MILITARY COURT OF AUSTRALIA (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2012

i Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill

2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendment of the Defence Force Discipline Act

1982

Part 1--Main amendments

Defence Force Discipline Act 1982

Part 2--Amendment of offences

103

Defence Force Discipline Act 1982

103

Part 3--Other amendment

106

Defence Force Discipline Act 1982

106

Schedule 2--Amendments of other Defence legislation

107

Defence Act 1903

107

Defence Force Retirement and Death Benefits Act 1973

111

Schedule 3--Amendments of other Acts

112

Part 1--Main amendments

112

Acts Interpretation Act 1901

112

Administrative Decisions (Judicial Review) Act 1977

112

Age Discrimination Act 2004

113

Australian Crime Commission Act 2002

113

Australian Security Intelligence Organisation Act 1979

113

Crimes Act 1914

113

Federal Court of Australia Act 1976

114

Federal Magistrates Act 1999

115

Federal Proceedings (Costs) Act 1981

115

Geneva Conventions Act 1957

116

Judges (Long Leave Payments) Act 1979

116

Judges' Pensions Act 1968

116

Judiciary Act 1903

116

Legislative Instruments Act 2003

118

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 ii

Military Court of Australia Act 2012

119

National Security Information (Criminal and Civil Proceedings) Act

2004

119

Trans-Tasman Proceedings Act 2010

120

Trans-Tasman Proceedings (Transitional and Consequential

Provisions) Act 2010

120

Part 2--Contingent amendments

121

Division 1--Amendments relating to judicial misbehaviour and

incapacity

121

Judicial Misbehaviour and Incapacity (Parliamentary Commissions)

Act 2012

121

Division 2--Amendments relating to judicial complaints

121

Freedom of Information Act 1982

121

Military Court of Australia Act 2012

122

Division 3--Amendments relating to suppression and non-publication

orders

125

Australian Crime Commission Act 2002

125

Military Court of Australia Act 2012

126

Schedule 4--Repeal

133

Defence Force Discipline Appeals Act 1955

133

Schedule 5--Application, saving and transitional provisions

134

Part 1--Definitions

134

Part 2--Proceedings in respect of service offences

136

Part 3--Office-holders

144

Part 4--Abolition of Defence Force Discipline Appeal

Tribunal

149

Part 5--Other provisions

153

Part 6--Regulations

157

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 1

A Bill for an Act to amend the Defence Force

Discipline Act 1982 and other laws, and to deal with

transitional matters, in connection with the Military

Court of Australia Act 2012, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Military Court of Australia

(Transitional Provisions and Consequential Amendments) Act

2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

2 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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 this Act receives the Royal Assent.

2. Schedule 1,

Part 1

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 10 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

3. Schedule 1,

Part 2

The 28th day after this Act receives the

Royal Assent.

4. Schedule 1,

Part 3

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 2;

and

(b) immediately after the commencement of

item 1 of Schedule 2 to the

Trans-Tasman Proceedings (Transitional

and Consequential Provisions) Act 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

5. Schedule 2,

items 1 to 5

At the same time as the provision(s) covered

by table item 2.

6. Schedule 2,

items 6 and 7

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

7. Schedule 2,

items 8 to 15

At the same time as the provision(s) covered

by table item 2.

8. Schedule 2,

item 16

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

9. Schedule 2,

At the same time as the provision(s) covered

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

item 17

by table item 2.

10. Schedule 3,

items 1 to 3

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

11. Schedule 3,

item 4

At the same time as the provision(s) covered

by table item 2.

12. Schedule 3,

item 5

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

13. Schedule 3,

item 6

At the same time as the provision(s) covered

by table item 2.

14. Schedule 3,

items 7 to 10

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

15. Schedule 3,

item 11

At the same time as the provision(s) covered

by table item 2.

16. Schedule 3,

items 12 to 22

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

17. Schedule 3,

items 23 to 28

At the same time as the provision(s) covered

by table item 2.

18. Schedule 3,

items 29 to 32

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

19. Schedule 3,

items 33 to 36

At the same time as the provision(s) covered

by table item 2.

20. Schedule 3,

item 37

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

21. Schedule 3,

items 38 to 40

The later of:

(a) immediately after the commencement of

section 3 of the Military Court of

Australia Act 2012; and

(b) immediately after the commencement of

item 1 of Schedule 2 to the

Trans-Tasman Proceedings (Transitional

and Consequential Provisions) Act 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

22. Schedule 3,

At the same time as the provision(s) covered

4 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

items 41 to 45

by table item 2.

23. Schedule 3,

item 46

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 2;

and

(b) immediately after the commencement of

section 109 of the Trans-Tasman

Proceedings Act 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

24. Schedule 3,

items 47 and 48

Immediately before the commencement of

item 1 of Schedule 2 to the Trans-Tasman

Proceedings (Transitional and

Consequential Provisions) Act 2010.

However, the provision(s) do not commence

at all if item 1 of Schedule 2 to the

Trans-Tasman Proceedings (Transitional

and Consequential Provisions) Act 2010

commences before the commencement of

the provision(s) covered by table item 2.

25. Schedule 3,

Part 2, Division 1

The later of:

(a) immediately after the commencement of

section 3 of the Military Court of

Australia Act 2012; and

(b) immediately after the commencement of

section 3 of the Judicial Misbehaviour

and Incapacity (Parliamentary

Commissions) Act 2012.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

26. Schedule 3,

Part 2, Division 2

The later of:

(a) immediately after the commencement of

section 3 of the Military Court of

Australia Act 2012; and

(b) immediately after the commencement of

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 5

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

Schedule 1 to the Courts Legislation

Amendment (Judicial Complaints) Act

2012.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

27. Schedule 3,

Part 2, Division 3

The later of:

(a) immediately after the commencement of

section 3 of the Military Court of

Australia Act 2012; and

(b) immediately after the commencement of

Schedule 2 to the Access to Justice

(Federal Jurisdiction) Amendment Act

2012.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

28. Schedule 4

At the same time as the provision(s) covered

by table item 2.

29. Schedule 5,

items 1 to 33

At the same time as the provision(s) covered

by table item 2.

30. Schedule 5,

item 34

The 28th day after this Act receives the

Royal Assent.

31. Schedule 5,

item 35

At the same time as section 3 of the Military

Court of Australia Act 2012 commences.

32. Schedule 5,

item 36

The day this Act receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Amendment of the Defence Force Discipline Act 1982 Schedule 1

Main amendments Part 1

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 7

Schedule 1--Amendment of the Defence

Force Discipline Act 1982

Part 1--Main amendments

Defence Force Discipline Act 1982

1 Subsection 3(1) (subparagraph (a)(i) of the definition of

appropriate authority)

Repeal the subparagraph, substitute:

(i) the convening superior authority for the court martial; or

2 Subsection 3(1) (subparagraph (b)(i) of the definition of

appropriate authority)

Repeal the subparagraph, substitute:

(i) the superior authority who referred the charge to which

the proceedings relate to the Defence Force magistrate;

(ia) if that superior authority is replaced by another superior

authority--the other superior authority; or

3 Subsection 3(1) (at the end of the definition of authorized

officer)

Add "or has effect".

4 Subsection 3(1) (at the end of the definition of authorized

officer)

Add:

Note:

The expression "authorized officer" has effect in sections 90, 101X

and 101Y because an authorized officer is an issuing officer for the

purposes of those sections.

5 Subsection 3(1) (definition of Chief Judge Advocate)

Repeal the definition.

6 Subsection 3(1) (definition of civil detention facility)

Omit "in a civil court", substitute "in respect of a civil court offence".

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

8 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

7 Subsection 3(1)

Insert:

convening superior authority, for a court martial, means:

(a) the superior authority who convened the court martial; or

(b) if that superior authority is replaced by another superior

authority--the other superior authority.

8 Subsection 3(1) (definition of convicted person)

Omit "Defence Force Discipline Appeal Tribunal", substitute "Military

Court".

9 Subsection 3(1) (definition of Court Martial and Defence

Force Magistrate Rules)

Omit "section 149A", substitute "clause 46 of Schedule 3B".

10 Subsection 3(1) (definition of Defence Force Discipline

Appeal Tribunal)

Repeal the definition.

11 Subsection 3(1) (definition of Defence Force magistrate)

Omit "section 127", substitute "clause 24 of Schedule 3B".

12 Subsection 3(1)

Insert:

Director of Defence Counsel Services has the same meaning as in

the Defence Act 1903.

13 Subsection 3(1) (definition of elective punishment)

Repeal the definition.

14 Subsection 3(1)

Insert:

issuing officer means:

(a) an authorized officer; or

(b) a Judge, or a Federal Magistrate, of the Military Court.

Amendment of the Defence Force Discipline Act 1982 Schedule 1

Main amendments Part 1

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 9

15 Subsection 3(1)

Insert:

mental impairment has the same meaning as in section 7.3 of the

Criminal Code.

16 Subsection 3(1)

Insert:

Military Court means the Military Court of Australia created by

the Military Court Act.

17 Subsection 3(1)

Insert:

Military Court Act means the Military Court of Australia Act

2012.

18 Subsection 3(1)

Insert:

Military Court Rules has the same meaning as in the Military

Court Act.

19 Subsection 3(1) (definition of old system offence)

Repeal the definition.

20 Subsection 3(1) (definition of prescribed acquittal)

Omit "on the ground of unsoundness of mind", substitute "under

Schedule 3B, because of mental impairment".

21 Subsection 3(1) (at the end of the definition of prescribed

acquittal)

Add:

Note:

See subclause 35(1) of Schedule 3B.

22 Subsection 3(1)

Insert:

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

10 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

prescribed acquitted person means a person who has been

acquitted of a service offence, by a court martial or a Defence

Force magistrate under Schedule 3B, because of mental

impairment.

23 Subsection 3(1) (definition of previous service law)

Repeal the definition.

24 Subsection 3(1) (definition of Registrar)

Repeal the definition.

25 Subsection 3(1) (definition of Schedule 1A offence)

Repeal the definition.

26 Subsection 3(1) (subparagraph (b)(ii) of the definition of

service offence)

Omit "civilian; or", substitute "civilian.".

27 Subsection 3(1) (paragraph (c) of the definition of service

offence)

Repeal the paragraph.

28 Subsection 3(1) (at the end of the definition of service

offence)

Add:

Note:

A service offence is an offence against a law of the Commonwealth

but is not an indictable offence: see section 3A.

29 Subsection 3(1)

Insert:

unfit to be tried includes unfit to plead.

30 Subsection 3(15)

Repeal the subsection.

31 After section 3

Insert:

Amendment of the Defence Force Discipline Act 1982 Schedule 1

Main amendments Part 1

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 11

3A Character of service offences

(1) For the purposes of any law of the Commonwealth other than this

Act or the regulations, a service offence is an offence against a law

of the Commonwealth.

(2) A service offence is not an indictable offence.

32 After paragraph 5A(a)

Insert:

(aa) referring a charge or case to a Defence Force magistrate if

directed to do so by the Director of Military Prosecutions

under subparagraph 103C(2)(c)(i) or 103E(2)(c)(i) or

paragraph 31(4)(c) of Schedule 3B; and

(ab) convening a court martial if directed to do so by the Director

of Military Prosecutions under subparagraph 103C(2)(c)(ii)

or 103E(2)(c)(ii) or subclause 19(6) or paragraph 31(4)(d) of

Schedule 3B; and

33 After section 6

Insert:

6A Chaplains--notional rank

For the purposes of this Act, the regulations and the Military Court

Act, a member of the Defence Force who is a chaplain referred to

in column 1 of an item in the following table is taken to have the

rank referred to in column 2 of that item.

Item Column

Chaplain

Column 2

Notional rank

Chaplain in the Navy with less than 4 years

service in the Defence Force as a Chaplain

Lieutenant in the Navy

Chaplain 4th Class in the Army

Captain in the Army

Chaplain in the Air Force with less than 4

years service in the Defence Force as a

Chaplain

Flight Lieutenant

Chaplain in the Navy with at least 4 years

service, but less than 14 years service, in the

Defence Force as a Chaplain

Lieutenant Commander

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

12 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

Item Column

Chaplain

Column 2

Notional rank

Chaplain 3rd Class in the Army

Major

Chaplain in the Air Force with at least 4

years service, but less than 14 years service,

in the Defence Force as a Chaplain

Squadron Leader

Chaplain in the Navy with at least 14 years

service, but less than 20 years service, in the

Defence Force as a Chaplain

Commander

Chaplain 2nd Class in the Army

Lieutenant-Colonel

Chaplain in the Air Force with at least 14

years service, but less than 20 years service,

in the Defence Force as a Chaplain

Wing Commander

Chaplain in the Navy with at least 20 years

service in the Defence Force as a Chaplain

Captain in the Navy

Chaplain 1st Class in the Army

Colonel

Chaplain in the Air Force with at least 20

years service in the Defence Force as a

Chaplain

Group Captain

Principal Naval Chaplain

Commodore

14 Principal

Chaplain

in the Army

Brigadier

Principal Air Chaplain

Air Commodore

34 Subsection 7(1)

Omit "applies", substitute "and the Military Court Act (including the

regulations and the Military Court Rules) apply".

35 Section 10

Omit ", other than old system offences".

36 Subsection 11(4)

Repeal the subsection.

37 Subsection 63(1)

Omit "proceedings under this Act shall not be instituted", insert

"proceedings must not be instituted in the Military Court or a service

tribunal".

Amendment of the Defence Force Discipline Act 1982 Schedule 1

Main amendments Part 1

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 13

38 Section 65

Repeal the section.

39 Subsection 66(1)

After "particular conviction", insert "by a service tribunal".

40 Subsection 67(1)

After "conviction", insert "by a court martial or a Defence Force

magistrate".

41 Subsection 67(2)

After "conviction", insert "by a summary authority".

42 Paragraph 70(1)(a)

After "civil courts", insert "in relation to civil court offences".

43 Paragraph 74(2)(b)

After "prescribed punishment" (first occurring), insert "imposed by a

service tribunal or the Military Court".

44 Paragraph 74(2)(c)

After "prescribed punishment" (first occurring), insert "imposed by a

service tribunal".

45 Paragraph 74(4)(b)

After "prescribed punishment" (first occurring), insert "imposed by a

service tribunal or the Military Court".

46 Paragraph 74(4)(c)

After "prescribed punishment" (first occurring), insert "imposed by a

service tribunal".

47 Paragraph 74(4A)(a)

After "prescribed punishment" (first occurring), insert "imposed by a

service tribunal".

48 Paragraph 74(4B)(a)

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

14 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

After "prescribed punishment" (first occurring), insert "imposed by a

service tribunal".

49 Paragraph 74(6)(a)

After "detention", insert "imposed by a service tribunal or the Military

Court".

50 After subsection 76(1)

Insert:

(1A)

If:

(a) a person has, in accordance with subsection 75(2), given an

undertaking to a summary authority (the first summary

authority) that he or she will be of good behaviour for a

period of 12 months; and

(b) the Military Court convicts the person of a service offence

that was committed during that period;

a summary authority of the same kind as the first summary

authority may, subject to subsection (3) and if it is satisfied that,

because of the person's commission of that service offence, the

person has failed to be of good behaviour, take action under this

Part in relation to the person for the service offence in relation to

which the undertaking was given.

51 Subsection 76(2)

Omit "subsection (1), shall", insert "subsection (1) or (1A), must".

52 Paragraph 77(3)(c)

After "service tribunal", insert "or the Military Court".

53 Subsection 80(1)

Omit "is suspended", substitute "has been suspended under this Act".

54 Paragraph 81(1)(a)

After "imposed", insert "by a service tribunal".

55 Subsection 81(2)

After "in part", insert "under this Act".

Amendment of the Defence Force Discipline Act 1982 Schedule 1

Main amendments Part 1

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 15

56 Subsection 81(3)

After "in part", insert "under this Act".

57 Section 82

Repeal the section, substitute:

82 Remission of punishment of detention on imprisonment

(1) If a service tribunal imposes a punishment of imprisonment on a

convicted person who is already subject to a punishment of

detention, that punishment of detention, or such part of that

punishment of detention as has not been served, is remitted.

(2) Subsection (1) applies:

(a) whether the punishment of detention was imposed by a

service tribunal or by the Military Court; and

(b) whether or not that punishment, or a part of that punishment,

has been suspended.

58 Section 87 (heading)

Repeal the heading, substitute:

87 Power to charge person with service offence and issue summons,

etc.

59 Subsections 87(1) and (1A)

Repeal the subsections, substitute:

(1) If the Director of Military Prosecutions or an authorised member of

the Defence Force believes, on reasonable grounds, that a person

has committed a service offence, the Director of Military

Prosecutions or the authorised member (as the case may be) may:

(a) if the person is a defence member:

(i) charge the defence member with the service offence;

and

(ii) cause a copy of the charge to be given to the defence

member; and

(iii) order the defence member to appear before a

commanding officer or a subordinate summary authority

at a specified time and place to be dealt with in

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

16 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

accordance with section 110 or 111, unless the defence

member makes an election under Division 1 of Part VII

in relation to the charge before that time; or

(b) whether or not the person is a defence member--cause to be

prepared a summons directed to the person that:

(i) specifies the service offence that the person is alleged to

have committed; and

(ii) requires the person to appear before a commanding

officer at a time and place specified in the summons to

be dealt with in accordance with section 110, unless the

person makes an election under Division 1 of Part VII in

relation to the charge before that time.

Note:

Division 1 of Part VII provides for an accused person to elect to have

a charge against the person tried by the Military Court.

(1A) If the Director of Military Prosecutions believes, on reasonable

grounds, that a person has committed a service offence, the

Director of Military Prosecutions may, instead of acting under

paragraph (1)(a) or (b):

(a) charge the person with the service offence; and

(b) cause a copy of the charge to be given to the person; and

(c)

either:

(i) refer the charge to a superior summary authority who

has jurisdiction under section 106, or a commanding

officer who has jurisdiction under section 107, to try the

charge; or

(ii) subject to subsection (1B), institute a proceeding in

respect of the charge in the Military Court.

(1B) The Director of Military Prosecutions must not institute a

proceeding in respect of a charge of a custodial offence in the

Military Court.

Note:

The Military Court does not have jurisdiction to try a charge of a

custodial offence: see subsection 63(2) of the Military Court Act.

60 Subsection 87(6)

Repeal the subsection, substitute:

(6) A proceeding must not be instituted against a person in respect of a

service offence except as provided by this Act or the Military

Court Act.

Amendment of the Defence Force Discipline Act 1982 Schedule 1

Main amendments Part 1

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 17

(7) In this section:

authorised member of the Defence Force means a member of the

Defence Force, or a member of the Defence Force included in a

class of members of the Defence Force, authorised, in writing, by a

commanding officer for the purposes of this section.

61 After section 87

Insert:

87A Notice of right to elect to have charge tried by the Military

Court

(1) The Director of Military Prosecutions or an authorised member of

the Defence Force must notify a person who has been charged with

a service offence that the person may elect to have the charge tried

by the Military Court.

Note:

Division 1 of Part VII deals with how to make an election to have a

charge tried by the Military Court.

(2)

The

notice:

(a) must be in writing; and

(b) must also inform the accused person of the following:

(i) the period within which an election may be made;

(ii) the right to obtain legal advice in relation to an election;

(iii) how an election may be made;

(iv) the right to withdraw an election.

(3) In this section:

authorised member of the Defence Force means a person who is

an authorised member of the Defence Force for the purposes of

section 87.

service offence does not include:

(a) a prescribed offence (within the meaning of section 104); or

(b) a custodial offence.

62 Subsection 88(1)

Omit "or the Registrar".

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

18 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

63 Subsection 88(1A)

Repeal the subsection.

64 Section 90

Omit "authorized officer" (wherever occurring), substitute "issuing

officer".

65 Subsections 95(3) to 95(9)

Repeal the subsections, substitute:

(3) If a person (the accused person) is charged with a service offence

under subsection (2), the commanding officer must, as soon as

practicable:

(a) cause a copy of the charge to be given to the person; and

(b)

either:

(i) cause proceedings to be commenced to deal with the

charge; or

(ii) refer the charge to the Director of Military Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103.

(4) If the commanding officer does not comply with

subparagraph (3)(b)(i) or (ii) within 48 hours after the accused

person has been delivered into the custody of the commanding

officer, the commanding officer must, at the end of that period,

report, in writing, to a superior authority and the Director of

Military Prosecutions his or her reasons for failing to so comply.

(5)

If:

(a) the accused person makes an election under Division 1 of

Part VII to have the charge against the person tried by the

Military Court; and

(b) the election is made before the commanding officer has

complied with subparagraph (3)(b)(i) or (ii);

the commanding officer:

the charge; and

(d) must refer the charge to the Director of Military

Prosecutions.

Amendment of the Defence Force Discipline Act 1982 Schedule 1

Main amendments Part 1

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 19

Note:

The Director of Military Prosecutions may deal with the charge under

section 103A.

(6) If the accused person remains in the custody of the commanding

officer for 8 days or more without proceedings being commenced

to deal with the charge against the person, the commanding officer

must:

(a) at the end of the first 8-day period of such custody; and

(b) at the end of each subsequent 8-day period of such custody;

report, in writing, to a superior authority and the Director of

Military Prosecutions the reasons why proceedings have not been

commenced to deal with the charge.

Note:

The commanding officer must make a report under this section in

relation to a person who remains in the custody of the commanding

officer for 8 days or more even if the commanding officer is not

required to cause proceedings to be commenced to deal with the

charge against the person.

(7) If, due to the exigencies of service, it is not reasonably practicable

for the commanding officer to make a report in accordance with

subsection (6) on the date the report is due, the commanding

officer must:

(a) make the report as soon as it becomes reasonably practicable

to do so; and

(b) state in the report why it was not reasonably practicable to

report on the due date.

(8) If the accused person remains in the custody of the commanding

officer for 30 days or more without proceedings being commenced

to deal with the charge against the person, the superior authority to

whom a report under subsection (6) or (7) has been made must:

(a) at the end of the first 30-day period of such custody; and

(b) at the end of each subsequent 30-day period of such custody;

notify the Director of Military Prosecutions and the Chief of the

Defence Force or a service chief or an authorized officer of the

reasons why proceedings have not been commenced to deal with

the charge.

(9) On receiving a notification under subsection (8), the Chief of the

Defence Force, the service chief or the authorized officer (as the

case may be) must order the release of the accused person from

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custody unless this is not reasonably practicable due to the

exigencies of service.

66 Subsection 96(5)

Repeal the subsection.

67 Subsection 101F(2)

Omit "Chief of the Defence Force shall", substitute "Director of

Defence Counsel Services must".

68 Subsection 101F(2)

Omit "Chief of the Defence Force thinks", substitute "Director thinks".

69 Subsection 101F(2A)

Repeal the subsection.

70 Section 101X

Omit "authorized officer" (wherever occurring), substitute "issuing

officer".

71 Section 101Y

Omit "authorized officer" (wherever occurring), substitute "issuing

officer".

72 Part VII (heading)

Repeal the heading, substitute:

Part VII--Pre-trial matters

73 Division 1 of Part VII

Repeal the Division, substitute:

Division 1--Election by accused person for trial by

Military Court

102 Application

This Division does not apply in relation to a charge of:

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(a) a prescribed offence (within the meaning of section 104); or

(b) a custodial offence.

Note 1:

A summary authority does not have jurisdiction to try a charge of a

prescribed offence: see sections 106, 107 and 108.

Note 2:

The Military Court does not have jurisdiction to try a charge of a

custodial offence: see subsection 63(2) of the Military Court Act.

102A Accused person may elect to have charge tried by the Military

Court

Right to make an election

(1) An accused person may, in accordance with subsection (3), elect to

have a charge against the person tried by the Military Court.

(2) Subsection (1) does not apply if:

(a) the Director of Military Prosecutions has instituted a

proceeding in respect of the charge in the Military Court; and

(b) the proceeding has not been discontinued.

Procedure for making an election

(3) An election under subsection (1) must be made by notifying the

Director of Military Prosecutions in writing.

Note:

The Director of Military Prosecutions may direct that the charge be

not proceeded with or institute a proceeding in respect of the charge in

the Military Court: see section 103A.

Election may relate to 2 or more charges

(4)

If:

(a) an accused person is charged with 2 or more service

offences; and

(b) the charges arise from the same facts or circumstances; and

relation to one or more of the charges;

the election is taken to relate to all the charges.

Period within which election may be made

(5) An accused person may make an election under subsection (1) in

relation to a charge at any time:

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(a) after the person is charged with the service offence and

before the person is required to enter a plea to the charge; or

(b) if the person has been tried for the service offence by a

summary authority and a reviewing authority has, under

section 160, ordered a new trial of the person for the service

offence--after the person is given written notice of the

review and before the person is required to enter a plea to the

charge at the new trial.

(6) The accused person must not be required to enter a plea to the

charge:

(a) within the first 24 hours after the person is charged; or

(b) if paragraph (5)(b) applies--within the first 24 hours after the

person is given written notice of the review referred to in that

paragraph.

Legal advice

(7) An accused person must be given an opportunity to obtain legal

advice in relation to making an election under subsection (1) if a

legal officer is reasonably available to give such advice.

102B Withdrawal of election to have charge tried by the Military

Court

If:

(a) an accused person has made an election under subsection

102A(1) to have a charge against the person tried by the

Military Court; and

(b) the Director of Military Prosecutions has not instituted a

proceeding in respect of the charge in the Military Court;

the accused person may withdraw the election by written notice to

the Director of Military Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103A.

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Division 2--Powers of the Director of Military

Prosecutions

103 Charges referred to the Director of Military Prosecutions--

general

(1) This section applies in relation to a charge that is referred to the

Director of Military Prosecutions under any of the following

provisions:

(a)

subparagraph

95(3)(b)(ii);

(b)

subsection

105A(2);

(c)

paragraph

109(b);

(d)

paragraph

110(1)(d);

(e)

subsection

129D(2);

(f)

subsection

130(5);

(g)

section

131A;

(h)

subsection

141(8);

(i) section 145 or 146;

(j)

subsection

158A(1);

(k)

subsection

164(3);

(l) clause 34 of Schedule 3B.

(2) The Director of Military Prosecutions may:

(a) direct that the charge be not proceeded with; or

(b) subject to subsection (3), refer the charge to:

(i) a superior summary authority who has jurisdiction

under section 106 to try the charge; or

(ii) a commanding officer who has jurisdiction under

section 107 to try the charge; or

the charge in the Military Court.

(3) The Director of Military Prosecutions must not refer the charge to

a superior summary authority or a commanding officer if:

(a) the accused person has made an election under Division 1 to

have the charge tried by the Military Court and has not

withdrawn the election; or

(b) the charge was referred to the Director of Military

Prosecutions under:

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(i) section 145 or 146; or

(ii) subsection 158A(1); or

(iii) subsection 164(3); or

(iv) clause 34 of Schedule 3B.

(4) The Director of Military Prosecutions must not institute a

proceeding in respect of a charge of a custodial offence in the

Military Court.

Note:

The Military Court does not have jurisdiction to try a charge of a

custodial offence: see subsection 63(2) of the Military Court Act.

(5)

If:

(a) a charge is referred to the Director of Military Prosecutions

under subsection 158A(1) or 164(3); and

(b) the Director of Military Prosecutions does not, within 2

months after the conviction was quashed under subsection

158A(1), or the prescribed acquittal was quashed under

subsection 164(3) (as the case may be):

(i) direct that the charge be not proceeded with; or

(ii) institute a proceeding for a new trial in respect of the

charge in the Military Court;

the Director of Military Prosecutions is taken to have directed, on

the day after the end of the 2-month period, that the charge against

the person be not proceeded with.

Note:

If the charge against the person is not proceeded with, the person is

taken to have been acquitted of the service offence to which the

charge relates: see subsections 159(2) and 165(2).

103A Charges in relation to which accused person has elected to be

tried by the Military Court

(1) This section applies if an accused person has elected, under

Division 1, to have a charge against the person tried by the Military

Court.

(2) The Director of Military Prosecutions may:

(a) direct that the charge be not proceeded with; or

(b) institute a proceeding in respect of the charge in the Military

Court.

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(3) If the election is withdrawn under section 102B, the Director of

Military Prosecutions may:

(a) direct that the charge be not proceeded with; or

(b) refer the charge to:

(i) a superior summary authority who has jurisdiction

under section 106 to try the charge; or

(ii) a commanding officer who has jurisdiction under

section 107 to try the charge; or

Court.

103B Charges in relation to which a new trial is ordered by a

reviewing authority

(1) This section applies if, in a review of proceedings before a court

martial or a Defence Force magistrate, a reviewing authority

orders, under section 160 or 166, a new trial of a person.

(2) The Director of Military Prosecutions may:

(a) direct that the charge to which the proceeding relates be not

proceeded with; or

(b) if the Director of Military Prosecutions is satisfied there is

sufficient cogent evidence to justify a new trial of the

person--institute a proceeding in respect of the charge in the

Military Court.

103C Charges that the Military Court cannot deal with outside

Australia

(1) This section applies if a charge is taken to have been withdrawn

from the Military Court under paragraph 51(5)(d) of the Military

Court Act.

Note:

A charge is taken to have been withdrawn from the Military Court

under paragraph 51(5)(d) of the Military Court Act if the Military

Court has determined that it is necessary, but not possible, for it to sit

at a place outside Australia to hear and determine a proceeding, or a

part of a proceeding, in respect of the charge.

(2) The Director of Military Prosecutions may:

(a) direct that the charge be not proceeded with; or

(b) subject to subsection (3), refer the charge to:

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(i) a superior summary authority who has jurisdiction

under section 106 to try the charge; or

(ii) a commanding officer who has jurisdiction under

section 107 to try the charge; or

(i) to refer the charge to a Defence Force magistrate for

trial under Schedule 3B; or

(ii) to convene a court martial to try the charge under

Schedule 3B; or

(d) if circumstances have changed since the charge was taken to

have been withdrawn from the Military Court--institute a

new proceeding in respect of the charge in the Military Court.

Note:

If the Director of Military Prosecutions gives a direction under

subparagraph (2)(c)(i), the charge must be referred to the Defence

Force magistrate nominated by the Judge Advocate General: see

clause 22 of Schedule 3B.

(3) The Director of Military Prosecutions must not refer the charge to

a superior summary authority or a commanding officer if the

accused person had elected, under Division 1, to have the charge

tried by the Military Court.

103D Proceeding in the Military Court discontinued by the Director

of Military Prosecutions

(1) This section applies if the Director of Military Prosecutions

discontinues a proceeding in respect of a charge against an accused

person in the Military Court.

(2) The Director of Military Prosecutions may:

(a) direct that the charge be not proceeded with; or

(b) subject to subsection (3), refer the charge to:

(i) a superior summary authority who has jurisdiction

under section 106 to try the charge; or

(ii) a commanding officer who has jurisdiction under

section 107 to try the charge; or

Military Court.

Note:

It may be appropriate for the Director of Military Prosecutions to

institute a new proceeding in respect of the charge in the Military

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Court if circumstances have changed since the first proceeding was

discontinued.

(3) The Director of Military Prosecutions must not refer the charge to

a superior summary authority or a commanding officer if the

accused person has elected, under Division 1, to have the charge

tried by the Military Court.

103E Charges referred after court martial dissolved or proceeding

before Defence Force magistrate discontinued

General

(1) Subsection (2) applies if a superior authority:

(a) has dissolved a court martial and referred the charge being

tried by the court martial to the Director of Military

Prosecutions under subclause 19(5) of Schedule 3B; or

(b) has terminated a reference of a charge to a Defence Force

magistrate and referred the charge to the Director of Military

Prosecutions under subclause 31(3) of Schedule 3B.

(2) The Director of Military Prosecutions may:

(a) direct that the charge be not proceeded with; or

(b) subject to subsection (3), refer the charge to:

(i) a superior summary authority who has jurisdiction

under section 106 to try the charge; or

(ii) a commanding officer who has jurisdiction under

section 107 to try the charge; or

(i) to refer the charge to a Defence Force magistrate for

trial under Schedule 3B; or

(ii) to convene a court martial to try the charge under

Schedule 3B; or

(d) institute a proceeding in respect of the charge in the Military

Court.

Note 1:

If the Director of Military Prosecutions gives a direction under

subparagraph (2)(c)(i), the charge must be referred to the Defence

Force magistrate nominated by the Judge Advocate General: see

clause 22 of Schedule 3B.

Note 2:

It may be appropriate for a proceeding in respect of the charge to be

instituted in the Military Court if circumstances have changed since

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the charge was taken to have been withdrawn from the Military Court

under paragraph 51(5)(d) of the Military Court Act.

(3) The Director of Military Prosecutions must not refer the charge to

a superior summary authority or a commanding officer if the

accused person had elected, under Division 1, to have the charge

tried by the Military Court.

Application by accused person to have charge tried by Military

Court

(4) Subsection (5) applies if a superior authority:

(a) has dissolved a court martial and referred the charge being

tried by the court martial to the Director of Military

Prosecutions under subclause 20(3) of Schedule 3B; or

(b) has terminated a reference of a charge to a Defence Force

magistrate and referred the charge to the Director of Military

Prosecutions under subclause 32(3) of Schedule 3B.

Note:

A charge is referred to the Director of Military Prosecutions under

subclause 20(3) or 32(3) of Schedule 3B if the judge advocate of the

court martial or the Defence Force magistrate (as the case may be)

grants an application by the accused person to have the charge tried by

the Military Court.

(5) The Director of Military Prosecutions may:

(a) direct that the charge be not proceeded with; or

(b) institute a proceeding in respect of the charge in the Military

Court.

103F Conviction or prescribed acquittal by court martial or Defence

Force magistrate set aside on appeal to Military Court

(1) This section applies if the Military Court, under Division 3 of

Part 4 of Schedule 3B, sets aside a conviction or a prescribed

acquittal of a person of a service offence by a court martial or a

Defence Force magistrate.

(2) The Director of Military Prosecutions may:

(a) direct that the charge of the service offence be not proceeded

with; or

(b) institute a proceeding for a new trial in respect of the charge

in the Military Court.

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(3) If the Director of Military Prosecutions does not, within 2 months

after the Military Court order was made:

(a) direct that the charge be not proceeded with; or

(b) institute a proceeding for a new trial in respect of the charge

in the Military Court;

the Director of Military Prosecutions is taken to have directed, on

the day after the end of the 2-month period, that the charge against

the person be not proceeded with.

Note:

If the charge against the person is not proceeded with, the person is

taken to have been acquitted of the service offence to which the

charge relates: see clause 66 of Schedule 3B.

74 Division 2 of Part VII (heading)

Repeal the heading, substitute:

Part VIII--Procedure of service tribunals

Division 1--Summary authorities

75 Subsection 105A(3)

Omit "Subject to paragraph 103(1)(b), if", substitute "If".

76 Subsection 105A(3) (note)

Repeal the note.

77 Section 106

Before "A superior", insert "(1)".

78 At the end of section 106

Add:

(2) A superior summary authority has jurisdiction to take action under

Part IV in relation to a person in the circumstances referred to in

subsection 76(1A).

Note:

A superior summary authority may be disqualified from taking such

action because of subsection 108A(3).

79 At the end of section 107

Add:

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(3) A commanding officer has jurisdiction to take action under Part IV

in relation to a person in the circumstances referred to in

subsection 76(1A).

Note:

A commanding officer may be disqualified from taking such action

because of subsection 108A(3).

80 After subsection 108(3)

Insert:

(3A) A subordinate summary authority has jurisdiction to take action

under Part IV in relation to a person in the circumstances referred

to in subsection 76(1A).

Note:

A subordinate summary authority may be disqualified from taking

such action because of subsection 108A(3).

81 Section 108A (heading)

Repeal the heading, substitute:

108A Disqualification of summary authority from trying a charge or

taking action under Part IV

82 At the end of section 108A

Add:

(3) A summary authority must not take action under Part IV in relation

to a person for a service offence in the circumstances referred to in

subsection 76(1A) if, because of subsection (1), the summary

authority would not have been permitted to try the charge of the

service offence.

83 Sections 111B and 111C

Repeal the sections, substitute:

111B Election by accused person to have charge tried by the

Military Court

A summary authority who is dealing with, or trying, a charge

against an accused person must refer the charge to the Director of

Military Prosecutions if the accused person elects, under Division 1

of Part VII, to have the charge tried by the Military Court.

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Note:

The Director of Military Prosecutions may deal with the charge under

section 103A.

84 Divisions 3, 4 and 5 of Part VII

Repeal the Divisions.

85 Part VIII (heading)

Repeal the heading.

86 Division 1 of Part VIII (heading)

Repeal the heading.

87 Subparagraph 130(1)(a)(ii)

Omit ", subject to subsection 131(3),".

88 Sections 131 and 131AA

Repeal the sections.

89 Section 131B

Repeal the section.

90 Division 2 of Part VIII

Repeal the Division.

91 Subsection 139(1)

After "(5)", insert "and Division 2 of Part 3 of Schedule 3B".

92 Paragraph 139(4)(a)

Repeal the paragraph, substitute:

(a) is satisfied that the accused person:

(i) (except in relation to a charge of a custodial offence)

was given an opportunity to obtain legal advice in

relation to the right to elect to have the charge tried by

the Military Court; and

(ii) was not required to enter a plea to the charge within the

first 24 hours after being charged; and

(iii) understands the effect of the plea; and

93 Section 140

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Repeal the section.

94 Subparagraph 141(1)(b)(i)

Omit "section 144", substitute "section 190A".

95 Paragraph 141A(1)(b)

Omit "section 103", substitute "Division 2 of Part VII".

96 At the end of paragraphs 142(1)(a), (b), (ba) and (c)

Add "and".

97 Paragraph 142(1)(d)

Omit "offence; and", substitute "offence.".

98 Paragraph 142(1)(e)

Repeal the paragraph.

99 Section 144

Repeal the section.

100 Sections 145, 145A and 146

Repeal the sections, substitute:

145 Unfitness to be tried--proceedings before a summary authority

If, in a trial of a charge of a service offence by a summary

authority, it appears to the summary authority (whether on the

basis of evidence or otherwise) that the accused person may not be

able to understand the proceedings against him or her and

accordingly may be unfit to be tried, the summary authority must

refer the charge to the Director of Military Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103.

146 Mental impairment at time of conduct constituting service

offence--proceedings before a summary authority

If, in a trial of a charge of a service offence by a summary

authority, evidence is adduced that shows, or tends to show, that

the accused person, at the time of carrying out the conduct

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constituting the service offence, was suffering from such mental

impairment as not to be responsible for that conduct, the summary

authority must refer the charge to the Director of Military

Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103.

101 After subsection 146A(2)

Insert:

(2A) The summary authority must take judicial notice of all matters

within the general service knowledge of the summary authority.

102 Section 147

Repeal the section.

103 Subdivision B of Division 3 of Part VIII

Repeal the Subdivision.

104 Subdivision C of Division 3 of Part VIII (heading)

Repeal the heading, substitute:

Subdivision C--Rules of procedure for summary authorities

105 Section 149A

Repeal the section.

106 Subsection 152(1)

Repeal the subsection, substitute:

(1) As soon as practicable after a service tribunal:

(a) convicts a person of a service offence; or

(b) acquits a person of a service offence under subclause 35(1) of

Schedule 3B; or

circumstances referred to in subsection 76(1A);

the service tribunal must send the record of the proceedings to a

competent reviewing authority.

107 Subsection 152(3)

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Repeal the subsection, substitute:

(3) After reviewing the proceedings, the reviewing authority must give

written notice of the results of the review to:

(a) the person to whom the proceedings relate; and

(b) the service tribunal.

108 Subsection 153(1)

Repeal the subsection, substitute:

(1) If a service tribunal:

(a) convicts a person of a service offence; or

(b) acquits a person of a service offence under subclause 35(1) of

Schedule 3B; or

circumstances referred to in subsection 76(1A);

the person may lodge with a competent reviewing authority a

petition for a review of the proceedings concerned.

Note:

This subsection is affected by clause 54 of Schedule 3B, which deals

with the effect of an appeal to the Military Court on a review of

proceedings of a court martial or a Defence Force magistrate.

109 Subsection 153(1A)

Omit "within", substitute "before the end of".

110 Subsection 153(2)

Repeal the subsection.

111 Subsections 153(3) and (4)

Omit "or (2)".

112 Subsection 153(5)

Repeal the subsection.

113 Paragraph 154(1)(a)

Omit "a direction given under subsection 145(2) or (5)", substitute "an

acquittal under subclause 35(1) of Schedule 3B".

114 At the end of subsection 155(1)

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Add:

Note:

This subsection is affected by clause 54 of Schedule 3B, which deals

with the effect of an appeal to the Military Court on a review of

proceedings of a court martial or a Defence Force magistrate.

115 Section 156

Repeal the section.

116 Section 157

After "Division", insert "(other than section 162)".

117 Section 158 (heading)

Repeal the heading, substitute:

158 Quashing of conviction--general

118 Subsections 158(1) and (2)

Omit "Subject to subsection (5), where", substitute "If".

119 Subsections 158(3), (4) and (5)

Repeal the subsections.

120 After section 158

Insert:

158A Quashing of conviction--unfitness to be tried or mental

impairment at time of conduct constituting service offence

Unfitness to be tried

(1) Subject to subsection (9), if in a review it appears to the reviewing

authority that the service tribunal should have referred the charge

to which the conviction relates to the Director of Military

Prosecutions, under section 145 or clause 34 of Schedule 3B, on

the basis that the accused person was unfit to be tried, the

reviewing authority must:

(a) quash the conviction; and

(b) refer the charge to the Director of Military Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103.

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Mental impairment at time of conduct constituting service offence

(2) Subject to subsection (9), if in a review the reviewing authority is

satisfied that, at the time of carrying out the conduct constituting

the service offence to which the conviction relates, the convicted

person was suffering from such mental impairment as not to be

responsible for that conduct, the reviewing authority must:

(a) quash the conviction; and

(b) find the person not guilty of the service offence because of

mental impairment; and

(3) For the purpose of applying section 7.3 of the Criminal Code in

relation to a review, subsection 7.3(4) is taken to be omitted.

(4) If a reviewing authority acquits a person (the acquitted person) of

a service offence under subsection (2), the reviewing authority

may:

(a) by order, release the acquitted person:

(i) into the care of a responsible person, unconditionally, or

subject to conditions, for a specified period that does not

exceed 3 years; or

(ii) on condition that the acquitted person attend on another

person, or at a place, specified by the reviewing

authority, for assessment of the acquitted person's

mental impairment or for treatment (or both), but so that

the total period for which the acquitted person is

required to attend on that other person or at that place

does not exceed 3 years; or

(iii)

unconditionally;

(b) make any other order the reviewing authority considers

necessary, having regard to:

(i) the best interests of the acquitted person; and

(ii) the safety of any other person to whom the order relates;

and

(iii) the safety of the community generally.

(5) An order under paragraph (4)(b) must specify the period, not

exceeding 3 years, during which it is to have effect.

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Order relating to acquitted person may be varied or set aside

(6) The Director of Military Prosecutions or an acquitted person to

whom an order subsection (4) relates may apply for the order to be

varied or set aside.

(7) An application under subsection (6) must be made:

(a) if the acquitted person is a defence member at the time of the

application--to a service chief; or

(b) in any other case--to the Attorney-General.

(8) If an application is made under subsection (6) to a service chief or

the Attorney-General, the service chief or the Attorney-General (as

the case may be) may vary or set aside the order to which the

application relates.

Restriction on quashing a conviction under this section

(9) A reviewing authority must not quash a conviction under this

section if there are grounds for quashing the conviction under

section 158.

121 Section 159

Repeal the section, substitute:

159 Person taken to have been acquitted

(1) For the purposes of this Act, if a reviewing authority:

(a) quashes a conviction of a person of a service offence under

section 158; and

(b) does not order a new trial of the person for the offence;

the person is taken to have been acquitted of the offence.

(2) For the purposes of this Act, if:

(a) a reviewing authority quashes a conviction of a person of a

service offence (other than a custodial offence) under

subsection 158A(1); and

(b) the Director of Military Prosecutions directs that the charge

of the offence be not proceeded with;

the person is taken to have been acquitted of the offence.

Note:

See section 103 in relation to the powers of the Director of Military

Prosecutions in relation to the charge.

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38 Military Court of Australia (Transitional Provisions and Consequential Amendments)

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(3) For the purposes of this Act, if a reviewing authority quashes a

conviction of a person of a custodial offence under subsection

158A(1), the person is taken to have been acquitted of the offence.

122 Paragraph 160(1)(a)

Before "quashes", insert "under section 158,".

123 At the end of section 160

Add:

(4) If, in a review of proceedings of a summary authority, a reviewing

authority makes an order under subsection (1) for a new trial of a

person for a service offence, the reviewing authority must notify

the person, in writing, that the person may elect to have the charge

tried by the Military Court. The notice must include the

information referred to in paragraph 87A(2)(b).

Note:

Division 1 of Part VII deals with how to elect to have a charge tried by

the Military Court.

124 Subsection 162(3)

Repeal the subsection.

125 Subsection 162(5)

Omit "or (3)".

126 Subsection 162(5)

Omit "convicted the convicted person of the service offence of which

he or she was convicted", substitute "imposed the punishment or made

the order".

127 At the end of paragraphs 162(5)(a) and (b)

Add "or".

128 At the end of section 162

Add:

Definition of review

(10) In this section, review means a review under this Part of:

Amendment of the Defence Force Discipline Act 1982 Schedule 1

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Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 39

(a) proceedings of a service tribunal that have resulted in a

conviction; or

(b) proceedings in which a summary authority has taken action

under Part IV in relation to a person in the circumstances

referred to in subsection 76(1A).

129 Division 4 of Part VIIIA (heading)

Repeal the heading, substitute:

Division 4--Action on review of proceedings that have

resulted in a prescribed acquittal

130 Subsection 164(3)

Repeal the subsection, substitute:

(3) If in a review it appears to the reviewing authority that the service

tribunal should have referred the charge to which the prescribed

acquittal relates to the Director of Military Prosecutions, under

clause 34 of Schedule 3B, on the basis that the accused person was

unfit to be tried, the reviewing authority must:

(a) quash the prescribed acquittal; and

(b) refer the charge to the Director of Military Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103.

131 At the end of section 164

Add:

(5) If a reviewing authority quashes a prescribed acquittal under this

section, any order in force in relation to the prescribed acquitted

person under:

(a) subparagraph 158A(4)(a)(i) or (ii) or paragraph 158A(4)(b);

(b) subparagraph 35(3)(a)(i) or (ii) or paragraph 35(3)(b) of

Schedule 3B;

is taken to be revoked.

132 Section 165

Repeal the section, substitute:

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

40 Military Court of Australia (Transitional Provisions and Consequential Amendments)

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165 Person taken to have been acquitted

(1) For the purposes of this Act, if a reviewing authority:

(a) quashes a prescribed acquittal of a person of a service

offence under subsection 164(1) or (2); and

(b) does not order a new trial of the person for the offence;

the person is taken to have been acquitted of the offence without

qualification.

(2) For the purposes of this Act, if:

(a) a reviewing authority quashes a prescribed acquittal of a

person of a service offence (other than a custodial offence)

under subsection 164(3); and

(b) the Director of Military Prosecutions directs that the charge

of the offence be not proceeded with;

the person is taken to have been acquitted of the offence without

qualification.

Note:

See section 103 in relation to the powers of the Director of Military

Prosecutions in relation to the charge.

(3) For the purposes of this Act, if a reviewing authority quashes a

prescribed acquittal of a person of a custodial offence under

subsection 164(3), the person is taken to have been acquitted of the

offence without qualification.

133 Paragraph 166(1)(a)

Before "quashes", insert "under subsection 164(1) or (2),".

134 Subsection 169(2)

Omit "convicted the convicted person of the service offence of which

he or she was convicted", substitute "imposed the punishment or made

the order".

135 At the end of paragraphs 169(2)(a) and (b)

Add "or".

136 Section 169BB (cell at table item 2, column headed

"Relevant discipline officer")

Repeal the cell, substitute:

Any discipline officer

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137 Subsection 169E(4)

Omit all the words after paragraph (b), substitute "a relevant officer

may refer the matter to the Director of Military Prosecutions, or an

authorised member of the Defence Force for the purposes of section 87,

to be dealt with under that section".

138 Section 169J

Omit "other Part", substitute "provision of this Act other than this Part,

or under the Military Court Act,".

139 Subsection 171(1)

Omit ", a reviewing authority or the Defence Force Discipline Appeal

Tribunal", substitute "or a reviewing authority".

140 Section 173

Repeal the section.

141 Subsection 174(1)

Omit "or the Defence Force Discipline Appeals Act 1955".

142 Subsection 175(1)

Omit "The Registrar, an", substitute "An".

143 Paragraph 175(1)(a)

Omit "or the Defence Force Discipline Appeals Act 1955".

144 Subsection 175(2)

Omit "the Registrar,".

145 After section 175

Insert:

175A Release from custody pending approval of punishment or

dismissal from Defence Force

(1) This section applies in relation to:

(a) a person who is being kept in custody under subsection

172(3A), (4) or (5) pending approval by a reviewing

authority of a punishment imposed on the person; and

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42 Military Court of Australia (Transitional Provisions and Consequential Amendments)

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(b) a person who is being kept in custody under subsection

171(1C) until the dismissal of the person from the Defence

Force takes effect.

(2) A reviewing authority may release the person from custody:

(a) in the case of a person referred to in paragraph (1)(a)--

pending the decision under Division 5 of Part VIIIA to

approve or to not approve the punishment; and

(b) in the case of a person referred to in paragraph (1)(b)--until

the dismissal of the person from the Defence Force takes

effect.

(3) The reviewing authority:

(a) may impose on the person, in relation to the release, such

conditions or restrictions (being conditions or restrictions of a

kind authorised by the Chief of the Defence Force or a

service chief, by instrument in writing, for the purposes of

this section), as he or she considers necessary; and

(b) may vary or revoke any such condition or restriction.

(4) If the reviewing authority:

(a) imposes a condition or restriction on the person under this

section; or

(b) varies or revokes such a condition or restriction;

the reviewing authority must notify the person of the condition or

restriction, or the variation or revocation of the condition or

restriction, as soon as practicable.

(5) A person who is released from custody by a reviewing authority

under subsection (2) may again be taken into custody if:

(a) the person is in breach of a condition or restriction in force in

relation to the person under this section; or

(b) the person is arrested for another service offence.

(6) An instrument made by the Chief of the Defence Force or a service

chief under paragraph (3)(a) is not a legislative instrument.

146 Section 176

Repeal the section, substitute:

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176 Stay of execution of punishment pending review

(1) If a service tribunal has imposed a punishment on a convicted

person, the reviewing authority who is reviewing the proceedings

under section 152 may order that the execution of the punishment

be stayed in whole or in part pending the completion of the review

under that section.

(2)

If:

(a) a service tribunal has imposed a punishment on a convicted

person; and

(b) the convicted person lodges a petition under section 153 for

review of the proceedings with respect to the conviction or

punishment;

the reviewing authority may order that the execution of the

punishment be stayed in whole or in part pending the completion

of the review.

Note:

An order under this section may be appropriate in relation to a

punishment that can take effect without being approved by a

reviewing authority. Certain punishments do not take effect unless

they are approved by a reviewing authority: see section 172 and

Division 5 of Part VIIIA.

147 Part XI (heading)

Repeal the heading, substitute:

Part XI--Judge Advocate General and Deputy

Judge Advocates General

148 Division 1 of Part XI (heading)

Repeal the heading.

149 Divisions 2 and 3 of Part XI

Repeal the Divisions.

150 Paragraph 188GA(1)(a)

Repeal the paragraph, substitute:

(aa) to institute and carry on proceedings in the Military Court;

(a) to carry on prosecutions for service offences in proceedings

before a court martial or a Defence Force magistrate;

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44 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

151 Paragraph 188GA(1)(d)

Repeal the paragraph.

152 After section 188GA

Insert:

188GAA Minister may issue directions and guidelines

(1) In performing the functions and exercising the powers of the

Director of Military Prosecutions, the Director of Military

Prosecutions is subject to such directions and guidelines as the

Minister, after consultation with the Attorney-General and the

Director of Military Prosecutions, issues, in writing, to the Director

of Military Prosecutions.

(2) Without limiting subsection (1), directions or guidelines may:

(a) relate to the circumstances in which the Director of Military

Prosecutions should institute or carry on proceedings in

respect of service offences; and

(b) relate to the circumstances in which undertakings should be

given under section 188GD; and

(3) If the Minister issues a direction or a guideline, the Minister must:

(a) as soon as practicable after the relevant time in relation to the

direction or guideline, cause a copy of the direction or

guideline to be published in the Gazette; and

(b) cause a copy of that direction or guideline to be laid before

each House of the Parliament within 15 sitting days of that

House after that time.

(4) Subject to subsection (5), the relevant time for the purposes of

subsection (3), in relation to a direction or guideline, is the time

when the direction or guideline is made.

(5)

If:

(a) a direction or guideline relates to a matter in relation to which

proceedings may be instituted or are being carried on; and

(b) the Minister is satisfied that the interests of justice require

that the contents of the direction or guideline not be

disclosed;

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the relevant time for the purposes of subsection (3), in relation to

the direction or guideline, is the earlier of the following:

matter mentioned in paragraph (b);

(d) the time when (as the case may be):

(i) it is decided that no proceedings will be instituted in

relation to the matter; or

(ii) all proceedings in relation to the matter (including

proceedings by way of appeal from, or otherwise arising

out of, proceedings in relation to the matter) are

determined or discontinued.

(6) A direction or guideline issued under this section is not a

legislative instrument.

153 Section 188GB

After "proceedings before", insert "the Military Court,".

154 Paragraph 188GJ(2)(b)

Omit "General; or", substitute "General.".

155 Paragraph 188GJ(2)(c)

Repeal the paragraph.

156 At the end of section 190

Add:

(5) In this section, civil court does not include the Military Court.

157 After section 190

Insert:

190A Previous acquittal or conviction

(1) If a person has been acquitted or convicted of a service offence in

respect of an act or omission, the person is not liable to be tried for

that service offence, or for a service offence that is substantially the

same as that service offence, in respect of that act or omission.

(2)

If:

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46 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

(a) under subsection 144(1) of the Military Court Act, the

Military Court has taken a service offence into consideration

in relation to a convicted person; or

(b) under subsection 77(1) of this Act, a court martial or a

Defence Force magistrate has taken a service offence into

consideration in relation to a convicted person;

the person is not liable to be tried for that service offence, or for a

service offence that is substantially the same offence as that service

offence.

(3)

If:

(a) a person has been acquitted or convicted by a civil court of a

civil court offence; or

(b) a person has been acquitted or convicted by an overseas court

of an overseas offence;

the person is not liable to be tried for a service offence that is

substantially the same as the civil court offence or the overseas

offence (as the case may be).

(4) If a defence member has been dealt with by a discipline officer

under Part IXA in respect of an act or omission constituting a

disciplinary infringement for the purposes of that Part, the member

is not liable to be tried for a service offence corresponding to the

disciplinary infringement.

(5) For the purpose of subsection (4), the exercise by a discipline

officer of the power conferred by subsection 169F(3) does not

constitute dealing with a defence member under Part IXA.

(6) For the purposes of this section:

(a) the dismissal of a charge under section 130 or clause 14 or 28

of Schedule 3B is taken to be an acquittal of the service

offence the subject of the charge; and

(b) a direction under Division 2 of Part VII or section 110 or 111

that a charge be not proceeded with is taken not to be an

acquittal of the service offence the subject of the charge; and

person, or the discharge of a person in proceedings on a

charge of a service offence, by the Military Court under

section 19B of the Crimes Act 1914 is taken to be an acquittal

of the offence; and

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(d) the dismissal of a charge of a civil court offence against a

person, or the discharge of a person in proceedings on a

charge of a civil court offence, by a civil court, under

section 19B of the Crimes Act 1914 or any corresponding

provision of a law of a State or Territory, is taken to be an

acquittal of the offence.

190B Effect of conviction (other than of certain disciplinary

offences) by the Military Court, a court martial or a

Defence Force magistrate

(1) This section applies in relation to a conviction of a person of a

service offence (other than a service offence referred to in

Schedule 7) by:

(a) the Military Court; or

(b) a court martial; or

(2) If a record of the conviction is kept, the record must state that the

conviction is a conviction of a service offence.

(3) A service chief or an authorized officer may disclose the fact that a

person has been convicted of a service offence, and any

information relating to the conviction, to an authority of the

Commonwealth, or of a State or a Territory, for purposes

connected with investigating, prosecuting or keeping records in

relation to offences against laws of the Commonwealth, the State

or the Territory.

(4) For the purpose of complying with a requirement or an

authorisation to disclose, for a lawful purpose, the fact that a

person has been convicted of an offence against a law of the

Commonwealth that is a service offence, the disclosure must

expressly refer to the offence as a service offence.

Note:

Part VIIC of the Crimes Act 1914 exempts a person from having to

disclose a spent conviction.

(5) This section applies in relation to a conviction that occurs after the

commencement of this section.

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48 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

190C Effect of conviction by a summary authority and certain

convictions by the Military Court, a court martial or a

Defence Force magistrate

(1) This section applies in relation to:

(a) a conviction of a person of a service offence by a summary

authority; and

(b) a conviction of a person of a service offence referred to in

Schedule 7 by:

(i) the Military Court; or

(ii) a court martial; or

(iii) a Defence Force magistrate.

(2) The conviction has effect for service purposes only.

(3) The convicted person is not required to disclose to any person, for

any purpose (other than a service purpose), the fact that the person

has been convicted of the service offence.

Note:

A person who has been convicted of a service offence to which this

section applies is not required to disclose the conviction for service

purposes if the conviction is spent within the meaning of Part VIIC of

the Crimes Act 1914.

(4) Subsections (2) and (3) have effect despite subsection 3A(1).

(5) This section applies in relation to a conviction whether it occurs

before or after the commencement of this section.

190D Representation of accused person

(1) An accused person who:

(a) is advised by a legal officer in relation to a proceeding

(including an appeal) in the Military Court, or a proceeding

before a court martial or a Defence Force magistrate; or

(b) is represented at such a proceeding by a legal officer;

must be so advised or represented without expense to the accused

person.

(2) Subsection (1) does not prevent the operation of any scheme of

legal aid, advice or assistance under a law of the Commonwealth or

of a State or Territory.

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Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

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158 Paragraphs 191(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

(a) the acquittal or conviction by a service tribunal of a person of

a service offence; or

(b) the dismissal of a charge of a service offence against a person

under section 130 or clause 14 or 28 of Schedule 3B; or

159 Subsection 193(4)

Repeal the subsection, substitute:

(4) An action, suit or proceeding does not lie against the Director of

Military Prosecutions, or a person assisting the Director of Military

Prosecutions, in relation to an act done or omitted to be done in

good faith in the exercise or purported exercise of a power, or the

performance or purported performance of a function, conferred by

or under this Act or any other law of the Commonwealth.

(5) An action, suit or proceeding does not lie against a superior

authority in relation to an act done or omitted to be done in good

faith in the exercise or purported exercise of a power, or the

performance or purported performance of a function, as a superior

authority.

160 Section 194

Repeal the section.

161 Section 195

Repeal the section, substitute:

195 Access to record of proceedings before court martial or Defence

Force magistrate

Application by accused person or convicted person

(1) A person who is or was the accused person or the convicted person

in proceedings before a court martial or a Defence Force magistrate

may apply to a service chief or an authorized officer for a copy of

the record of the proceedings.

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Part 1 Main amendments

50 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

Application by representative of deceased person

(2) If the person (the deceased person) has died, either of the

following may apply to a service chief or an authorized officer for

a copy of the record of the proceedings:

(a) the deceased person's legal personal representative;

(b) a person approved by the service chief or the authorized

officer as the deceased person's representative.

(3) If the deceased person has a legal personal representative, a service

chief or an authorized officer must not approve a person under

paragraph (2)(b) unless the service chief or the authorized officer is

satisfied that the deceased person's legal personal representative

has declined to make an application under subsection (2).

Record of proceedings to be given

(4) If a person applies for a copy of a record of proceedings under

subsection (1) or (2), the service chief or the authorized officer

must give a copy of the record to the person.

(5) Nothing in this section authorises or requires a copy of a record of

proceedings, or of part of such a record, to be given if an order

under subsection 148(2) or paragraph 33(2)(b) of Schedule 3B

prohibits the publication of the record or the part of the record.

Proceedings in civil courts not affected

(6) Nothing in this section affects:

(a) the power of a civil court to make an order for the discovery

of documents; or

(b) the giving of evidence in, or the production of documents to,

a civil court.

162 Subsection 196A(4)

Repeal the subsection, substitute:

(4) A report under subsection (1) must not relate to:

(a) decisions of the Military Court; or

(b) the operation or management of the administrative affairs of

the Military Court; or

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No. , 2012 51

Note:

The Chief Justice of the Military Court is required to prepare an

annual report on the management of the administrative affairs of the

Military Court: see section 47 of the Military Court Act.

163 Schedules 1A and 1

Repeal the Schedules.

164 Schedule 3

Repeal the Schedule, substitute:

Schedule 3--Punishments that may be

imposed by a summary authority

Note:

See subsection 67(2).

Table A--Punishments that may be imposed by a superior summary authority

on certain officers

Item Column

Convicted person

Column 2

Punishment

1 Officer:

(a) of or below the rank of rear

admiral but above the rank of

lieutenant commander; or

(b) of or below the rank of

major-general but above the

rank of major; or

vice-marshal but above the

rank of squadron leader

Fine not exceeding the amount of

the convicted person's pay for 7

days

Severe reprimand

Reprimand

Table B--Punishments that may be imposed by a superior summary authority

on other persons

Item Column

Convicted person

Column 2

Punishment

Officer of or below the rank of

lieutenant commander, major or

squadron leader

Warrant officer

Fine not exceeding the amount of

the convicted person's pay for 14

days

Severe reprimand

Reprimand

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52 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

Table B--Punishments that may be imposed by a superior summary authority

on other persons

Item Column

Convicted person

Column 2

Punishment

Person who is not a member of

the Defence Force

Fine not exceeding 7 penalty units

Table C--Punishments that may be imposed by a commanding officer on

convicted persons

Item Column

Convicted person

Column 2

Punishment

Officer of or below the naval rank

of lieutenant, the rank of captain

in the Army or the rank of flight

lieutenant

Warrant officer

Fine not exceeding the amount of

the convicted person's pay for 14

days

Severe reprimand

Reprimand

Non-commissioned officer

Reduction in rank by one rank or,

in the case of a corporal of the

Army, reduction in rank by one or

2 ranks

Forfeiture of seniority

Fine not exceeding the amount of

the convicted person's pay for 14

days

Severe reprimand

Reprimand

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Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

No. , 2012 53

Table C--Punishments that may be imposed by a commanding officer on

convicted persons

Item Column

Convicted person

Column 2

Punishment

Member below non-commissioned

rank who, at the time he or she

committed the service offence of

which he or she has been

convicted, was on active service

Detention for a period not

exceeding 42 days

Fine not exceeding the amount of

the convicted person's pay for 28

days

Severe reprimand

Restriction of privileges for a

period not exceeding 14 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

Member below non-commissioned

rank who, at the time he or she

committed the service offence of

which he or she has been

convicted, was not on active

service

Detention for a period not

exceeding 28 days

Fine not exceeding the amount of

the convicted person's pay for 28

days

Severe reprimand

Restriction of privileges for a

period not exceeding 14 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

Person who is not a member of the

Defence Force

Fine not exceeding 7 penalty units

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54 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

Table D--Punishments that may be imposed by a subordinate summary

authority on convicted persons

Item Column

Convicted person

Column 2

Punishment

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

2 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

165 After Schedule 3A

Insert:

Schedule 3B--Courts martial and Defence

Force magistrates

Note:

See paragraphs 103C(2)(c) and 103E(2)(c).

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No. , 2012 55

Part 1--Courts martial

Division 1--Convening a court martial and jurisdiction

1 Convening order and appointment of court martial

(1) A superior authority must make an order convening a court martial

if the Director of Military Prosecutions directs the superior

authority to do so under subparagraph 103C(2)(c)(ii) or

103E(2)(c)(ii) or under subclause 19(6) or paragraph 31(4)(d) of

this Schedule.

Note 1:

Subparagraph 103C(2)(c)(ii) provides for the Director of Military

Prosecutions to direct a superior authority to convene a court martial

to try a charge if the charge is taken to have been withdrawn from the

Military Court under paragraph 51(5)(d) of the Military Court Act

because the Military Court has determined that it is necessary, but not

possible, for it to sit at a place outside Australia to hear and determine

a proceeding, or a part of a proceeding, in respect of the charge.

Note 2:

Subparagraph 103E(2)(c)(ii) provides for the Director of Military

Prosecutions to direct a superior authority to convene a court martial

to try a charge against a person if a trial of the charge under this

Schedule is discontinued before the charge is dismissed or the person

is convicted or acquitted of the charge.

Note 3:

Subclause 19(6) and paragraph 31(4)(d) of this Schedule provide for

the Director of Military Prosecutions to direct a superior authority to

convene a court martial to take action under Part IV in relation to a

convicted person if a proceeding under this Schedule is discontinued

after the person has been convicted but before such action has been

taken.

(2) A superior authority must, in an order convening a court martial:

(a)

appoint:

(i) the President and the other members; and

(ii) an adequate number of reserve members; and

(iii) the judge advocate; and

(b) fix, or provide for the fixing of, the time and place for the

assembling of the court martial.

Note:

Division 2 sets out provisions relating to the membership of a court

martial.

(3) The appropriate service chief must make available, for the

purposes of a court martial, a defence member who is appointed to

be a member of the court martial.

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56 Military Court of Australia (Transitional Provisions and Consequential Amendments)

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(4) At any time before a court martial assembles to try a charge, the

convening superior authority may, after consulting the Director of

Military Prosecutions:

(a) vary the order convening the court martial; or

(b) make an order convening a new court martial.

(5) A court martial must not be convened otherwise than under this

clause.

2 Types of court martial

(1) A court martial is to be either a general court martial or a restricted

court martial.

(2) A general court martial consists of a President and not fewer than 4

other members.

(3) A restricted court martial consists of a President and not fewer than

2 other members.

3 Jurisdiction of court martial

(1) A court martial has, subject to section 63 and to subclause (3) of

this clause, jurisdiction to try any charge against any person.

Note:

A court martial can only be convened under clause 1 of this Schedule:

see subclause 1(5).

(2) A court martial also has jurisdiction to take action under Part IV in

relation to a convicted person if the court martial has been

convened for that purpose because of a direction under subclause

19(6) or paragraph 31(4)(d) of this Schedule.

Note:

A court martial convened because of a direction under subclause 19(6)

or paragraph 31(4)(d) must hear evidence before taking action under

Part IV: see subclauses 19(7) and 31(5).

(3) A court martial does not have jurisdiction to try a charge of a

custodial offence.

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4 Accused person must be notified of making or variation of

convening order

(1) The convening superior authority for a court martial must, as soon

as practicable after making the order convening the court martial,

give a copy of the order to the accused person.

(2) If the convening superior authority for a court martial varies the

order convening the court martial, he or she must notify the

accused person accordingly.

Division 2--Membership of court martial

5 Eligibility to be member of court martial

(1) For the purposes of this Act, a person is eligible to be a member, or

a reserve member, of a court martial only if:

(a) the person is an officer; and

(b) the person has been an officer for a continuous period of not

less than 3 years or for periods amounting in the aggregate to

not less than 3 years; and

the accused person (being a member of the Defence Force) or

by any of the accused persons (being members of the

Defence Force).

(2) For the purposes of this Act, an officer is eligible to be the

President of a court martial only if the officer holds a rank that is

not lower than:

(a) in the case of a general court martial--the naval rank of

captain or the rank of colonel or group captain; or

(b) in the case of a restricted court martial--the rank of

commander, lieutenant-colonel or wing commander.

(3) Subclause (2) does not apply in relation to a person who becomes

the President of a court martial because of:

(a) an appointment made under paragraph 10(1)(e) of this

Schedule; or

(b) subclause 11(1) of this Schedule.

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(4) The requirements set out in paragraph (1)(c) and subclause (2)

apply only if, and to the extent that, the exigencies of service

permit.

6 Eligibility to be judge advocate

For the purposes of this Act, a person is eligible to be the judge

advocate of a court martial only if the person is a member of the

judge advocates' panel.

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).

7 Restrictions on appointment of members of courts martial

(1) The convening superior authority for a court martial must not

appoint a person as:

(a) the President of the court martial; or

(b) a member or reserve member of the court martial; or

if the convening superior authority believes the person to be:

(d) biased or likely to be biased; or

(e) likely to be thought, on reasonable grounds, to be biased.

(2) The convening superior authority for a court martial must not

appoint a person as the judge advocate of the court martial unless

the Judge Advocate General has nominated the person for that

position.

8 Notification of belief of bias

A member or reserve member, or the judge advocate, of a court

martial who believes himself or herself:

(a) to be biased, or likely to be biased; or

(b) likely to be thought, on reasonable grounds, to be biased;

must notify the convening superior authority as soon as practicable

after forming that belief.

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9 Substitution of members etc.

At any time before a court martial is sworn or affirmed, the

convening superior authority may:

(a) revoke the appointment of an officer (the original officer) to

be a member or reserve member of the court martial or the

judge advocate; and

(b) appoint another officer to be a member or reserve member or

the judge advocate (as the case may be) in the place of the

original officer.

Note:

The convening superior authority must not appoint a person as the

judge advocate of the court martial unless the person has been

nominated by the Judge Advocate General: see clause 7 of this

Schedule.

10 Replacement of members etc.

(1) If, after a court martial has assembled but before it is sworn or

affirmed, the judge advocate:

(a) finds that a member of the court martial who has not

appeared at the place of assembly is not, or is not likely to be,

available; or

(b) upholds an objection entered under subsection 141(2) to a

member of the court martial; or

martial should be excused from further attendance as such a

member;

the judge advocate must:

(d) if the member concerned is not the President--appoint a

reserve member in the place of that member; or

(e) if the member concerned is the President and the next senior

member is not more than one rank junior to the President--

appoint that next senior member to be the President in the

place of the member concerned; or

(f) if the member concerned is the President and the next senior

member is more than one rank junior to the President--report

the situation to the convening superior authority and request

the convening superior authority to appoint a President in the

place of the member concerned.

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(2) If, after a court martial has assembled but before it is sworn or

affirmed, the judge advocate finds that there are insufficient

members and reserve members to properly constitute the court

martial, the judge advocate must:

(a) report the situation to the convening superior authority; and

(b) request the convening superior authority to appoint as many

new members or new reserve members, or both, as the

convening superior authority considers necessary.

(3) If the judge advocate upholds an objection entered under

subsection 141(3) to himself or herself, he or she must report the

situation to the convening superior authority and request the

convening superior authority to appoint another judge advocate in

his or her place.

Note:

The convening superior authority must not appoint a person as the

judge advocate of the court martial unless the person has been

nominated by the Judge Advocate General: see clause 7 of this

Schedule.

11 Inability to attend after plea

(1) If the President of a court martial is unable to attend at any time

after the accused person's plea of not guilty or guilty has been

recorded by the court martial:

(a) the next senior member becomes the President of the court

martial; and

(b) the first-mentioned President must not take any further part in

the proceeding.

(2) If a member of a court martial is unable to attend at any time after

the accused person's plea of not guilty or guilty has been recorded

by the court martial, the member must not take any further part in

the proceeding.

Division 3--Trial by court martial

12 Application of this Division

This Division sets out certain provisions relating to the trial of a

charge by a court martial.

Note:

Part 3 of this Schedule and Division 3 of Part VIII contain other

provisions relating to the trial of a charge by a court martial.

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13 Plea of guilty or not guilty

(1) Before the court martial begins to hear the evidence on the charge,

the judge advocate must ask the accused person whether he or she

pleads guilty or not guilty to the charge.

Plea of guilty

(2)

If:

(a) the accused person pleads guilty; and

(b) the judge advocate is satisfied that the accused person

understands the effect of the plea;

the court martial must convict the accused person.

(3)

If:

(a) the accused person pleads guilty; and

(b) the judge advocate is not satisfied that the accused person

understands the effect of the plea;

the court martial must record a plea of not guilty and proceed to

hear the evidence on the charge.

(4) If the accused person pleads guilty to a service offence that is one

(other than the first) of 2 or more charges stated in the charge sheet

in the alternative, the court martial must:

(a) if the Director of Military Prosecutions notifies the court

martial that he or she does not object to the acceptance of the

plea--accept the plea and convict the accused person; or

(b) otherwise--record a plea of not guilty and proceed to hear

the evidence on the charge.

Plea of not guilty etc.

(5) If the accused person pleads not guilty, the court martial must

record a plea of not guilty and proceed to hear the evidence on the

charge.

(6) If the accused person:

(a) refuses to plead; or

(b) does not plead intelligibly;

the court martial must record a plea of not guilty and proceed to

hear the evidence on the charge.

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(7)

If:

(a) the accused person pleads not guilty; and

(b) the accused person later withdraws that plea and pleads

guilty; and

understands the effect of the plea of guilty;

the court martial must substitute a plea of guilty for the plea of not

guilty and proceed accordingly under this clause.

14 Sufficiency of evidence

(1) If the judge advocate, after hearing the evidence on the charge

adduced by the prosecution, rules that the evidence is insufficient

to support the charge, the court martial must dismiss the charge.

(2) If the judge advocate, after hearing the evidence on the charge

adduced by the prosecution, rules that the evidence is sufficient to

support the charge, the court martial must proceed with the trial.

(3) However, this clause does not require the judge advocate to give a

ruling of the kind referred to in subclause (1) unless:

(a) the accused person has submitted that the judge advocate

should give a ruling of the kind referred to in subclause (1);

(b) the interests of justice require the judge advocate to give a

ruling of the kind referred to in subclause (1).

(4) Also, this clause does not require the judge advocate to give a

ruling of the kind referred to in subclause (2) unless the accused

person has submitted that the judge advocate should give a ruling

of the kind referred to in subclause (1).

15 Finding of guilty or not guilty

(1) If, after hearing evidence on the charge, the court martial finds the

accused person guilty, the court martial must convict the accused

person.

(2) If, after hearing evidence on the charge, the court martial finds the

accused person not guilty, the court martial must acquit the

accused person.

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16 Action after conviction

(1) If the court martial convicts the accused person, the court martial

must take action under Part IV in relation to the convicted person.

(2) Before taking action under Part IV, the court martial must hear any

evidence relevant to the determination of the action that should be

taken.

Division 4--Determination of questions etc.

17 Determination of questions by court martial

(1) Subject to clause 18 of this Schedule, in a proceeding before a

court martial:

(a) the President must preside; and

(b) every question must be determined by the members of the

court martial.

(2) Every question determined by the members of the court martial

must be decided by a majority of the votes of the members.

(3) Subject to subclauses (4) and (5), if the votes are equal on any

question referred to in subclause (2), the President has a casting

vote.

(4) If the votes are equal on the question whether an accused person is

guilty or not guilty of a service offence, the court martial must find

the accused person not guilty.

(5) If the votes are equal on the question whether an accused person, at

the time of carrying out the conduct constituting the service

offence, was suffering from such mental impairment as not to be

responsible for that conduct, the court martial must find that the

person was, at that time, suffering from that mental impairment.

(6) Despite any other provision of this Act, the members of a court

martial must sit without any other person present:

(a) in determining the question whether an accused person:

(i) is guilty or not guilty of a service offence; or

(ii) was suffering from such mental impairment at the time

of carrying out the conduct constituting the service

offence as not to be responsible for that conduct; or

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(b) in determining the action that is to be taken under Part IV in

relation to a convicted person.

18 Powers of judge advocate

(1) In a proceeding before a court martial, the judge advocate must

give any ruling, and exercise any discretion, that, in accordance

with the law in force in the Jervis Bay Territory, would be given or

exercised by a judge in a trial by jury.

(2) If a judge in a trial by jury in the Jervis Bay Territory would sit in

the absence of the jury for any purpose in relation to the giving of a

ruling, or the exercise of a discretion, under the law in force in that

Territory, then the judge advocate must sit without the members of

the court martial for any purpose in relation to the giving of such a

ruling, or the exercise of such a discretion, by the judge advocate.

(3) Despite subclauses (1) and (2), in a proceeding before a court

martial:

(a) the members of the court martial must determine the action

that is to be taken under Part IV in relation to a convicted

person; and

(b) the judge advocate must give a ruling on any question of law

arising in connection with the making of such a

determination.

(4) A ruling given by the judge advocate in accordance with

subclause (1) or (3), or a decision made by the judge advocate

under subsection 141(5) or (6) or under subclause 20(2) of this

Schedule, is binding on the court martial.

(5) The judge advocate, if sitting without the members of a court

martial, may exercise such of the powers of the court martial or the

President as are necessary for the performance of his or her duties.

(6) The powers conferred on the judge advocate by this clause are in

addition to any other powers conferred on the judge advocate by

any other provision of this Act, the regulations or the rules of

procedure.

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Division 5--Dissolution of court martial

19 General provisions

(1) If, after a court martial has assembled but before it is sworn or

affirmed, the judge advocate considers that by reason of the

exigencies of service or for any other reason it is desirable to do so,

the judge advocate may direct the convening superior authority to

dissolve the court martial.

(2) If, at any time after a court martial is sworn or affirmed, the judge

advocate considers that, in the interests of justice, the court martial

should be dissolved, the judge advocate must direct the convening

superior authority to dissolve the court martial.

(3)

If:

(a) at any time after a court martial is sworn or affirmed, there is

an insufficient number of members to properly constitute the

court martial; or

(b) at any time after the accused person's plea of guilty or not

guilty has been recorded by a court martial, the judge

advocate is unable to attend;

the convening superior authority must dissolve the court martial.

(4)

If:

(a) a court martial has adjourned the hearing of a proceeding

before it; and

(b) the judge advocate considers that, by reason of the exigencies

of service, it will not be practicable to continue the hearing of

the proceeding at a later date;

the judge advocate must direct the convening superior authority to

dissolve the court martial.

(5) If a court martial that is trying a charge is dissolved under this

clause at any time before the dismissal of the charge or the

acquittal or conviction of the accused person, the convening

superior authority must refer the charge to the Director of Military

Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103E.

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(6) If a court martial is dissolved under subclause (2), (3) or (4) after it

has convicted a person but before it has taken action under Part IV

in relation to the convicted person, the Director of Military

Prosecutions may direct the convening superior authority to

convene another court martial for the purpose of taking such

action.

(7) Before taking action in accordance with subclause (6), a court

martial must hear any evidence relevant to the determination of the

action that should be taken.

(8) For the purposes of this Act, a member of a court martial convened

because of a direction under subclause (6) is not to be taken to be

biased only because he or she was a member of the court martial

that was dissolved as mentioned in that subclause.

20 Application for charge to be tried by the Military Court

(1) At any time before an accused person is asked to plead to a charge

(the first charge) at a trial by a court martial, the accused person

may apply for the court martial to be dissolved on the ground that,

due to a change in circumstances, it would be possible for the first

charge, and all other charges (if any) being dealt with together with

the first charge, to be tried by the Military Court.

(2)

If:

(a) the accused person makes an application under subclause (1);

and

(b) the judge advocate of the court martial is satisfied that, due to

the change in circumstances, it would be possible for the

charge or charges to be tried by the Military Court;

the judge advocate must grant the application and direct the

convening superior authority to dissolve the court martial.

(3) If a convening superior authority dissolves a court martial under

subclause (2), the convening superior authority must refer the

charge or charges to the Director of Military Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge or

charges under section 103E.

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Part 2--Defence Force magistrates

Division 1--Referral of charge to Defence Force magistrate

etc.

21 Referral of charge or case to Defence Force magistrate

(1) A superior authority must refer a charge to a Defence Force

magistrate for trial if the Director of Military Prosecutions directs

the superior authority to do so under subparagraph 103C(2)(c)(i) or

103E(2)(c)(i).

Note 1:

Subparagraph 103C(2)(c)(i) provides for the Director of Military

Prosecutions to direct a superior authority to refer a charge to a

Defence Force magistrate if the charge is taken to have been

withdrawn from the Military Court under paragraph 51(5)(d) of the

Military Court Act because the Military Court has determined that it is

necessary, but not possible, for it to sit at a place outside Australia to

hear and determine a proceeding, or a part of a proceeding, in respect

of the charge.

Note 2:

Subparagraph 103E(2)(c)(i) provides for the Director of Military

Prosecutions to direct a superior authority to refer a charge against a

person to a Defence Force magistrate if a trial of the charge under this

Schedule is discontinued before the charge is dismissed or the person

is convicted or acquitted of the charge.

(2) A superior authority must refer a charge or a case to a Defence

Force magistrate to take action under Part IV in relation to a

convicted person if the Director of Military Prosecutions directs

the superior authority to do so under paragraph 31(4)(c) of this

Schedule.

Note:

Paragraph 31(4)(c) of this Schedule provides for the Director of

Military Prosecutions to direct a superior authority to refer a charge or

a case to a Defence Force magistrate to take action under Part IV in

relation to a convicted person if a proceeding under this Division is

discontinued after the person has been convicted but before such

action has been taken.

(3) A charge or case must not be referred to a Defence Force

magistrate otherwise than under this clause.

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22 Judge Advocate General to nominate Defence Force magistrate

(1) A superior authority must not refer a charge to a Defence Force

magistrate unless the Judge Advocate General has nominated the

Defence Force magistrate to try the charge.

(2) A superior 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

Defence Force magistrate to take action in relation to the person.

23 Jurisdiction and powers of Defence Force magistrate

(1) A Defence Force magistrate has the same jurisdiction and powers

as a restricted court martial (including the powers of the judge

advocate of a restricted court martial).

Note:

A charge or case may only be referred to a Defence Force magistrate

under clause 21 of this Schedule: see subclause 21(3).

(2) A Defence Force magistrate also has jurisdiction to take action

under Part IV in relation to a convicted person if the case has been

referred to the magistrate under subclause 21(2) of this Schedule

for that purpose.

Note:

If a case is referred to a Defence Force magistrate because of a

direction under paragraph 31(4)(c) of this Schedule, the magistrate

must hear evidence before taking action under Part IV: see subclause

31(5) of this Schedule.

24 Appointment of Defence Force magistrate

(1) The Judge Advocate General may, by instrument in writing,

appoint an officer to be a Defence Force magistrate.

(2) An officer is not eligible to be a Defence Force magistrate unless

the officer is a member of the judge advocates' panel.

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).

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25 Oath or affirmation of Defence Force magistrate

(1) A Defence Force magistrate must, before proceeding to discharge

the duties of his or her office, make and subscribe an oath or

affirmation in accordance with the form in Schedule 4.

(2) An oath or affirmation under this clause must be made before the

Judge Advocate General or an officer authorised, in writing, by the

Judge Advocate General for the purpose.

Division 2--Trial by Defence Force magistrate

26 Application of this Division

This Division sets out certain provisions relating to the trial of a

charge by a Defence Force magistrate.

Note:

Part 3 of this Schedule and Division 3 of Part VIII contain other

provisions relating to the trial.

27 Plea of guilty or not guilty

(1) Before the Defence Force magistrate begins to hear the evidence

on the charge, the Defence Force magistrate must ask the accused

person whether he or she pleads guilty or not guilty to the charge.

Plea of guilty

(2)

If:

(a) the accused person pleads guilty; and

(b) the Defence Force magistrate is satisfied that the accused

person understands the effect of the plea;

the Defence Force magistrate must convict the accused person.

(3)

If:

(a) the accused person pleads guilty; and

(b) the Defence Force magistrate is not satisfied that the accused

person understands the effect of the plea;

the Defence Force magistrate must record a plea of not guilty and

proceed to hear the evidence on the charge.

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(4) If the accused person pleads guilty to a service offence that is one

(other than the first) of 2 or more charges stated in the charge sheet

in the alternative, the Defence Force magistrate must:

(a) if the Director of Military Prosecutions notifies the Defence

Force magistrate that he or she does not object to the

acceptance of the plea--accept the plea and convict the

accused person; or

(b) otherwise--record a plea of not guilty and proceed to hear

the evidence on the charge.

Plea of not guilty etc.

(5) If the accused person pleads not guilty, the Defence Force

magistrate must record a plea of not guilty and proceed to hear the

evidence on the charge.

(6) If the accused person:

(a) refuses to plead; or

(b) does not plead intelligibly;

the Defence Force magistrate must record a plea of not guilty and

proceed to hear the evidence on the charge.

(7)

If:

(a) the accused person pleads not guilty; and

(b) the accused person later withdraws that plea and pleads

guilty; and

person understands the effect of the plea of guilty;

the Defence Force magistrate must substitute a plea of guilty for

the plea of not guilty and proceed accordingly under this clause.

28 Sufficiency of evidence

(1) If the Defence Force magistrate, after hearing the evidence on the

charge adduced by the prosecution, rules that the evidence is

insufficient to support the charge, the Defence Force magistrate

must dismiss the charge.

(2) If the Defence Force magistrate, after hearing the evidence on the

charge adduced by the prosecution, rules that the evidence is

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sufficient to support the charge, the Defence Force magistrate must

proceed with the trial.

(3) However, this clause does not require the Defence Force magistrate

to give a ruling of the kind referred to in subclause (1) unless:

(a) the accused person has submitted that the Defence Force

magistrate should give a ruling of the kind referred to in

subclause (1); or

(b) the interests of justice require the Defence Force magistrate

to give a ruling of the kind referred to in subclause (1).

(4) Also, this clause does not require the Defence Force magistrate to

give a ruling of the kind referred to in subclause (2) unless the

accused person has submitted that the Defence Force magistrate

should give a ruling of the kind referred to in subclause (1).

29 Finding of guilty or not guilty

(1) If, after hearing evidence on the charge, the Defence Force

magistrate finds the accused person guilty, the Defence Force

magistrate must convict the accused person.

(2) If, after hearing evidence on the charge, the Defence Force

magistrate finds the accused person not guilty, the Defence Force

magistrate must acquit the accused person.

30 Action after conviction

(1) If the Defence Force magistrate convicts the accused person, the

Defence Force magistrate must take action under Part IV in

relation to the convicted person.

(2) Before taking action under Part IV, the Defence Force magistrate

must hear any evidence relevant to the determination of the action

that should be taken.

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Division 3--Discontinuance of proceeding

31 General provisions

(1) If a superior authority has referred a charge or case to a Defence

Force magistrate under subclause 21(1) or (2) of this Schedule, the

superior authority must terminate the reference if:

(a) at a time before the Defence Force magistrate begins to try

the charge or hear the case, it appears to the superior

authority that, by reason of the exigencies of service, or for

any other reason, it is desirable to terminate the reference; or

(b) at a time after the Defence Force magistrate begins to try the

charge or hear the case:

(i) it appears to the Defence Force magistrate that it would

not be in the interests of justice for the Defence Force

magistrate to continue; and

(ii) the Defence Force magistrate directs the superior

authority to terminate the reference.

(2)

If:

(a) a superior authority has referred a charge or case to a

Defence Force magistrate under subclause 21(1) or (2) of this

Schedule; and

(b) at a time after the Defence Force magistrate begins to try the

charge or hear the case, the Defence Force magistrate is

unable to conclude the trial of the charge or the hearing of the

case because of death, illness, the exigencies of service or

other circumstances;

the superior authority must terminate the reference.

(3) If a superior authority terminates a reference of a charge under

subclause (1) or (2) at a time before the dismissal of the charge or

the acquittal or conviction of the accused person, the superior

authority must refer the charge to the Director of Military

Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103E.

(4)

If:

(a) a superior authority terminates a reference of a charge under

subclause (1) or (2) after an accused person has been

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convicted but before action has been taken under Part IV in

relation to the person; or

(b) a superior authority terminates a reference of a case under

subclause (1) or (2) before action has been taken under

Part IV in relation to a convicted person;

the Director of Military Prosecutions may direct the superior

authority:

take action under Part IV in relation to the person; or

(d) if the Director of Military Prosecutions considers that it

would be more appropriate for the matter to be dealt with by

a court martial--to convene a court martial to take action

under Part IV in relation to the person.

Note:

A charge or case referred to a Defence Force magistrate must be

referred to the Defence Force magistrate nominated by the Judge

Advocate General: see clause 22 of this Schedule.

(5) Before taking action in accordance with subclause (4), a court

martial or a Defence Force magistrate must hear any evidence

relevant to the determination of the action that should be taken.

(6) In this clause, a reference to a superior authority (the first superior

authority) includes a reference to any superior authority who

replaces the first superior authority.

32 Application for charge to be tried by the Military Court

(1) At any time before an accused person is asked to plead to a charge

(the first charge) at a trial by a Defence Force magistrate, the

accused person may apply for the reference of the first charge to

the Defence Force magistrate to be terminated on the ground that,

due to a change in circumstances, it would be possible for the

charge, and all other charges (if any) being dealt with together with

the first charge, to be tried by the Military Court.

(2)

If:

(a) the accused person makes an application under subclause (1);

and

(b) the Defence Force magistrate is satisfied that, due to the

change in circumstances, it would be possible for the charge

or charges to be tried by the Military Court;

Schedule 1 Amendment of the Defence Force Discipline Act 1982

Part 1 Main amendments

74 Military Court of Australia (Transitional Provisions and Consequential Amendments)

Bill 2012 No. , 2012

the Defence Force magistrate must grant the application and direct

the superior authority who referred each charge to the Defence

Force magistrate to terminate the reference.

(3) If a superior authority terminates a reference of a charge under

subclause (2), the superior authority must refer the charge to the

Director of Military Prosecutions.

Note:

The Director of Military Prosecutions may deal with the charge under

section 103E.

Part 3--Procedure for trials

Division 1--General

Note:

Commonwealth of Australia Bills

MILITARY COURT OF AUSTRALIA (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2012