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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Defence Legislation (Enhancement of
Military Justice) Bill 2015
No. , 2015
(Defence)
A Bill for an Act to amend legislation relating to
defence, and for other purposes
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Main amendments
3
Defence Force Discipline Act 1982
3
Schedule 2--Director of Defence Counsel Services
11
Defence Act 1903
11
Defence Force Discipline Act 1982
14
Schedule 3--Amendments relating to certain office holders
15
Military Justice (Interim Measures) Act (No. 1) 2009
15
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
1
A Bill for an Act to amend legislation relating to
1
defence, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Defence Legislation (Enhancement of
5
Military Justice) Act 2015.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
2
Defence Legislation (Enhancement of Military Justice) Bill 2015
No. , 2015
3 Schedules
1
Legislation that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Main amendments Schedule 1
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
3
Schedule 1
--Main amendments
1
2
Defence Force Discipline Act 1982
3
1 Subsection 3(1) (definition of old system offence)
4
Repeal the definition.
5
2 Subsection 3(1) (definition of previous service law)
6
Repeal the definition.
7
3 Subsection 3(1) (subparagraph (b)(ii) of the definition of
8
service offence)
9
Omit "civilian; or", substitute "civilian.".
10
4 Subsection 3(1) (paragraph (c) of the definition of service
11
offence)
12
Repeal the paragraph.
13
5 Subsection 3(1) (at the end of the definition of service
14
offence)
15
Add:
16
Note:
A service offence is an offence against a law of the Commonwealth:
17
see section 3A.
18
6 Subsection 3(15)
19
Repeal the subsection.
20
7 After section 3
21
Insert:
22
3A Character of service offences
23
For the purposes of any law of the Commonwealth other than this
24
Act or the regulations, a service offence is an offence against a law
25
of the Commonwealth.
26
8 Section 10
27
Omit ", other than old system offences".
28
Schedule 1 Main amendments
4
Defence Legislation (Enhancement of Military Justice) Bill 2015
No. , 2015
9 Subsection 11(4)
1
Repeal the subsection.
2
10 After section 33
3
Insert:
4
33A Assault occasioning actual bodily harm
5
A person who is a defence member or a defence civilian is guilty
6
of an offence if:
7
(a) the person is:
8
(i) on service land; or
9
(ii) in a service ship, service aircraft or service vehicle; or
10
(iii) in a public place; and
11
(b) the person assaults another person; and
12
(c) the assault causes actual bodily harm to the other person.
13
Penalty: Imprisonment for 5 years.
14
11 Paragraphs 40D(1)(d) and (2)(d)
15
Omit "$100", substitute "3 penalty units".
16
12 At the end of Subdivision C of Division 5A of Part III
17
Add:
18
47Q Unauthorised use of Commonwealth credit card
19
(1) A person who is a defence member or a defence civilian is guilty
20
of an offence if the person uses a Commonwealth credit card, or a
21
Commonwealth credit card number, to obtain cash, goods or
22
services otherwise than for the Commonwealth.
23
Maximum punishment:
Imprisonment for 5 years.
24
(2) Subsection (1) does not apply to a particular use of a
25
Commonwealth credit card or Commonwealth credit card number
26
if the person has lawful authority for the use.
27
Note:
The defendant bears an evidential burden in relation to the matter in
28
subsection (2). See subsection 13.3(3) of the Criminal Code.
29
(3) In this section:
30
Main amendments Schedule 1
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
5
Commonwealth credit card means a credit card issued to, or made
1
available for use by, the Commonwealth to enable the
2
Commonwealth to obtain cash, goods or services on credit.
3
13 Paragraphs 59(3)(f), (5)(e) and (6)(e)
4
Omit "$100", substitute "3 penalty units".
5
14 Section 62
6
Repeal the section, substitute:
7
62 Commanding or ordering a service offence to be committed
8
(1) A defence member who commands or orders a person to commit a
9
service offence (the relevant service offence) is guilty of an
10
offence.
11
Maximum punishment:
12
(a) if the relevant service offence is punishable by a fixed
13
punishment--that fixed punishment; or
14
(b) otherwise--a punishment that is not more severe than the
15
maximum punishment for the relevant service offence.
16
(2) For the defence member to be guilty, the defence member must be
17
reckless as to whether the relevant service offence is committed.
18
(3) Subsection (2) has effect subject to subsection (6).
19
(4) The defence member may be found guilty even if:
20
(a) the relevant service offence is not committed; or
21
(b) committing the relevant service offence is impossible.
22
(5) Any defences, procedures, limitations or qualifying provisions that
23
apply to the relevant service offence apply also to the offence of
24
commanding or ordering a person to commit the relevant service
25
offence.
26
(6) Any special liability provisions (within the meaning of the
27
Criminal Code) that apply to the relevant service offence apply
28
also to the offence of commanding or ordering a person to commit
29
the relevant service offence.
30
Schedule 1 Main amendments
6
Defence Legislation (Enhancement of Military Justice) Bill 2015
No. , 2015
(7) It is not an offence to command or order a person to commit an
1
offence against any of the following provisions of the Criminal
2
Code:
3
(a) section 11.1 (attempt);
4
(b) section 11.4 (incitement);
5
(c) section 11.5 (conspiracy).
6
15 Section 65
7
Repeal the section.
8
16 Subparagraph 68(1)(h)(ii)
9
Omit "$500", substitute "15 penalty units".
10
17 Subsection 72(1)
11
Omit "Sections 16, 19A to 19AZD (other than section 19AH), 20, 20A
12
and 20AA of the Crimes Act 1914", substitute "Sections 16 and 19A to
13
19AZD (other than section 19AH) of the Crimes Act 1914 (the applied
14
Crimes Act provisions)".
15
18 After subsection 72(1)
16
Insert:
17
(1A) Despite the applied Crimes Act provisions, a service tribunal that
18
imposes a punishment of imprisonment for a specific period (the
19
sentence) on a convicted person:
20
(a) must not make a recognizance release order in relation to the
21
person; and
22
(b) may fix a non-parole period in respect of the sentence, even
23
if:
24
(i) the sentence does not exceed 3 years; or
25
(ii) if 2 or more sentences are imposed--the sentences in
26
the aggregate do not exceed 3 years.
27
19 Subsection 72(2)
28
Omit "the provisions of the Crimes Act 1914 as applied by virtue of
29
subsection (1) to the service tribunal shall", substitute "the applied
30
Crimes Act provisions, as modified by subsection (1A), is to".
31
Main amendments Schedule 1
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
7
20 At the end of section 72
1
Add:
2
(3) In addition to the effect of the provisions of Division 5 of Part IB
3
of the Crimes Act 1914 (as applied by subsection (1) and modified
4
by subsection (1A)), those provisions have the same effect in
5
relation to a non-parole period fixed by a service tribunal in respect
6
of a sentence of, or sentences aggregating, 3 years or less as those
7
provisions have in relation to a non-parole period fixed by a
8
service tribunal in respect of a sentence of, or sentences
9
aggregating, more than 3 years but less than 10 years.
10
21 Subsection 79(2)
11
Omit "an amount not less than $100", substitute "3 penalty units or
12
more".
13
22 Subsection 96(5)
14
Repeal the subsection.
15
23 Subsection 105A(2)
16
Repeal the subsection, substitute:
17
(2) The charge may be referred to the Director of Military
18
Prosecutions by:
19
(a) a commanding officer in relation to the person; or
20
(b) an officer who is superior to a commanding officer.
21
24 Section 131B
22
Repeal the section.
23
25 At the end of paragraphs 142(1)(a), (b), (ba) and (c)
24
Add "and".
25
26 Paragraph 142(1)(d)
26
Omit "offence; and", substitute "offence.".
27
27 Paragraph 142(1)(e)
28
Repeal the paragraph.
29
Schedule 1 Main amendments
8
Defence Legislation (Enhancement of Military Justice) Bill 2015
No. , 2015
28 Paragraph 144(4)(b)
1
Repeal the paragraph.
2
29 Section 169BB (cell at table item 2, column headed
3
"Relevant discipline officer")
4
Repeal the cell, substitute:
5
Any discipline officer
30 After section 190
6
Insert:
7
190A Disclosing certain convictions of service offences by a court
8
martial or a Defence Force magistrate
9
(1) This section applies if, before or after the commencement of this
10
section, a court martial or a Defence Force magistrate:
11
(a) convicts a person of a service offence (other than a
12
Schedule 1A offence); or
13
(b) convicts a person of a Schedule 1A offence and imposes a
14
punishment of imprisonment on the person.
15
(2) A service chief or an authorized officer may disclose the fact that a
16
person has been convicted of the offence, and any information
17
relating to the conviction, to an authority of the Commonwealth, or
18
of a State or a Territory, for purposes connected with investigating,
19
prosecuting or keeping records in relation to offences against laws
20
of the Commonwealth, the State or the Territory.
21
(3) For the purpose of complying with a requirement or an
22
authorisation to disclose, for a lawful purpose, the fact that a
23
person has been convicted of an offence against a law of the
24
Commonwealth that is a service offence, the disclosure must
25
expressly refer to the offence as a service offence.
26
Note:
Part VIIC of the Crimes Act 1914 exempts a person from having to
27
disclose a spent conviction.
28
Main amendments Schedule 1
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
9
190B Disclosing certain convictions by a summary authority, a court
1
martial or a Defence Force magistrate
2
(1) This section applies if, before or after the commencement of this
3
section:
4
(a) a summary authority convicts a person of a service offence;
5
or
6
(b) a court martial or a Defence Force magistrate convicts a
7
person of a Schedule 1A offence and does not impose a
8
punishment of imprisonment on the person.
9
(2) The conviction has effect for service purposes only.
10
(3) The convicted person is not required to disclose to any person, for
11
any purpose (other than a service purpose), the fact that the person
12
has been convicted of the offence.
13
Note:
A person who has been convicted of an offence to which this section
14
applies is not required to disclose the conviction for service purposes
15
if the conviction is spent within the meaning of Part VIIC of the
16
Crimes Act 1914.
17
(4) Subsections (2) and (3) have effect despite section 3A.
18
31 Paragraph 191(1)(c)
19
Repeal the paragraph.
20
32 Schedule 1
21
Repeal the Schedule.
22
33 Clause 2 of Schedule 2 (table, column 2)
23
Omit "of an amount not exceeding $500.", substitute "not exceeding 15
24
penalty units".
25
34 Subclause 1(4) of Schedule 3 (table item 2, column 2)
26
Omit "exceeding $100 but not exceeding $250", substitute "not
27
exceeding 7 penalty units".
28
35 Subclause 1(4) of Schedule 3 (table item 2, column 3)
29
Omit "$100", substitute "3 penalty units".
30
Schedule 1 Main amendments
10
Defence Legislation (Enhancement of Military Justice) Bill 2015
No. , 2015
36 Subclause 2(3) of Schedule 3 (table item 5, column 2)
1
Omit "exceeding $100 but not exceeding $250", substitute "not
2
exceeding 7 penalty units".
3
37 Subclause 2(3) of Schedule 3 (table item 5, column 3)
4
Omit "$100", substitute "3 penalty units".
5
Director of Defence Counsel Services Schedule 2
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
11
Schedule 2
--Director of Defence Counsel
1
Services
2
3
Defence Act 1903
4
1 Subsection 4(1)
5
Insert:
6
accused person has the same meaning as in the Defence Force
7
Discipline Act 1982.
8
court martial means a court martial convened under the Defence
9
Force Discipline Act 1982.
10
Defence Force magistrate has the same meaning as in the Defence
11
Force Discipline Act 1982.
12
Director of Defence Counsel Services means the person appointed
13
under subsection 110ZA(2) as the Director of Defence Counsel
14
Services or a person acting as the Director of Defence Counsel
15
Services.
16
legal officer has the same meaning as in the Defence Force
17
Discipline Act 1982.
18
legal practitioner has the same meaning as in the Defence Force
19
Discipline Act 1982.
20
2 Subsection 61CU(5)
21
Omit "lawyer", substitute "legal practitioner".
22
3 Subsection 89(2)
23
Repeal the subsection, substitute:
24
(2) In this section:
25
judge advocate has the same meaning as in the Defence Force
26
Discipline Act 1982.
27
summary authority has the same meaning as in the Defence Force
28
Discipline Act 1982.
29
Schedule 2 Director of Defence Counsel Services
12
Defence Legislation (Enhancement of Military Justice) Bill 2015
No. , 2015
4 Section 110T (definition of lawyer)
1
Repeal the definition.
2
5 Paragraph 110XH(2)(d)
3
Omit "lawyer", substitute "legal practitioner".
4
6 After Part VIIIC
5
Insert:
6
Part VIIID--Director of Defence Counsel Services
7
8
110ZA Director of Defence Counsel Services
9
(1) There is to be a Director of Defence Counsel Services.
10
(2) The Director of Defence Counsel Services is to be appointed by the
11
Chief of the Defence Force by written instrument.
12
(3) The Chief of the Defence Force must not appoint a person to be the
13
Director of Defence Counsel Services unless the person:
14
(a) is enrolled as a legal practitioner and has been so enrolled for
15
not less than 5 years; and
16
(b) is a member of the Permanent Forces or is a member of the
17
Reserves who is rendering continuous full-time service; and
18
(c) holds a rank not lower than the naval rank of captain or the
19
rank of colonel or group captain.
20
110ZB Functions and powers of the Director of Defence Counsel
21
Services
22
(1) The Director of Defence Counsel Services has the following
23
functions:
24
(a) to manage the provision of legal representation and advice by
25
legal officers to accused persons, for the purposes of a trial
26
by a court martial or a Defence Force magistrate, to the
27
extent that the exigencies of service permit;
28
(b) to arrange for the attendance of witnesses, to the extent that
29
the exigencies of service permit, on behalf of an accused
30
person referred to in paragraph (a);
31
Director of Defence Counsel Services Schedule 2
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
13
(c) to establish and maintain, in accordance with
1
subsection 101F(2) of the Defence Force Discipline Act
2
1982, lists of legal officers willing to assist persons in
3
custody;
4
(d) to manage the provision of legal representation and advice by
5
legal officers to persons entitled to such representation or
6
advice, for the purposes of a court of inquiry, a board of
7
inquiry or a Chief of the Defence Force commission of
8
inquiry conducted under regulations made under
9
paragraph 124(1)(gc);
10
(e) such other functions as the Chief of the Defence Force directs
11
in writing;
12
(f) such other functions as are conferred on the Director of
13
Defence Counsel Services by or under this Act or any other
14
law of the Commonwealth;
15
(g) to do anything incidental or conducive to the performance of
16
any of the preceding functions.
17
(2) The Director of Defence Counsel Services has power to do all
18
things necessary or convenient to be done for or in connection with
19
the performance of his or her functions.
20
(3) A direction given under paragraph (1)(e) is not a legislative
21
instrument.
22
110ZC Delegation
23
The Director of Defence Counsel Services may delegate all or any
24
of his or her powers and functions to:
25
(a) a defence member holding a rank not lower than lieutenant
26
commander, major or squadron leader; or
27
(b) a person whose classification level appears in Group 7 or a
28
higher Group of Schedule 1 to the Classification Rules under
29
the Public Service Act 1999; or
30
(c) a person who is acting in a position usually occupied by a
31
person with a classification level of the kind mentioned in
32
paragraph (b).
33
110ZD Protection from action
34
An action, suit or proceeding does not lie against:
35
Schedule 2 Director of Defence Counsel Services
14
Defence Legislation (Enhancement of Military Justice) Bill 2015
No. , 2015
(a) the Director of Defence Counsel Services; or
1
(b) a person assisting the Director;
2
in relation to an act done, or omitted to be done, in good faith in
3
the performance or purported performance of a function, or the
4
exercise or purported exercise of a power, conferred on the
5
Director by or under this Act or any other law of the
6
Commonwealth.
7
7 Subsection 122B(1)
8
Omit "(1)".
9
8 Subsection 122B(2)
10
Repeal the subsection.
11
Defence Force Discipline Act 1982
12
9 Subsection 3(1)
13
Insert:
14
Director of Defence Counsel Services has the same meaning as in
15
the Defence Act 1903.
16
10 Subsection 101F(2)
17
Omit "Chief of the Defence Force shall", substitute "Director of
18
Defence Counsel Services must".
19
11 Subsection 101F(2)
20
Omit "Chief of the Defence Force thinks", substitute "Director thinks".
21
12 Subsection 101F(2A)
22
Repeal the subsection.
23
13 Saving
--list of legal officers
24
A list that was in force under subsection 101F(2) of the Defence Force
25
Discipline Act 1982 immediately before the commencement of this
26
Schedule continues in force on and after that commencement as if it had
27
been established under that subsection as amended by this Schedule.
28
Amendments relating to certain office holders Schedule 3
No. , 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
15
Schedule 3
--Amendments relating to certain
1
office holders
2
3
Military Justice (Interim Measures) Act (No. 1) 2009
4
1 Subparagraph 2(3)(a)(i) of Schedule 3
5
Omit "6 years", substitute "8 years".
6
2 Subparagraph 2(3)(a)(ii) of Schedule 3
7
Omit "6 year", substitute "8 year".
8
3 Subitem 2(7A) of Schedule 3
9
Omit "Subsection 188A(2) of the amended Defence Force Discipline
10
Act does", substitute "Subsections 188A(2) and (3) of the amended
11
Defence Force Discipline Act do".
12
4 Subitem 2(8) of Schedule 3
13
Omit "subsection 188A(3) and".
14
5 Paragraph 3(1)(a) of Schedule 3
15
Omit "6 year", substitute "8 year".
16
6 Subparagraph 4(3)(a)(i) of Schedule 3
17
Omit "6 years", substitute "8 years".
18
7 Subparagraph 4(3)(a)(ii) of Schedule 3
19
Omit "6 year", substitute "8 year".
20
8 Paragraph 5(1)(a) of Schedule 3
21
Omit "6 year", substitute "8 year".
22
9 Subitem 8(1) of Schedule 3
23
Omit "6 year", substitute "8 year".
24