MILITARY JUSTICE (INTERIM MEASURES) BILL (NO. 2) 2009

i Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

Contents

1 Short

title

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

2 Commencement

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

3 Schedule(s)

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

Schedule 1--Effect of things done by or in relation to the

Australian Military Court

Part 1--Preliminary

Part 2--Things done by the AMC, otherwise than on appeal

Part 3--Things done by the AMC on appeal

Part 4--Things done on appeal from the AMC

Part 5--Decisions of summary authorities made on basis

person did not elect to be tried by the AMC

Part 6--Other matters

Part 7--Transitional provisions

Division 1--Preliminary

Division 2--Things purportedly done by the AMC or on appeal from

the AMC

Division 3--Things done by summary authorities on basis no election

to be tried by the AMC

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 1

A Bill for an Act relating to military justice, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Military Justice (Interim Measures)

Act (No. 2) 2009.

2 Commencement

This Act commences on the day this Act receives the Royal

Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

Effect of things done by or in relation to the Australian Military Court Schedule 1

Preliminary Part 1

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 3

Schedule 1--Effect of things done by or in

relation to the Australian Military Court

Part 1--Preliminary

1 Definitions

In this Schedule:

AMC means the Australian Military Court purportedly established by

Division 3 of Part VII of the old Defence Force Discipline Act.

amended Defence Force Discipline Act means the Defence Force

Discipline Act 1982 as amended by the Military Justice (Interim

Measures) Act (No. 1) 2009.

commencement day means the day on which this Act commences.

DFDAT means the Defence Force Discipline Appeal Tribunal

established by the Defence Force Discipline Appeals Act 1955.

High Court decision date means 26 August 2009.

liability includes a duty or obligation.

old Defence Force Discipline Act means the Defence Force Discipline

Act 1982 as purportedly in force immediately before the High Court

decision date.

Part IV order means a restitution order or a reparation order

purportedly made under Part IV of the old Defence Force Discipline

Act.

right includes an interest or status.

2 Object and effect of Schedule etc.

(1)

The main object of this Schedule is to maintain the continuity of

discipline in the Defence Force.

(2)

The provisions of this Schedule that declare people to have particular

rights or liabilities have effect for Defence Force service purposes only.

(3)

If a provision of this Schedule:

(a) would, apart from this subitem, have an application (an

invalid application) in relation to:

(i) one or more particular persons, things, matters, places,

circumstances or cases; or

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 1 Preliminary

4 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

(ii) one or more classes (however defined or determined) of

persons, things, matters, places, circumstances or cases;

because of which the provision exceeds the Commonwealth's

legislative power; and

(b) also has at least one application (a valid application) in

relation to:

(i) one or more particular persons, things, matters, places,

circumstances or cases; or

(ii) one or more classes (however defined or determined) of

persons, things, matters, places, circumstances or cases;

that, if it were the provision's only application, would be

within the Commonwealth's legislative power;

it is the Parliament's intention that the provision is not to have the

invalid application, but is to have every valid application.

3 Reliance on, and enforcement of, declared rights etc.

(1)

This item applies if, under an item of this Schedule (the applicable

item), the rights and liabilities of a person are declared to be, and

always to have been, the same as if certain matters (the assumed

matters) specified in the applicable item had been the case.

(2)

Without limiting the effect of the applicable item:

(a) all persons are, by force of this item, declared to be, and

always to have been, entitled to act on the basis that other

persons had, and have, the rights and liabilities as declared by

the applicable item; and

(b) a right or liability that a person is declared to have by the

applicable item:

(i) is exercisable or enforceable; and

(ii) is to be regarded as always having been exercisable or

enforceable;

as if the assumed matters had in fact been the case.

(3)

This item has effect subject to subitem 2(2).

Effect of things done by or in relation to the Australian Military Court Schedule 1

Things done by the AMC, otherwise than on appeal Part 2

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 5

Part 2--Things done by the AMC, otherwise than on

appeal

4 Application of Part

This Part applies to things purportedly done by the AMC, otherwise

than under Part IX of the old Defence Force Discipline Act, before the

High Court decision date.

Note:

Part IX of the old Defence Force Discipline Act dealt with appeals to the AMC. Appeals

to the AMC are dealt with in Part 3 of this Schedule.

5 Effect of punishments and Part IV orders

(1)

This item applies if the AMC purported to:

(a) impose a punishment, other than imprisonment as mentioned

in paragraph 68(1)(a) or (b) of the old Defence Force

Discipline Act; or

(b) make a Part IV order.

(2)

The rights and liabilities of all persons are, by force of this item,

declared to be, and always to have been, the same as if:

(a) the amended Defence Force Discipline Act had been in force

on and after the time (the punishment time) when the

punishment or order was purportedly imposed or made; and

(b) the punishment or order had instead been properly imposed

or made at the punishment time, under that Act as so in force,

by a general court martial; and

so in force, immediately after the punishment time:

(i) a competent reviewing authority had reviewed the

punishment or order imposed or made by the general

court martial;

(ii) the reviewing authority had approved the punishment or

order, or had decided not to quash or revoke the

punishment or order;

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted; and

(d)

if:

(i) the punishment is detention or a fine; and

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 2 Things done by the AMC, otherwise than on appeal

6 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

(ii) the AMC also purported to make an order (the

suspension order) under section 78 or 79 of the old

Defence Force Discipline Act suspending the whole or

part of the punishment;

in addition to paragraphs (b) and (c) of this subitem, the

general court martial had, immediately after the punishment

time, made an order under section 78 or 79 of the amended

Defence Force Discipline Act as so in force in the same terms

as the suspension order.

(3)

If the punishment is dismissal, and the AMC purported, under

subsection 171(1B) of the old Defence Force Discipline Act, to order

that the dismissal was to take effect on a specified day, subitem (2)

applies as if the general court martial had made an order in the same

terms (and had power to make that order).

(4)

The rights and liabilities of persons as declared by this item are subject

to the outcome of any review provided for by Part 7 of this Schedule.

6 Persons not liable to be tried again under the amended

Defence Force Discipline Act

(1)

Subject to subitem (2), if the AMC purported to:

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

(b) convict a person of a service offence;

the person is not liable to be tried, under the amended Defence Force

Discipline Act, for the same offence or for an offence that is

substantially the same offence.

(2)

This item does not apply to a purported conviction:

(a)

if:

(i) a punishment or Part IV order was purportedly imposed

or made by the AMC in respect of the conviction; and

(ii) item 5 does not have effect, for any reason, in relation to

the purported punishment or order; or

(b) in relation to which the AMC had not, by the High Court

decision date, imposed a punishment or made an order under

Part IV of the old Defence Force Discipline Act.

(3)

For the purposes of this item, the purported dismissal of a charge under

section 132B or 132D of the old Defence Force Discipline Act is taken

Effect of things done by or in relation to the Australian Military Court Schedule 1

Things done by the AMC, otherwise than on appeal Part 2

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 7

to be a purported acquittal by the AMC of the service offence that was

the subject of the charge.

(4)

This item does not affect the jurisdiction of a civil court (as defined in

the amended Defence Force Discipline Act) to try a charge of a civil

court offence (as defined in that Act).

7 Effect of administrative actions taken in relation to person

purportedly convicted by the AMC

(1)

This item applies if (whether before, on or after the High Court decision

date) administrative action is or was purportedly taken in relation to a

person, for Defence Force service purposes, in reliance on, or by

reference to, a purported conviction by the AMC of a person of a

service offence.

(2)

For the purposes of subitem (1), administrative action includes (but is

not limited to) any of the following actions:

(a) placing a person on an unsuitability report;

(b) giving a person a formal warning;

(d) changing the employment category of a person;

(e) changing the employment entitlements of a person (including

forfeiture of salary or allowances);

(f) removing a security clearance, or changing the security

classification, of a person;

(g) denying or delaying the promotion of a person;

(h) revoking a provisional promotion of a person;

(i) removing a person from a posting, or changing the posting of

a person;

(j) removing a person from an appointment (including a position

of command or authority) associated with a posting, or

changing the appointment of the person;

(k) removing a person from a locality, or changing the locality of

the person;

(l) reducing the rank or seniority of a person;

(m) terminating the service of a person.

(3)

If this item applies, the administrative action is, by force of this item,

declared to be, and always to have been, entitled to be taken (and to

Effect of things done by or in relation to the Australian Military Court Schedule 1

Things done by the AMC on appeal Part 3

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 9

Part 3--Things done by the AMC on appeal

8 Application of Part

This Part applies to things purportedly done by the AMC, under Part IX

of the old Defence Force Discipline Act, before the High Court decision

date.

9 Quashing convictions

If the AMC purported to quash a conviction by a summary authority of

a person of a service offence, the rights and liabilities of all persons are,

by force of this item, declared to be, and always to have been, the same

as if:

(a) the amended Defence Force Discipline Act had been in force

on and after the time when the purported quashing occurred;

and

(b) the following were the case, under Part VIIIA of that Act as

so in force, immediately after that time:

(i) a competent reviewing authority had reviewed the

conviction;

(ii) the reviewing authority had quashed the conviction.

Note:

For what happens if the AMC purported to order a new trial, see item 27.

10 Varying or quashing punishments

(1)

If the AMC purported to vary a punishment imposed by a summary

authority, the rights and liabilities of all persons are, by force of this

item, declared to be, and always to have been, the same as if:

(a) the amended Defence Force Discipline Act had been in force

on and after the time when the purported variation occurred;

and

(b) the following were the case, under Part VIIIA of that Act as

so in force, immediately after that time:

(i) a competent reviewing authority had reviewed the

punishment;

(ii) the punishment, as purportedly varied, had been

imposed by the reviewing authority;

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted.

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 3 Things done by the AMC on appeal

10 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

(2)

If the AMC purported to:

(a) quash a punishment imposed by a summary authority; and

(b) take action (the substituted action) under Part IV of the old

Defence Force Discipline Act (as mentioned in paragraph

167(2)(b) of that Act);

the rights and liabilities of all persons are, by force of this item,

declared to be, and always to have been, the same as if:

on and after the time when the purported quashing occurred;

and

(d) the following were the case, under Part VIIIA of that Act as

so in force, immediately after that time:

(i) a competent reviewing authority had reviewed the

punishment;

(ii) the reviewing authority had quashed the punishment and

taken the substituted action;

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted.

(3)

The rights and liabilities of persons as declared by this item are subject

to the outcome of any review provided for by Part 7 of this Schedule.

11 Varying or revoking Part IV orders

(1)

If the AMC purported to vary a Part IV order made by a summary

authority, the rights and liabilities of all persons are, by force of this

item, declared to be, and always to have been, the same as if:

(a) the amended Defence Force Discipline Act had been in force

on and after the time when the purported variation occurred;

and

(b) the following were the case, under Part VIIIA of that Act as

so in force, immediately after that time:

(i) a competent reviewing authority had reviewed the

Part IV order;

(ii) the Part IV order, as purportedly varied, had been made

by the reviewing authority;

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted.

Effect of things done by or in relation to the Australian Military Court Schedule 1

Things done by the AMC on appeal Part 3

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 11

(2)

If the AMC purported to:

(a) revoke a Part IV order made by a summary authority; and

(b) take action (the substituted action) under Part IV of the old

Defence Force Discipline Act (as mentioned in paragraph

167A(2)(b) of that Act);

the rights and liabilities of all persons are, by force of this item,

declared to be, and always to have been, the same as if:

on and after the time when the purported revocation

occurred; and

(d) the following were the case, under Part VIIIA of that Act as

so in force, immediately after that time:

(i) a competent reviewing authority had reviewed the

Part IV order;

(ii) the reviewing authority had revoked the Part IV order

and taken the substituted action;

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted.

(3)

The rights and liabilities of persons as declared by this item are subject

to the outcome of any review provided for by Part 7 of this Schedule.

12 Dismissal of appeals and confirmation of punishments

etc.

(1)

If the AMC purported to dismiss an appeal against a conviction by a

summary authority of a person of a service offence, the rights and

liabilities of all persons are, by force of this item, declared to be, and

always to have been, the same as if:

(a) the amended Defence Force Discipline Act had been in force

on and after the time when the purported dismissal of the

appeal occurred; and

(b) the following were the case, under Part VIIIA of that Act as

so in force, immediately after that time:

(i) a competent reviewing authority had reviewed the

conviction;

(ii) the reviewing authority had decided not to quash the

conviction;

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 3 Things done by the AMC on appeal

12 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted.

(2)

If the AMC purported to confirm a punishment or Part IV order

imposed or made by a summary authority, the rights and liabilities of all

persons are, by force of this item, declared to be, and always to have

been, the same as if:

(a) the amended Defence Force Discipline Act had been in force

on and after the time when the purported confirmation of the

punishment or Part IV order occurred; and

(b) the following were the case, under Part VIIIA of that Act as

so in force, immediately after that time:

(i) a competent reviewing authority had reviewed the

punishment or Part IV order;

(ii) the reviewing authority had approved the punishment or

order, or had decided not to quash or revoke the

punishment or order;

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted.

(3)

The rights and liabilities of persons as declared by this item are subject

to the outcome of any review provided for by Part 7 of this Schedule.

Effect of things done by or in relation to the Australian Military Court Schedule 1

Things done on appeal from the AMC Part 4

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 13

Part 4--Things done on appeal from the AMC

13 Application of Part

This Part applies to things purportedly done by the DFDAT, under the

Defence Force Discipline Appeals Act 1955, before the High Court

decision date, on appeal from decisions of the AMC.

14 Effect of things done by the DFDAT on appeal

(1)

If the DFDAT purportedly quashed a conviction, punishment or order

purportedly imposed or made by the AMC, Part 2 of this Schedule

applies as if the AMC had not purported to impose or make that

conviction, punishment or order.

(2)

If the DFDAT purportedly varied a punishment or order purportedly

imposed or made by the AMC, Part 2 of this Schedule applies as if the

AMC had originally purported to impose or make the punishment or

order as so varied.

(3)

If the DFDAT purportedly confirmed a punishment or order purportedly

imposed or made by the AMC, Part 2 of this Schedule applies to the

punishment or order as purportedly imposed or made by the AMC.

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 5 Decisions of summary authorities made on basis person did not elect to be tried

by the AMC

14 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

Part 5--Decisions of summary authorities made on

basis person did not elect to be tried by the

AMC

15 Effect of punishment or Part IV order imposed or made by

summary authority

(1)

Subject to subitem (2), this item applies if:

(a) before the High Court decision date, a summary authority

purported to impose or make a punishment or Part IV order

(the original punishment or order) in respect of the

conviction of a person of a service offence in the following

circumstances:

(i) the person was required to be given the opportunity to

elect to have the charge of the service offence tried by

the AMC;

(ii) the summary authority proceeded with the trial of the

person on the basis that the person had not elected (or

had withdrawn an election) to have the charge tried by

the AMC; and

(b) a reviewing authority did not purport to quash or revoke the

original punishment or order (except as mentioned in

subitem (2)) before the High Court decision date; and

Part IX of the old Defence Force Discipline Act:

(i) quash the conviction;

(ii) quash, vary, revoke or confirm the original punishment

or order; and

(d) the original punishment or order is invalid because:

(i) the person was required to be given an opportunity to

elect to have the charge of the service offence tried by

the AMC; and

(ii) the AMC was not a validly created court.

Note:

If, before the High Court decision date, the AMC purported to quash the conviction, or

to quash, vary, revoke or confirm the original punishment or order, Part 3 of this

Schedule applies.

(2)

If, before the High Court decision date, a reviewing authority purported

to:

(a) quash or revoke the original punishment or order; and

Effect of things done by or in relation to the Australian Military Court Schedule 1

Decisions of summary authorities made on basis person did not elect to be tried by the

AMC Part 5

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 15

(b) take action (the substituted action) under Part VIIIA of the

old Defence Force Discipline Act (as mentioned in

subsection 159(2) of that Act);

this item applies as if the summary authority had taken the substituted

action, instead of imposing or making the punishment or Part IV order

referred to in paragraph (1)(a) of this item.

(3)

If this item applies, the rights and liabilities of all persons are, by force

of this item (subject to subitem (4)), declared to be, and always to have

been, the same as if:

(a) the amended Defence Force Discipline Act had been in force

on and after the time when the opportunity referred to in

paragraph (1)(a) was required to be given; and

(b) under that Act as so in force, the person:

(i) had been given an opportunity to make an election to

have the charge tried by a court martial or a Defence

Force magistrate; and

(ii) had not made such an election; and

imposed or made by the summary authority, under that Act as

so in force, at the time (the punishment time) when the

original punishment or order was purportedly imposed or

made; and

(d) the following were the case, under Part VIIIA of that Act as

so in force, immediately after the punishment time:

(i) a competent reviewing authority had reviewed the

punishment or order imposed or made by the summary

authority;

(ii) the reviewing authority had approved the punishment or

order, or had decided not to quash or revoke the

punishment or order;

(iii) any possibility of further review (other than review

provided for by Part 7 of this Schedule) had been

exhausted; and

(e)

if:

(i) the punishment is detention or a fine; and

(ii) the summary authority also purported to make an order

(the suspension order) under section 78 or 79 of the old

Defence Force Discipline Act suspending the whole or

part of the punishment;

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 5 Decisions of summary authorities made on basis person did not elect to be tried

by the AMC

16 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

in addition to paragraphs (c) and (d) of this subitem, the

summary authority had, immediately after the punishment

time, made an order under section 78 or 79 of the amended

Defence Force Discipline Act as so in force in the same terms

as the suspension order.

(4) If:

(a) the original punishment or order was a punishment of a kind

that, under section 172 of the old Defence Force Discipline

Act, did not take effect unless approved by a reviewing

authority; and

(b) the punishment had not been purportedly approved by a

reviewing authority before the High Court decision date;

subitem (3) of this item does not have effect in relation to the original

punishment or order unless it is approved under Part VIIIA of the

amended Defence Force Discipline Act.

Note:

Items 30 and 31 provide for Part VIIIA of the amended Defence Force Discipline Act to

apply.

(5)

The rights and liabilities of persons as declared by this item are subject

to the outcome of any review provided for by Part 7 of this Schedule.

16 Persons not liable to be tried again under the amended

Defence Force Discipline Act

(1)

Subject to subitem (2), this item applies if, before the High Court

decision date:

(a) a summary authority purported to try a person for a service

offence in the following circumstances:

(i) the person was required to be given the opportunity to

elect to have the charge of the service offence tried by

the AMC;

(ii) the summary authority proceeded with the trial of the

person on the basis that the person had not elected (or

had withdrawn an election) to have the charge tried by

the AMC; and

(b)

either:

(i) the summary authority purported to acquit the person; or

(ii) the summary authority purported to convict the person,

and the AMC did not purport to quash the conviction

Effect of things done by or in relation to the Australian Military Court Schedule 1

Decisions of summary authorities made on basis person did not elect to be tried by the

AMC Part 5

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 17

under Part IX of the old Defence Force Discipline Act;

and

(i) the person was required to be given an opportunity to

elect to have the charge of the service offence tried by

the AMC; and

(ii) the AMC was not a validly created court.

(2)

This item does not apply to a purported conviction:

(a)

if:

(i) a punishment or Part IV order was purportedly imposed

or made by the summary authority in respect of the

conviction; and

(ii) item 15 does not have effect, for any reason, in relation

to the purported punishment or order; or

(b) in relation to which the summary authority had not, by the

High Court decision date, imposed a punishment or made an

order under Part IV of the old Defence Force Discipline Act.

(3)

If this item applies, the person is not liable to be tried, under the

amended Defence Force Discipline Act, for the same offence or for an

offence that is substantially the same offence.

(4)

For the purposes of this item, the purported dismissal of a charge under

section 130 of the old Defence Force Discipline Act is taken to be a

purported acquittal by a summary authority of the service offence that

was the subject of the charge.

(5)

This item does not affect the jurisdiction of a civil court (as defined in

the amended Defence Force Discipline Act) to try a charge of a civil

court offence (as defined in that Act).

17 Effect of actions taken in relation to person purportedly

convicted by a summary authority

If, before the High Court decision date:

(a) a summary authority purported to try a person for a service

offence in the following circumstances:

(i) the person was required to be given the opportunity to

elect to have the charge of the service offence tried by

the AMC;

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 5 Decisions of summary authorities made on basis person did not elect to be tried

by the AMC

18 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

(ii) the summary authority proceeded with the trial of the

person on the basis that the person had not elected (or

had withdrawn an election) to have the charge tried by

the AMC; and

(b) the summary authority purported to convict the person of the

service offence; and

(i) the person was required to be given an opportunity to

elect to have the charge of the service offence tried by

the AMC; and

(ii) the AMC was not a validly created court;

then item 7 applies in relation to the purported conviction in the same

way as it applies in relation to a purported conviction by the AMC.

Effect of things done by or in relation to the Australian Military Court Schedule 1

Other matters Part 6

Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 19

Part 6--Other matters

18 Protection of members of military juries etc.

If, because the AMC was not a validly created court, section 193 of the

old Defence Force Discipline Act would not (apart from this item)

apply in relation to a person or act referred to in that section, that

section is taken to have had the effect it would have had, and to

continue to have the effect it would have, if it applied to that person or

act.

19 Contempt of the AMC etc.

(1)

If, because the AMC was not a validly created court, either of the

following provisions:

(a) section 53 of the old Defence Force Discipline Act;

(b) section 89 of the Defence Act 1903 as in force immediately

before the High Court decision date;

would not (apart from this item) apply to conduct that is or was engaged

in by a person, that section is taken to have had the effect it would have

had, and to continue to have the effect it would have, if it applied to that

conduct.

Note:

For example, a former member of a military jury may be liable to be prosecuted for an

offence if the member discloses information about the deliberations of the jury.

(2)

Without limiting the generality of subitem (1), that subitem applies to

conduct engaged in contrary to an order purportedly made by the AMC

(whether under section 140 of the old Defence Force Discipline Act or

otherwise):

(a) prohibiting or restricting the publication of a report of, or

relating to, the whole or a part of proceedings; or

(b) prohibiting or restricting the publication or disclosure of the

identity of a person, or of information that might enable the

identification of a person.

20 Effect of Summary Authority Rules

(1)

If the Summary Authority Rules are invalid because the AMC was not a

validly created court, those Rules are taken to have, and always to have

had, the effect they would have during the relevant period if they had

been valid.

(2)

In this item:

Schedule 1 Effect of things done by or in relation to the Australian Military Court

Part 6 Other matters

20 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

relevant period means the period:

(a) starting on 1 October 2007; and

(b) ending immediately before the commencement of the

Military Justice (Interim Measures) Act (No. 1) 2009.

Summary Authority Rules means the Summary Authority Rules, as

purportedly made, and from time to time amended, by the Chief

Military Judge of the AMC under section 149 of the old Defence Force

Discipline Act.

21 Effect of certificates issued by the AMC under section 128

of the Evidence Act 1995

If:

(a) before the High Court decision date, the AMC purportedly

caused a certificate under section 128 of the Evidence Act

1995 to be given to a person; and

(b) the certificate was not validly given because the AMC was

not a validly created court;

the certificate is taken always to have had the effect it would have had,

and to continue to have the effect it would have, if it had been validly

given.

22 Operation of the Privacy Act 1988

If conduct that is or was engaged in would (apart from this item)

contravene a provision of the Privacy Act 1988 because the AMC was

not a validly created court, the conduct is taken not to contravene, and

never to have contravened, that provision.

23 Regulations may deal with other matters

(1)

The Governor-General may make regulations dealing with the effect

and consequences, whether before, on or after the High Court decision

date, of any of the following:

(a) things purportedly done, before the High Court decision date,

by the AMC;

(b) things purportedly done, before the High Court decision date,

by a summary authority in election-system proceedings;

by a person or persons in, in relation to, or by reference to:

(i) the AMC; or

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(ii) without limiting subparagraph (i)--proceedings

purportedly before the AMC or orders or determinations

(however described) purportedly made by the AMC; or

(iii) a summary authority dealing with election-system

proceedings; or

(iv) without limiting subparagraph (iii)--orders or

determinations (however described) purportedly made

by a summary authority in election-system proceedings.

(2)

Without limiting subitem (1), the regulations may deal with the effect of

an order, purportedly made under subsection 176(1) or (2) of the old

Defence Force Discipline Act, staying the execution of a punishment.

(3)

For the purpose of this item, election-system proceedings are a trial (or

proceedings related to a trial) in the following circumstances:

(a) a person was required to be given an opportunity to elect to

have the charge of a service offence tried by the AMC;

(b) a summary authority purported to proceed with the trial of

the charge on the basis that the person had not elected (or had

withdrawn an election) to have the charge tried by the AMC.

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Part 7 Transitional provisions

22 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

Part 7--Transitional provisions

Division 1--Preliminary

24 Meaning of punishment review

(1)

For the purposes of this Part, a punishment review is a review of a

punishment or a Part IV order that is declared by a provision of Part 2,

3, 4 or 5 of this Schedule to be a liability of the person.

(2)

The provisions of Part VIIIA of the amended Act apply in relation to a

punishment review in the same way (as nearly as possible) as they

would apply in relation to:

(a) in a case to which a provision of Division 2 of this Part

applies--the review of proceedings of a general court martial

that imposed a punishment or made a Part IV order; or

(b) in a case to which a provision of Division 3 of this Part

applies--the review of proceedings of a summary authority

that imposed a punishment or made a Part IV order.

(3)

To avoid doubt, a punishment review may modify or affect a

punishment or Part IV order that is declared by a provision of Part 2, 3,

4 or 5 of this Schedule to be a liability of the person.

Division 2--Things purportedly done by the AMC or on

appeal from the AMC

25 Punishment or Part IV order imposed or made by AMC

(1)

This item applies in relation to a charge of a service offence against a

person if, on or before the High Court decision date, the AMC

purported to convict the person and:

(a) impose a punishment, other than imprisonment as mentioned

in paragraph 68(1)(a) or (b) of the old Defence Force

Discipline Act, in respect of the conviction; or

(b) make a Part IV order in respect of the conviction.

(2)

The person may lodge with a competent reviewing authority a petition,

for a punishment review, under section 153 of the amended Defence

Force Discipline Act.

Effect of things done by or in relation to the Australian Military Court Schedule 1

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(3)

The petition must be lodged within the period of 60 days beginning on

the commencement day, or within such extended period as the

competent reviewing authority allows.

Automatic review of punishments of detention

(4)

Without limiting the right to lodge a petition for a punishment review as

provided for by this item, if this item applies in relation to a punishment

of detention, a reviewing authority must as soon as practicable on or

after the commencement day, undertake a punishment review in relation

to that punishment.

26 Appeals on punishments and orders purportedly decided

by the AMC

(1)

This item applies in relation to an appeal purportedly made to the AMC

against a punishment imposed, or a Part IV order made, by a summary

authority in respect of a person's purported conviction by the summary

authority of a service offence if:

(a) the appeal was purportedly lodged on or before the High

Court decision date; and

(b) on or before that date, the AMC had purportedly:

(i) confirmed or varied the punishment, or taken action

under Part IV of the old Defence Force Discipline Act

(as mentioned in paragraph 167(2)(b) of that Act); or

(ii) confirmed or varied the Part IV order, or taken action

under Part IV of the old Defence Force Discipline Act

(as mentioned in paragraph 167A(2)(b) of that Act).

(2)

The person may lodge with a competent reviewing authority a petition,

for a punishment review, under section 153 of the amended Defence

Force Discipline Act.

(3)

The petition must be lodged within the period of 60 days beginning on

the commencement day, or within such extended period as the

competent reviewing authority allows.

Automatic review of punishments of detention

(4)

Without limiting the right to lodge a petition for a punishment review as

provided for by this item, if this item applies in relation to a punishment

of detention, a reviewing authority must as soon as practicable on or

Schedule 1 Effect of things done by or in relation to the Australian Military Court

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24 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

after the commencement day, undertake a punishment review in relation

to that punishment.

27 Appeals to the AMC on convictions--purported order for a

new trial

(1)

This item applies in relation to an appeal purportedly made to the AMC

against a person's conviction by a summary authority for a service

offence if:

(a) the appeal was purportedly lodged on or before the High

Court decision date; and

(b) on or before that date, the AMC had purportedly quashed the

conviction and ordered a new trial.

(2)

The charge is taken to be referred to the Director of Military

Prosecutions on the commencement day, and the Director of Military

Prosecutions may deal with the charge under section 103 of the

amended Defence Force Discipline Act.

(3)

To avoid doubt, the person is not deemed to have been acquitted of the

offence under section 159 of the amended Defence Force Discipline

Act.

28 Appeals to the DFDAT from purported AMC decisions--

finalised appeals

(1)

This item applies if:

(a) before the High Court decision date, a person purported to

appeal to the DFDAT against a punishment purportedly

imposed or a Part IV order purportedly made by the AMC;

and

(b) on or before that date, the DFDAT had purportedly

confirmed or varied the punishment or Part IV order.

(2)

The person may lodge with a competent reviewing authority a petition,

for a punishment review, under section 153 of the amended Defence

Force Discipline Act.

(3)

The petition must be lodged within the period of 60 days beginning on

the commencement day, or within such extended period as the

competent reviewing authority allows.

Effect of things done by or in relation to the Australian Military Court Schedule 1

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Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 25

Automatic review of punishments of detention

(4)

Without limiting the right to lodge a petition for a punishment review as

provided for by this item, if this item applies in relation to a punishment

of detention, a reviewing authority must, as soon as practicable on or

after the commencement day, undertake a punishment review in relation

to that punishment.

Division 3--Things done by summary authorities on

basis no election to be tried by the AMC

29 Application of Division

This Division applies in relation to the charge of a service offence

against a person if, before the commencement day:

(a) the person was required to be given an opportunity to elect to

have the charge tried by the AMC; and

(b) a summary authority proceeded with the trial of the charge on

the basis that the person had not elected (or had withdrawn an

election) to have the charge tried by the AMC.

30 Summary authority proceedings started but not

completed before commencement day

(1)

This item applies if:

(a) before the commencement day, the summary authority had

commenced dealing with the charge; and

(b) on or before the commencement day:

(i) the proceedings of the summary authority had not been

completed; or

(ii) the proceedings of the summary authority had been

completed, but no action had been taken by a reviewing

authority under Part VIIIA of the old Defence Force

Discipline Act in relation to the proceedings of the

summary authority.

(2)

If the proceedings of the summary authority had not been completed on

or before the commencement day, the proceedings of the summary

authority are to continue under the amended Defence Force Discipline

Act.

(3) If:

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26 Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009

(a) the proceedings of the summary authority had been

completed on or before the commencement day; and

(b) the summary authority:

(i) imposed, or purported to impose, a punishment on the

person; or

(ii) made, or purported to make, a Part IV order in relation

to the person;

a reviewing authority must, as soon as reasonably practicable on or after

the commencement day, undertake a review of the punishment or order

under Part VIIIA of the amended Defence Force Discipline Act.

31 Summary authority proceedings completed before

commencement day: review proceedings started but

not completed

(1)

This item applies if, on or before the commencement day:

(a) the summary authority:

(i) imposed, or purported to impose, a punishment on the

person; or

(ii) made, or purported to make, a Part IV order in relation

to the person; and

(b) action had commenced in relation to the proceedings of the

summary authority by a reviewing authority under Part VIIIA

of the old Defence Force Discipline Act, but review under

that Part had not been completed.

(2)

A reviewing authority must, as soon as reasonably practicable on or

after the commencement day, complete the review under Part VIIIA of

the amended Defence Force Discipline Act.

32 Summary authority proceedings completed before

commencement day: punishments or Part IV orders to

which item 15 applies

(1)

This item applies if:

(a) before the commencement day, the summary authority:

(i) purported to impose a punishment on the person; or

(ii) purported to make a Part IV order in relation to the

person; and

(b) item 15 applies in relation to the punishment or order.

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Military Justice (Interim Measures) Bill (No. 2) 2009 No. , 2009 27

Note:

Item 15 applies if the punishment or order is invalid because the AMC was not a validly

created court.

(2)

The person may lodge with a competent reviewing authority a petition,

for a punishment review, under section 153 of the amended Defence

Force Discipline Act.

(3)

The petition must be lodged within the period of 60 days beginning on

the commencement day, or within such extended period as the

competent reviewing authority allows.

Automatic review of punishments of detention

(4)

Without limiting the right to lodge a petition for a punishment review as

provided for by this item, if this item applies in relation to a punishment

of detention, a reviewing authority must, as soon as practicable on or

after the commencement day, undertake a punishment review in relation

to the detention punishment.

Commonwealth of Australia Bills

MILITARY JUSTICE (INTERIM MEASURES) BILL (NO. 2) 2009