to act had not arisen or had ceased.
32
(3) The Minister must not appoint a person to act as the
33
Inspector-General ADF unless the person has knowledge of and
34
Schedule 2 Inspector-General of the Australian Defence Force
38 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
experience in relation to military justice issues and an
1
understanding of their relevance to the role of the Defence Force.
2
(4) In making an appointment under subsection (1), the Minister must
3
have regard to any recommendations made by the Chief of the
4
Defence Force.
5
110O Staff
6
(1) The staff necessary to assist the Inspector-General ADF are to be
7
the following:
8
(a) members of the Defence Force made available for the
9
purpose by the appropriate service chief;
10
(b) persons engaged under the Public Service Act 1999 and made
11
available for the purpose by the Secretary of the Department.
12
(2) The Inspector-General ADF may engage persons having suitable
13
qualifications and experience as consultants to, or to perform
14
services for, the Inspector-General ADF.
15
(3) An engagement under subsection (2) is to be made:
16
(a) on behalf of the Commonwealth; and
17
(b) by written agreement.
18
Division 3--Other matters
19
110Q Protection from civil actions
20
(1) This section applies to the following persons (protected persons):
21
(a) the Inspector-General ADF;
22
(b) a person acting under the authority of the Inspector-General
23
ADF.
24
(2) A protected person is not liable to civil proceedings for loss,
25
damage or injury of any kind suffered by another person as a result
26
of the performance or exercise, in good faith, of the protected
27
person's functions, powers or duties under or in relation to this
28
Act.
29
Inspector-General of the Australian Defence Force Schedule 2
Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005 39
110R Reports
1
The Inspector-General ADF must prepare and give to the Chief of
2
the Defence Force such reports on the operations of the
3
Inspector-General ADF as the Chief of the Defence Force directs.
4
3 After section 110O
5
Insert:
6
110P Inquiry officers, inquiry assistants and Assistants IGADF
7
(1) The Inspector-General ADF may appoint a person as:
8
(a) an inquiry officer; or
9
(b) an inquiry assistant; or
10
(c) an Assistant IGADF.
11
(2) The Inspector-General ADF must not appoint a person under
12
subsection (1) unless the person is eligible to be so appointed under
13
the regulations.
14
(3) The regulations may prescribe matters relating to the roles,
15
functions and powers of a person appointed under subsection (1).
16
4 After section 110R
17
Insert:
18
110S Delegation
19
The Inspector-General ADF may, by instrument in writing,
20
delegate his or her power under section 110P to an officer holding
21
a rank not lower than the naval rank of captain or the rank of
22
colonel or group captain.
23
5 After paragraph 124(1)(gc)
24
Insert:
25
(h) the procedures, powers and reporting obligations of the
26
Inspector-General ADF in respect of the performance of the
27
Inspector-General ADF's functions, including in relation to
28
any matter connected with inquiries, investigations and
29
performance reviews;
30
Schedule 2 Inspector-General of the Australian Defence Force
40 Defence Legislation Amendment Bill (No. 2) 2005 No. , 2005
6 Saving provision in relation to certain regulations
1
(1)
Part 7 of the Defence (Inquiry) Regulations 1985, as in force
2
immediately before the commencement of Part VIIIB of the Defence
3
Act 1903, continues in force, on and after that commencement, as if it
4
had been made under paragraph 124(1)(h) of the Defence Act 1903.
5
(2)
Any inquiry that, immediately before the commencement of Part VIIIB
6
of the Defence Act 1903, was being conducted under Part 7 of the
7
Defence (Inquiry) Regulations 1985, is taken after that commencement
8
to continue under the regulations continued in force by subitem (1).
9
(3)
Subitem (1) does not prevent the amendment or repeal of Part 7 of the
10
Defence (Inquiry) Regulations 1985.
11
7 Transitional regulations
12
The Governor-General may make regulations in relation to transitional
13
matters arising out of the amendments of the Defence Act 1903 made by
14
this Schedule.
15

 

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