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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MILITARY COURT OF AUSTRALIA (TRANSITIONAL PROVISIONS AND
CONSEQUENTIAL AMENDMENTS) BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Nicola Roxon MP)
Glossary
In this Explanatory Memorandum, the following acronyms and terms are used.
ADF Australian Defence Force
CDF Chief of the Defence Force
CDPP Commonwealth Director of Public Prosecutions
DDCS Director of Defence Counsel Services
DFDAT Defence Force Discipline Appeals Tribunal
DMP Director of Military Prosecutions
RMJ Registrar of Military Justice
Military Court Military Court of Australia
MILITARY COURT OF AUSTRALIA (TRANSITIONAL PROVISIONS AND
CONSEQUENTIAL AMENDMENTS) BILL 2012
GENERAL OUTLINE
1. The Bill makes amendments to the Defence Force Discipline Act 1982 and
other legislation, consequential to the establishment of a new Military Court of
Australia (Military Court) under Chapter III of the Constitution. The new Military
Court will try serious service offences committed by Australian Defence Force (ADF)
personnel. The vast majority of service offences, which are less serious in nature, will
continue to be heard by summary authorities, as was the case under the Australian
Military Court (in 2007-2009) and the interim courts martial and Defence Force
magistrate system.
2. The Bill also provides for the transition to the new Military Court system from
the interim measures in the Military Justice (Interim Measures) Act (No. 1) 2009,
which re-established the pre-2007 system of courts martial and Defence Force
magistrates. Those temporary arrangements were put in place after the provisions in
the Defence Force Discipline Act 1982 establishing the Australian Military Court,
which commenced hearing matters on 10 October 2007, were held to be invalid by the
High Court in Lane v Morrison [2009] HCA 29 on 26 August 2009.
3. This Bill further includes other measures to enhance the ADF military
discipline system. It also includes transitional and savings provisions in relation to
proceedings that will not be finalised prior to the commencement of the Military
Court `start day' (Military Court commencing to hear matters).
Abolition of the Defence Force Discipline Appeals Tribunal
4. The Bill abolishes the Defence Force Discipline Appeals Tribunal (DFDAT).
The DFDAT was established under the Defence Force Discipline Appeals Act 1955,
and has jurisdiction to hear appeals from courts martial and Defence Force
magistrates and previously, the Australian Military Court. However, as a non-judicial
body, it is not constitutionally able to review the decisions of a Chapter III court. The
jurisdiction of the DFDAT will be absorbed by the Military Court, which will have
jurisdiction to hear appeals from judgments of the Military Court at first instance as
well as appeals from courts martial and Defence Force magistrates (where they are
used in the new system). The DFDAT will be abolished once its jurisdiction to hear
appeals under the current system is exhausted.
Residual court martial and Defence Force magistrates system
5. Courts martial and Defence Force magistrates will be retained as a residual or
backup system, and used in rare instances where the Military Court determines that it
is necessary, but not possible, for the Military Court to conduct a trial overseas. The
Bill moves the provisions which relate only to courts martial and Defence Force
magistrate trials in the Defence Force Discipline Act 1982 to a new Schedule 3B of
that Act. This reflects the restricted operation of courts martial and Defence Force
magistrates under the new military justice system. Provisions relating generally to
service tribunals (courts martial, Defence Force magistrates and summary authorities)
are retained in the body of the Defence Force Discipline Act 1982. Schedule 3B will
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also include provisions for appeals to be brought from a decision of a court martial or
Defence Force magistrate to the Military Court.
Internal review
6. The current review mechanisms for convictions and punishments imposed by
service tribunals (summary authorities, courts martial and Defence Force magistrates)
will be maintained. This includes an automatic review by a reviewing authority, a
petition to a reviewing authority and a further review by the Chief of the Defence
Force (CDF) or a Service Chief.
7. However, where there is an appeal to the Military Court from a decision of a
court martial or Defence Force magistrate under Schedule 3B, then the review process
will be discontinued.
Right to elect
8. There will be no appeal rights from a decision of a summary authority to the
Military Court. Instead, ADF members charged with a service offence which would
otherwise be tried by a summary authority may elect to be tried, instead, by the
Military Court. This election becomes available from the moment the ADF member
is charged until they have entered a plea at trial. Currently, ADF members charged
with a less serious service offence for trial by a summary authority do not have a right
to elect to be tried by a court martial or Defence Force magistrate on every charge.
Status and character of service offences
9. The Bill amends the Defence Force Discipline Act 1982 to clarify the status
and character of service offences as an offence against a law of the Commonwealth.
Convictions for service offences by a summary authority continue to be for service
purposes only. However, convictions for service offences by the Military Court or the
residual court martial or Defence Force magistrate must be disclosed as an offence
against a law of the Commonwealth, if required under legislation. As a result, a
person will be required to disclose convictions for service offences by the Military
Court or the residual court martial or Defence Force magistrate when a law requires
disclosure of convictions against a law of the Commonwealth. In these instances,
they will disclose that the conviction was for a service offence. A service chief or an
authorised officer may also disclose the fact that a person has been convicted of a
service offence, and information relating to the conviction, to a Commonwealth, State
or Territory authority for purposes connected with investigating, prosecuting or
keeping records in relation to offences against laws of the Commonwealth, the State
or the Territory. The exception to this is offences under Schedule 7, which are purely
service in nature and have no civilian criminal equivalents. Convictions for these
offences will be reportable for service purposes only.
10. As service offences are classified as offences against a law of the
Commonwealth, the spent conviction scheme applies. Therefore, a person who has
been convicted of a service offence is not required to disclose the conviction if the
conviction is spent within the meaning of Part VIIC of the Crimes Act 1914.
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Mental impairment
11. The Bill modernises the existing antiquated provisions dealing with persons
found unfit for trial or persons acquitted on the basis of mental impairment at the time
of committing the offence. The existing provisions require a person to be kept in
strict custody until the pleasure of the Governor-General is known. Under the new
regime, persons found unfit for trial or acquitted on the basis of mental impairment at
the time of committing the offence will be dealt with similarly to those in the
Commonwealth civilian criminal justice system. The regime adopts the definition of
`mental impairment' in the Criminal Code. The procedures and powers applying to
summary authorities, courts martial, and Defence Force magistrates will be broadly
aligned to those applying in the Military Court, taking into account the ad hoc nature
of service tribunals and summary authority trials.
Abolition of positions of Registrar of Military Justice and Chief Judge Advocate
12. The Bill abolishes the statutory positions of Registrar of Military Justice
(RMJ) and Chief Judge Advocate. Both positions support courts martial and Defence
Force magistrates. In the current system, the RMJ has a range of responsibilities
including convening courts martial and referring charges to Defence Force
magistrates. The Chief Judge Advocate's role is to provide administrative assistance
to the Judge Advocate General, whose primary role relates to courts martial and
Defence Force magistrate trials.
13. As the Military Court will hear most trials for serious service offences, and
courts martial and Defence Force magistrate trials will be rare in the new system,
retaining these statutory positions is not justified. Instead the Bill confers additional
responsibilities on other persons, for example superior authorities, to support courts
martial and Defence Force magistrate trials when they do occur.
Removal of references to old system offences
14. The Defence Force Discipline Act 1982 currently refers to `old system
offences'. This term refers to offences under single Service (Navy, Army and Air
Force) legislation, repealed when the Defence Force Discipline Act 1982 commenced.
References to `old system offences' were included in the Defence Force Discipline
Act 1982 at that time as a transitional measure. The Bill removes references to `old
system offences' in the Defence Force Discipline Act 1982 because an act or omission
which might constitute an `old system offence' can no longer be tried under the
Defence Force Discipline Act 1982 due to statutory time limits within which a
prosecution must be commenced having now expired.
Interaction with the civilian criminal law
15. Section 63 of the Defence Force Discipline Act 1982 will continue to require
the Director of Military Prosecutions (DMP) to obtain the consent of the
Commonwealth Director of Public Prosecutions (CDPP) prior to prosecuting certain
serious service offences with criminal law equivalents (such as murder, rape, assault)
committed in Australia. The Memorandum of Understanding between the Australian
Directors of Public Prosecutions and Director of Military Prosecutions is the
cooperative arrangement which operationalises the section 63 statutory requirement
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for CDPP consent and facilitates cooperation and consultation between the Australian
Directors of Public Prosecutions and the DMP, particularly where the military
discipline and criminal law jurisdictions overlap. The Memorandum of
Understanding will continue to operate.
Director of Military Prosecutions
16. The DMP will continue to exist as a separate statutory office under the new
military justice system. The DMP will be responsible for prosecuting charges in the
Military Court. Charges may be referred to the DMP in three principal ways:
· Election by the accused at a summary level
· Referral of charges to the DMP by a summary authority during the dealing or
trial phase of the summary hearing, or
· Referral of charges to the DMP by the Australian Defence Force Investigative
Service or a summary authority before the dealing phase of the summary
hearing, due to the offence being a serious service offence, as defined in
subsection 3(1) of the Defence Force Discipline Act 1982.
17. Where the Military Court determines it is necessary, but not possible, for it to
conduct a trial overseas, the DMP will be able to have the charges dealt with under
the Defence Force Discipline Act 1982. The new Schedule 3B of the Defence Force
Discipline Act 1982 will allow the DMP to prosecute the charges in the residual court
martial and Defence Force magistrate system.
Director of Defence Counsel Services
18. The Defence Act 1903 will be amended to afford statutory recognition to the
Office of the Director of Defence Counsel Services (DDCS). Amendment to the
Defence Act 1903 will also provide for the functions and responsibilities of DDCS
with respect to ADF discipline and Commission of Inquiry roles. These amendments
would implement recommendations 18 and 19 of The Report of the Independent
Review on the Health of the Reformed Military Justice System by the Honourable Sir
Laurence Street AC KCMG QC and Air Marshal Les Fisher AO FRAeS MAP (Rtd),
dated 23 January 2009.
FINANCIAL IMPACT STATEMENT
19. These amendments will require a reallocation of funding from within existing
resources and are otherwise cost neutral.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
20. This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
21. The purpose of Australia's military justice system is to support command in
reinforcing discipline and enhancing operational effectiveness. Military discipline
which supports the authority and effectiveness of commanders is of vital importance
in the operation of the ADF.
22. The Bill operates in conjunction with the Military Court of Australia Bill
2012, which establishes the Military Court of Australia under Chapter III of the
Constitution.
23. This Bill makes amendments to the Defence Force Discipline Act 1982 and
other Acts consequential to establishment of the Military Court. These amendments
include retaining courts martial and Defence Force magistrates where the Military
Court determines that it is necessary, but not possible, for the Military Court to
conduct a trial overseas.
24. The Bill also provides for the transition to the new Military Court system from
the interim measures in the Military Justice (Interim Measures) Act (No. 1) 2009,
which re-established the pre-2007 system of hearings by courts martial and Defence
Force magistrates. It also includes other measures to enhance the Australian Defence
Force military discipline system.
Human Rights Implications
25. This Bill engages the following rights:
· the right to a fair trial under Article 14 of the International Covenant on Civil
and Political Rights (`ICCPR'). Although the trial of service offences is not
criminal proceedings as such, this Statement includes assessment as if
requirements under Article 14 relating to criminal proceedings have been
engaged. It includes consideration of access for justice for persons with
disabilities under Article 13 of the Convention on the Rights of Persons with
Disabilities (`CRPD')
· freedom from arbitrary detention under Article 9 of the ICCPR and Article 14
of the Convention on the Rights of Persons with Disabilities (CRPD)
· the right to humane treatment in detention under Article 10 of the ICCPR, and
· the right to privacy under Article 17 of the ICCPR.
Right to a fair trial
Fair and public hearing by a competent, independent and impartial tribunal
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26. Article 14(1) of the ICCPR provides for the right to a fair and public hearing
by a competent, independent and impartial tribunal in the determination of any
criminal charge against a person, or of a person's rights and obligations in a suit at
law.
27. The Defence Force Discipline Act 1982 creates service offences for the
purpose of maintaining discipline in the Australian Defence Force. The Defence
Force Discipline Act 1982 complements, and does not replace, Australian criminal
law. This right is engaged because serious service offences will be an offence against
the law of the Commonwealth and conviction may attract punishments including
imprisonment or military detention.
Residual court martial and Defence Force magistrate system
28. The Military Court established by the Military Court of Australia Bill 2012
will replace the system of hearing by courts martial and Defence Force magistrates in
the military justice system. However, the system of courts martial and Defence Force
magistrates will be retained as a residual or backup system where the Military Court
determines that it is necessary, but not possible, for the Military Court to conduct a
trial overseas. This is not expected to occur frequently. The Bill moves the
provisions which relate only to courts martial and Defence Force magistrate trials in
the Defence Force Discipline Act 1982 to a new Schedule 3B of that Act. This is to
reflect the restricted operation of courts martial and Defence Force magistrates under
the new military justice system.
29. Courts martial and Defence Force magistrates operate within the military
chain of command and are not fully independent of the ADF. Judge advocates are
appointed by the Chief of Defence Force (CDF) or a Service Chief, on the nomination
of the Judge Advocate General (who must be a current or former Justice of a federal
court or State or Territory Supreme Court), and Defence Force magistrates are
appointed from judge advocates by the Judge Advocate General. This may limit the
right of persons to have charges of service offences heard by an independent and
impartial tribunal.
30. However, given the highly confined circumstance in which a court martial
would operate, these limits are reasonable, necessary and proportionate. The Military
Court will have jurisdiction to try serious service offences, and will be able to sit
overseas. Courts martial or Defence Force magistrates will only be used where the
Military Court determines that it is necessary, but not possible, for the Military Court
to conduct a trial overseas. It is necessary to have an alternative means to handle
cases where this occurs.
31. The Bill includes safeguards for the right to a fair trial where a court martial or
Defence Force magistrate is required to hear charges of service offences. New
Schedule 3B provides for the convening of a court martial or reference to a Defence
Force magistrate where required in certain cases, and provides for the conduct of and
procedure for a trial. It requires the accused to be notified of the convening of a court
martial or reference to a Defence Force magistrate. An accused will know details of
the charges they face and the prosecution case.
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32. The Bill requires a court martial or Defence Force magistrate to conduct its
proceedings in public. Courts martial or Defence Force magistrates will have the
power to exclude the public (or specified persons) if it is considered necessary in the
interests of the security or defence of Australia, the proper administration of justice or
public morals. Any such determination by a court martial or Defence Force
magistrate to conduct proceedings in private or make orders for non-publication of
proceedings will occur based on the individual circumstances of each case. The Bill
provides for membership of a court martial, including eligibility requirements for rank
and seniority and restrictions to ensure that members are not biased.
Summary authorities
33. Summary authorities operate within the military chain of command and are
not independent of the ADF. Summary authorities will be retained under the Defence
Force Discipline Act 1982. The vast majority of service offences, which are less
serious in nature, will continue to be heard by summary authorities, as has been the
case since the enactment of the Defence Force Discipline Act 1982.
34. Convictions for service offences by a summary authority continue to be for
service purposes only. It is appropriate that these continue to be enforced within the
military chain of command. Under the Defence Force Discipline Act 1982, a person
has the opportunity to enter pleas of guilty or not guilty, and the summary authority
can hear evidence.
35. The Bill provides for a right of election for trial in the Military Court of
Australia to all accused people facing a charge of a service offence. This enables a
person to have charges of service offences heard by an independent and impartial
tribunal. Under the Military Court of Australia Bill, the Military Court of Australia
will be established as a permanent Court in accordance with Chapter III of the
Constitution. The Military Court of Australia Bill provides the necessary
independence and constitutional protections for an impartial judiciary in the Military
Court.
Presumption of Innocence
36. Article 14(2) of the ICCPR provides every individual charged with a criminal
offence the right to be presumed innocent until proved guilty according to law.
37. Notwithstanding that service offences are not criminal offences, the Bill
promotes the presumption of innocence by adopting the criminal standard of proof
under the Criminal Code Act 1995 in relation to proceedings before a court martial or
Defence Force magistrate.
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Minimum guarantees in criminal proceedings
38. Article 14(3) of the ICCPR provides for minimum guarantees in criminal
proceedings. Notwithstanding that service offences are not criminal offences, if a
court martial or Defence Force magistrate is needed, they will operate consistently
with the minimum guarantees outlined in Article 14(3).
39. The Bill requires that an accused is notified of the charge and provides for the
accused to be present and legally represented. There is opportunity for a person in
custody to request assistance from an ADF legal officer, and for an accused to be
provided free representation by a legal officer.
40. The Bill sets out the process for requesting a plea from the accused person to
the charge and outlines what the court martial or Defence Force magistrate must do
based on the plea. The judge advocate must ask the accused person whether they
plead guilty or not guilty before the court martial or Defence Force magistrate begins
to hear the evidence on the charge (with procedures in place for both options).
41. The Bill provides that the rules of evidence which apply to a court martial and
Defence Force magistrate are the same as those which apply to the Military Court.
The Evidence Act 1995 provides for the privilege against self-incrimination.
42. The Bill requires the court martial or Defence Force magistrate to convict an
accused upon a finding that the accused person is guilty, and acquit an accused person
upon a finding that the accused person is not guilty.
Right of review
43. Article 14(5) of the ICCPR provides that everyone convicted of a crime shall
have the right to his conviction and sentence being reviewed by a higher tribunal
according to law.
44. Under the Defence Force Discipline Act 1982, decisions of service tribunals
(court martial, Defence Force magistrate or summary authority) are subject to review.
A person may also petition for review on specific grounds to a reviewing authority (a
senior defence officer) or petition the Chief of Defence Force. These rights will be
retained in the new military justice system where appropriate.
45. Appeals from the decisions of a court martial or Defence Force magistrate lie
to the Military Court.
Punishment following conviction
46. The Bill provides for imprisonment or detention as a punishment for
conviction of a service offence by a service tribunal. Service tribunals may award
punishments of imprisonment or detention of persons as specified in the Defence
Force Discipline Act 1982. The Bill specifies levels of punishments that may be
awarded by a summary authority.
47. Consistently with Article 9(4) of the ICCPR, the Military Court will have
jurisdiction to hear and determine appeals from certain determinations and orders of a
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court martial or a Defence Force magistrate, including from a convicted person in
relation to the punishment imposed.
48. Article 13 of the CPRD requires State parties to ensure effective access to
justice for persons with disabilities on an equal basis with others, including through
the provision of procedural and age-appropriate accommodations, in order to facilitate
their effective role as direct and indirect participants, including as witnesses, in all
legal proceedings, including at investigative and other preliminary stages.
49. Where it appears to a summary authority, court martial or Defence Force
magistrate that a person is unfit to stand trial the charge against the person is to be
referred to the DMP, who can then decide whether to bring proceedings. If
proceedings are to be brought, these would be brought before the Military Court.
50. In a trial by summary authority, where evidence is adduced of mental
impairment at the time of the offence, a summary authority will be required to refer
the charge to the DMP who can then decide whether to bring proceedings in the
Military Court. The DMP will continue to exist as a separate statutory office under
the new military justice system.
51. The Bill provides for the powers of the court martial or Defence Force
magistrate, which will be largely the same as the powers of the Military Court and
broadly based on Division 8 of Part IB of the Crimes Act 1914. The orders that a
court martial or Defence Force magistrate may make are to either:
· release the person, or release the person subject to certain conditions (such as
that a person attend a person or place for treatment), or
· make another other order it considers necessary having regard to the best
interests of the accused person, the safety of any other person to whom the
order relates and the safety of the community generally
52. The Bill requires that any such orders be for a specified period not exceeding
three years.
53. An order should not be made for imprisonment of a person under these
provisions. Appropriate arrangements would be made for person to be taken to a
mental institution where necessary. In making an order, a court martial or Defence
Force magistrates will be able to hear evidence of expert witnesses. For example, a
psychiatrist may be called to give evidence relating to the best interests of an accused
person. An application to vary or set aside an order of a court martial or DFM under
these provisions would be made to a service chief if the prescribed acquitted person is
a defence member at the time of the application, or to the Attorney-General in any
other case.
54. If a reviewing authority quashes a conviction of a person and acquits the
person on the basis of mental impairment at the time of the offence, then the
reviewing authority will be empowered to deal with the person in the same way as a
court martial or Defence Force magistrate.
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Freedom from arbitrary detention
55. Article 9(1) of the ICCPR provides that everyone has the right to liberty and
security of person. No one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.
56. Arbitrary is interpreted broadly to include elements of inappropriateness,
injustice and lack of predictability.
57. The Bill allows for deprivation of liberty of a person in the course of arrest
and proceedings before service tribunals.
Arrest procedures
58. Under the Defence Force Discipline Act 1982, a person will be taken into
custody following arrest. The Defence Force Discipline Act 1982 currently provides
procedures to ensure charges are laid and proceedings are brought promptly following
the arrest of a person under the Act, including reporting requirements.
59. The Bill will strengthen current procedures to ensure as far as possible that
detention will not be arbitrary and that a person will be brought before a tribunal
within a reasonable period. The Bill will require the CDF, a service chief or an
authorised officer to be notified where a person has been in custody for 30 days and
proceedings have not been commenced, including reasons for delay in
commencement.
60. Upon receipt of this notification, the CDF, the service chief or the authorised
officer must order the release of the accused person from custody unless this is not
reasonably practicable due to the exigencies of service.
61. These requirements will be extended to apply for each period of 30 days in
which the person remains in custody.
Release from custody in the course of proceedings
62. Section 97 of the Defence Force Discipline Act 1982 currently provides that a
person charged with a service offence may be released from custody at any time by a
commanding officer, who may impose conditions or restrictions of a kind authorised
by the CDF or a service chief, by instrument in writing. This will occur based on the
individual circumstances of each case, and can be reconsidered during the course of
proceedings before a court martial or Defence Force magistrate.
63. Under this Bill, the same provisions for bail as the Military Court will apply
where a person appeals to the Military Court from a court martial or Defence Force
magistrate.
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Right to humane treatment in detention
64. Article 10 of the ICCPR provides the right to humane treatment for individuals
deprived of their liberty.
65. Persons sentenced to detention will be treated humanely in accordance with
the existing provisions of the Defence Force Discipline Act 1982 and the Defence
Force Discipline Regulations 1985.
66. Imprisonment would be in a civilian prison, similar to the civilian criminal
justice system.
67. The Military Court may also impose a punishment of detention in a military
detention facility. Military detention is designed to enforce discipline and is provided
in accordance with Part XA of the Defence Force Discipline Act 1982. Under the
Defence Force Discipline Regulations 1985, detention facilities must be approved by
service chiefs on an annual basis. Inspections occur regularly for facilities. The
Defence Force Discipline Regulations 1985 include access to medical assistance.
Right to privacy
68. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an
individual's privacy, family, home or correspondence, and protects a person's honour
and reputation from unlawful attacks. The right to privacy may be subject to
permissible limitations, provided that those limitations are aimed at a legitimate
objective and are reasonable, necessary and proportionate to that objective.
69. The Bill requires court martial and Defence Force magistrate proceedings to
be in public. The open court process is a key component of the right to a fair trial and
aims to demonstrate that proceedings have been conducted fairly and that accused
persons have been dealt with justly.
70. The legitimate objective of ensuring an open court process may limit the right
to privacy of individuals who are involved in proceedings before a court martial or
Defence Force magistrate, however, the limitations are reasonable, necessary and
proportionate. Courts martial and Defence Force magistrates remain subject to the
Privacy Act 1988, which includes requirements for collection and storage of personal
information.
71. The rules of evidence applicable to proceedings before a court martial or
Defence Force magistrate will be the rules of evidence that apply in relation to
proceedings before the Military Court. This provides for appropriate protection of
witnesses.
Conclusion
72. The Bill is compatible with human rights because it advances the protection of
human rights, in particular for freedom from arbitrary detention and the right to
privacy.
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73. To the extent that it may also limit human rights, particularly the right to
hearing by an independent and impartial tribunal, freedom from arbitrary detention
and aspects of the right to privacy, those limitations are reasonable, necessary and
proportionate.
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NOTES ON CLAUSES
Clause 1 - Short title
74. This clause provides the short title of the Act to be the Military Court of
Australia (Transitional Provisions and Consequential Amendments) Act 2012.
Clause 2 - Commencement
75. This clause provides for the commencement of each provision in the Bill, as
set out in the table. Item 1 in the table provides that sections 1 to 3, which concern
the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by
the table, will commence on the day on which the Bill receives Royal Assent.
76. Items 2, 5, 7, 9, 11, 13, 15, 17, 19, 22, 28 and 29 in the table provide that the
consequential amendments that relate to the exercise of the Military Court's
jurisdiction will commence on the Military Court `start day'. This day is when the
Military Court begins exercising its jurisdiction and is to be fixed by Proclamation no
later than ten months after the Bill receives the Royal Assent.
77. A period of ten months is provided to allow sufficient time to prepare for the
Military Court to commence exercising its jurisdiction. This includes the appointment
of judicial officers to the Military Court, implementation of administrative
arrangements for proceedings in the Military Court (including the establishment of
Military Court Rules), and to allow the Department of Defence to educate military
personnel about the role of the Military Court of Australia in the military justice
system and their rights in relation to the new Court.
78. Item 3 in the table provides that Part 2 of Schedule 1 commences on the 28th
day after the Bill receives Royal Assent. Part 2 of Schedule 1 contains amendments
to offence provisions under the Defence Force Discipline Act 1982. These
amendments are not dependent on the Military Court commencing its jurisdiction to
be effective, and therefore can commence on the usual 28 days after the Bill receives
Royal Assent (see subsection 5(1A) of the Acts Interpretation Act 1901). Item 30
provides that Item 34 of Schedule 5 also commences on the 28th day after the Bill
receives Royal Assent. Item 34 of Schedule 5 applies the amendments of Part 2 of
Schedule 1 to acts or omissions that take place after commencement of that Part, and
it is therefore appropriate for this provision to commence on the same day.
79. Items 4 and 23 in the table provide that amendments which repeal references
to the Evidence and Procedure (New Zealand) Act 1994 in the Defence Force
Discipline Act 1982 and Military Court of Australia Act 2012 commence either
immediately after the Military Court begins exercising its jurisdiction or after the
repeal of the Evidence and Procedure (New Zealand) Act 1994, whichever occurs
later. However, the provisions do not commence at all if the Evidence and Procedure
(New Zealand) Act 1994 is not repealed.
80. Items 6, 8, 10, 12, 14, 16, 20, and 31 in the table provides that consequential
amendments that relate to the creation of the Military Court and its judicial officers
will all commence at the same time as section 3 of the Military Court Act commences.
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81. Item 18 provides that consequential amendments relating to Federal
Magistrates of the Military Court commence at the same time as section 3 of the
Military Court Act commences.
82. Item 23 in the table provides that item 47 in Schedule 3 of the Bill commences
immediately after the Military Court begins exercising jurisdiction and after the
commencement of section 109 of the Trans-Tasman Proceedings Act 2010
(whichever occurs later). Item 47 in Schedule 3 amends section 109 of the
Trans-Tasman Proceedings Act 2010 to insert a reference to the Military Court of
Australia. The intended effect is for that amendment to commence after the
commencement of section 109 of the Trans-Tasman Proceedings Act 2010.
83. Item 24 in the table provides that items 48 and 49 in Schedule 3 commence
immediately before the commencement of item 1 of Schedule 2 of the Trans-Tasman
Proceedings (Consequential Provisions) Act 2010. Items 48 and 49 in Schedule 3
repeal amendments contained in the Trans-Tasman Consequential Act 2010 to
provisions in the Defence Force Discipline Act 1982, which will not exist if this Bill
commences first. If the Trans-Tasman Consequential Act 2010 commences before
the commencement of this Bill, then the amendments will be to provisions in the
Defence Force Discipline Act 1982 which do exist and therefore will not need to be
repealed by items 48 and 49 in Schedule 3 of this Bill.
84. Item 25 in the table provides that Division 1 of Part 2 of Schedule 3
commences immediately after the later of either commencement of section 3 of the
Military Court Act or commencement of section 3 of the Judicial Misbehaviour and
Incapacity (Parliamentary Commissions) Act 2012. The provisions do not commence
if the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012
does not commence.
85. Item 26 in the table provides that Division 2 of Part 2 of Schedule 3
commences immediately after the later of either commencement of section 3 of the
Military Court Act or commencement of section 3 of the Courts Legislation
Amendment (Judicial Complaints) Act 2012. The provisions do not commence if the
Courts Legislation Amendment (Judicial Complaints) Act 2012 does not commence.
86. The provisions in Divisions 1 and 2 of Part 2 of Schedule 3 incorporate
reforms to the handling of complaints about judicial officers in the federal courts to
the Military Court of Australia. These reforms are provided for in the Judicial
Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts
Legislation Amendment (Judicial Complaints) Bill 2012, which were introduced on
14 March 2012. Commencement of these provisions is contingent on the passage of
these Bills in order to ensure consistency with the complaints handling frameworks of
other federal courts.
87. Item 27 provides that Division 3 of Part 2 of Schedule 3 commences
immediately after the later of either commencement of section 3 of the
Military Court Act or commencement of Schedule 2 to the Access to Justice (Federal
Jurisdiction) Amendment Act 2012. The provisions do not commence if the Access to
Justice (Federal Jurisdiction) Amendment Act 2012 does not commence.
15
88. The provisions in Division 3 of Part 2 mirror suppression and non-publication
order provisions included in the Access to Justice (Federal Jurisdiction) Amendment
Bill 2011 which was introduced on 23 November 2011. Commencement of these
provisions is contingent on the passage of this Bill in order to ensure consistency with
the power to make suppression and non-publication orders in other federal courts.
89. Item 32 provides that Item 36 of Schedule 5 commences on the day this Act
receives the Royal Assent.
Clause 3 - Schedule(s)
90. This clause provides for each Act specified in a Schedule to the Bill to be
amended in accordance with the items set out in the relevant Schedule
SCHEDULE 1 - Amendment of the Defence Force Discipline Act 1982
Part 1 - Main amendments
Item 1 - Subsection 3(1) (subparagraph (a)(i) of the definition of appropriate
authority)
91. This item replaces the reference to `the Registrar' in the definition of
`appropriate authority' in subsection 3(1) with `the convening superior authority for
the court martial,' for the purpose of proceedings before a court martial. An
`appropriate authority' has the power to summon persons to appear before a service
tribunal (courts martial, Defence Force magistrate or summary authority) under
sections 87 and 138 of the Defence Force Discipline Act 1982.
92. This amendment reflects the abolition of the position of RMJ and the use of a
convening superior authority to summon persons to appear before a residual court
martial proceeding (see the General Outline of this Bill).
Item 2 - Subsection 3(1) (subparagraph (b)(i) of the definition of appropriate
authority)
93. This item replaces the reference to `the Registrar' in the definition of
`appropriate authority' in subsection 3(1) with a `superior authority', for the purpose
of proceedings before a Defence Force magistrate. As outlined in the General Outline
of this Bill, this reflects the abolition of the position of RMJ and the use of superior
authorities to summon persons to appear before a Defence Force magistrate.
Items 3 and 4 - Subsection 3(1) (at the end of the definition of authorized officer)
94. These items amends the definition of `authorized officer' to clarify that its use
is not just for the purposes of provisions in which the expression occurs, but also
provisions in which the expression has effect. This is a consequence of amendments
in Items 64, 70, and 71 in Schedule 1 of this Bill, which replace references to
`authorized officer' in sections 90, 101X and 101Y with references to `issuing
officer'. `Issuing officer' is defined in item 14 to include `authorized officers' and
judicial officers of the Military Court. Although these sections will not expressly
refer to `authorized officers', this expression will have effect in those sections because
16
it is included in the definition of `issuing officer' to which the sections do expressly
refer.
95. These items also insert a note below the definition of `authorized officer' to
clarify that although this term is not expressed in sections 90, 101X and 101Y, it still
has effect in these sections because an `authorized officer' is an `issuing officer' for
the purposes of those sections.
Item 5 - Subsection 3(1) (definition of Chief Judge Advocate)
96. This item repeals the definition of `Chief Judge Advocate'. This reflects the
abolition of this office (see the General Outline of this Bill).
Item 6 - Subsection 3(1) (definition of civil detention facility)
97. This item amends the definition of `civil detention facility'. The term `in a
civil court' has been substituted in this definition for `in respect of a civil court
offence'. The existing definition of civil detention facility is a police station or other
premises in which persons in custody awaiting trial in a civil court may be lawfully
detained. The effect of the amendment is to maintain the status quo by excluding
from the definition of civil detention facilities persons in custody awaiting trial for a
service offence. In almost all cases, custody of a person awaiting trial on charges
relating to service offences will be in a military detention facility. The term `civil
court offence' excludes service offences, and so will not apply in relation to the
Military Court (which only deals with service offences). However, the term `civil
court' is defined in the Defence Force Discipline Act 1982 to mean `a federal court or
a court of a State or Territory' and the Military Court is a federal court.
Item 7 - Subsection 3(1) (definition of convening superior authority)
98. This item inserts a definition of `convening superior authority' for the purpose
of a court martial into subsection 3(1). A `convening superior authority' means the
superior authority who convened the court martial, or if the superior authority who
convened the court martial is replaced by another superior authority, that other
superior authority. The amendment reflects the abolition of the position of RMJ and
the use of certain superior authorities to convene or refer charges to service tribunals
(see the General Outline of this Bill).
99. Certain superior authorities will therefore be appointed with powers to
convene a court martial or refer charges to a Defence Force magistrate for trial when
the Military Court determines that it is necessary to hear a matter overseas, but it is
not possible for the Court to do so.
Item 8 - Subsection 3(1) (definition of convicted person)
100. This item amends the definition of `convicted person' to include a person
convicted by the Military Court. This item also removes reference to persons
convicted by the DFDAT, as the Tribunal will be abolished under the new military
justice system (see the General Outline of this Bill).
17
Item 9 - Subsection 3(1) (definition of Court Martial and Defence Force
Magistrate Rules)
101. This item amends the definition of `Court Martial and Defence Force
Magistrate Rules' to reflect the movement of the relevant provision providing the
authority to make the Rules from section 149A to new Schedule 3B of the Defence
Force Discipline Act 1982 (see Item 105 in Schedule 1 of this Bill and clause 46
inserted by Item 165 in Schedule 1 of this Bill).
Item 10 - Subsection 3(1) (definition of Defence Force Discipline Appeal
Tribunal)
102. This item repeals the definition of `Defence Force Discipline Appeal Tribunal'
reflecting the abolition of that Tribunal by Schedule 4 of this Bill (see the General
Outline of this Bill).
Item 11 - Subsection 3(1) (definition of Defence Force magistrate)
103. This item amends the definition of `Defence Force magistrate' to reflect the
movement of the relevant provision for the appointment of Defence Force magistrates
to Schedule 3B of the Defence Force Discipline Act 1982. The appointment provision
does not change in substance.
Item 12 - Subsection 3(1) (definition of Director of Defence Counsel Services)
104. This item inserts a definition of `Director of Defence Counsel Services', to
have the same meaning as in the Defence Act 1903. This term is used in section 101F
which, as amended, provides for the Director to establish a list of legal officers who
can assist an accused person.
Item 13 - Subsection 3(1) (definition of elective punishment)
105. This item repeals the definition of `elective punishment'. The current system
of elective punishments available to commanding officers and superior summary
authorities at the summary level will be replaced by a single scale of punishments that
can be imposed by the summary authorities (see Item 164 of this Bill providing for a
new Schedule 3 of the Defence Force Discipline Act 1982).
Item 14 - Subsection 3(1) (definition of issuing officer)
106. This item inserts a definition of `issuing officer' as an `authorized officer', or a
Judge or a Federal Magistrate of the Military Court. Items 64, 70, and 71 in
Schedule 1 of this Bill replace the references to `authorized officer' in existing
sections 90, 101X and 101Y with `issuing officer' to allow Judges and Federal
Magistrates of the Military Court to issue arrest and search warrants under these
sections of the Defence Force Discipline Act 1982.
Item 15 - Subsection 3(1) (definition of mental impairment)
107. This item inserts a definition of `mental impairment' as having the same
meaning as in section 7.3 of the Criminal Code. This is a consequence of updating
18
the regime for dealing with mental impairment, modelled on the Commonwealth
regime.
Item 16 - Subsection 3(1) (definition of Military Court)
108. This item inserts a definition of the `Military Court', being the Military Court
of Australia created by the Military Court of Australia Act 2012.
Item 17 - Subsection 3(1) (definition of Military Court Act)
109. This item inserts a definition of the `Military Court Act', being the Military
Court of Australia Act 2012.
Item 18 - Subsection 3(1) (definition of Military Court Rules)
110. This item inserts a definition of `Military Court Rules' as having the same
meaning as in the Military Court Act.
Item 19 - Subsection 3(1) (definition of old system offence)
111. This item repeals the definition of `old system offence' in the Defence Force
Discipline Act 1982 as all proceedings in respect of old system offences have been
completed and no new proceedings for old system offences can be instituted (see the
General Outline of this Bill).
Item 20 - Subsection 3(1) (definition of prescribed acquittal)
112. This item amends the definition of `prescribed acquittal' by removing the term
`unsoundness of mind' and replacing it with `mental impairment'. This amendment is
a consequence of updating the regime for dealing with mental impairment. The new
regime is modelled on the Commonwealth regime and adopts the Criminal Code
definition of mental impairment (see Item 15 in Schedule 1 of this Bill).
Item 21 - Subsection 3(1) (at the end of the definition of prescribed acquittal)
113. This item inserts a note after the definition of `prescribed acquittal' referring
to the relevant provision concerning prescribed acquittal in subclause 35(1) of
Schedule 3B.
Item 22 - Subsection 3(1) (definition of prescribed acquitted person)
114. This item inserts a definition of `prescribed acquitted person' to mean 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.
Item 23 - Subsection 3(1) (definition of previous service law)
115. This item repeals the definition of `previous service law' which only had
application for old system offences. All proceedings in respect of old system offences
have been completed and no new proceedings for old system offences can be
instituted (see Item 19 in Schedule 1 of this Bill).
19
Item 24 - Subsection 3(1) (definition of Registrar)
116. This item repeals the definition of the Registrar of Military Justice (RMJ).
The role of the RMJ in convening courts martial and referring charges to a Defence
Force magistrate for trial will be replaced by a superior authority (for Defence Force
magistrates) and a convening superior authority (for courts martial) (see the General
Outline of this Bill).
Item 25 - Subsection 3(1) (definition of Schedule 1A offence)
117. This item repeals the definition of `Schedule 1A offence'. The current
restrictions on the right to elect to be tried by court martial or Defence Force
magistrate instead of a summary authority, including if a person has been charged
with an offence under Schedule 1A, have been removed. This reflects the new role of
courts martial or Defence Force magistrates in the new military justice system.
Under the new system, all accused brought before a summary authority will have the
right to elect to be tried by the Military Court for all offences, with the exception of
custodial offences or offences ancillary to custodial offences.
Items 26 and 27 - Subsection 3(1) (subparagraph (b)(ii) of the definition of
service offence); (paragraph (c) of the definition of service offence)
118. These items remove the reference to `old system offence' from the definition
of `service offence' to reflect the discontinuance of the old service offence provisions
and update the punctuation accordingly (see the General Outline of this Bill).
Item 28 - Subsection 3(1) (at the end of the definition of service offence)
119. This item inserts a note after the definition of `service offence' to make
reference to new section 3A, which provides that a service offence is an offence
against a law of the Commonwealth, but is not an indictable offence.
Item 29 - Subsection 3(1) (definition of unfit to be tried)
120. This item inserts a definition of `unfit to be tried', and provides for that term to
include unfit to plead.
Item 30 - Subsection 3(15) Interpretation
121. This item repeals subsection 3(15), which provides that an offence against the
Defence Force Discipline Act 1982 or the regulations is not an offence against a law
of the Commonwealth. This amendment is a consequence of the insertion of new
section 3A (see Item 31 in Schedule 1 of this Bill).
Item 31 - After Section 3 (Character of service offences)
122. This item inserts a new section 3A which states that for the purposes of any
law of the Commonwealth, other than this Act or the regulations, a service offence is
an offence against the law of the Commonwealth. The purpose of new section 3A is
to invoke the application of Commonwealth Acts that are expressed to apply to an
offence against the law of the Commonwealth, for example, the Crimes Act 1914 and
the National Security Information (Criminal and Civil Proceedings) Act 2004.
20
Section 3A also makes service offences not indictable offences. An effect of this is to
provide that service offences are not to be tried by jury, even when they are being
heard by the Military Court.
Item 32 - After Paragraph 5A(a) Appointment of superior authority
123. This item includes additional responsibilities for superior authorities to refer
charges to a Defence Force magistrate or convene courts martial when directed to do
so by the DMP under various provisions in the Defence Force Discipline Act 1982.
This reflects the superior authorities' absorption of the functions of the RMJ, whose
office will be discontinued in the new military justice system (see the General Outline
of this Bill).
Item 33 - After section 6 Chaplains-notional rank
124. This item outlines the notional rank for chaplains for the purposes of the
Defence Force Discipline Act 1982. These provisions are currently contained in
regulation 32 of the Defence Force Discipline Regulations 1985.
125. For the purposes of the Military Court, this amendment is necessary to enable
the court to determine what punishment it can impose under Division 3 of Part 9 of
the Military Court Act if the court has tried and convicted a chaplain of a service
offence. Punishments under Division 3 of Part 9 of the Military Court Act include
reduction in rank or forfeiture of seniority.
Item 34 - Subsection 7(1) Prisoners of war
126. This item amends subsection (1) to provide for the Military Court Act, its rules
and regulations, applying in relation to prisoners of war. This ensures that prisoners
of war who commit serious service offences under the Defence Force Discipline Act
1982 can be effectively tried in the Military Court.
Item 35 - Section 10
127. Section 10 provides that Chapter 2 of the Criminal Code (general principles of
criminal responsibility) applies to all service offences, other than `old system
offences'. This item removes the reference to `old system offences' in section 10 to
reflect the discontinuance of old system offence provisions (see the General Outline
of this Bill).
Item 36 - Subsection 11(4) Recklessness and negligence in relation to a member
of the Defence Force
128. Subsection 11(4) provides that section 11 does not apply to old system
offences. This item repeals subsection 11(4) to reflect the discontinuance of old
service offence provisions (see the General Outline of this Bill). This subsection is no
longer necessary given the reference to `old system offences' has been removed from
the definition of `service offence' by items 26 and 27.
21
Item 37 - Subsection 63(1) Consent for proceedings of certain offences
129. This item extends the requirement to obtain the consent of the CDPP to
institute proceedings for certain offences against section 61, to include proceedings to
be instituted in the new Military Court.
Item 38 - Section 65 Maximum punishment for old system offence
130. This item repeals section 65 to reflect the discontinuance of old system
offence provisions (see the General Outline of this Bill).
Item 39 - Subsection 66(1) Punishment or order to be in respect of a particular
conviction
131. This item amends subsection 66(1) by inserting the words `by a service
tribunal' after `particular conviction' to make clear that punishments or orders
imposed by a service tribunal must be imposed in respect of convictions by service
tribunals (rather than convictions by the Military Court).
Item 40 - Subsection 67(1) Authorised punishments
132. This item amends subsection 67(1) to make clear that the subsection concerns
only convictions by courts martial or Defence Force magistrates. It reflects the policy
that courts martial and Defence Force magistrates can only impose punishments in
respect of convictions made by courts martial and Defence Force magistrates (as
opposed to convictions by the Military Court).
Item 41 - Subsection 67(2) Authorised punishments
133. This item amends subsection 67(2) to make clear that the subsection concerns
only convictions by summary authorities. It reflects the policy that summary
authorities can only impose punishments in respect of convictions made by summary
authorities (as opposed to convictions by the Military Court).
Item 42 - Paragraph 70(1)(a) Sentencing principles
134. This item replaces the term `civil court' with `civil courts in relation to a civil
court offence'. The intent of this amendment is to direct a service tribunal to have
regard to the sentencing principles used by civil courts who do not hear service
offences. Clause 139 of the Military Court of Australia Bill imports the sentencing
principles of the Defence Force Discipline Act 1982 for matters in the Military Court.
Item 43 - Paragraph 74(2)(b) Concurrent or cumulative punishments
135. This item amends paragraph 74(2)(b) by inserting `imposed by a service
tribunal or the Military Court' after the first occurring reference to a `prescribed
punishment'. With the establishment of a new Military Court to hear service
offences, there is a possibility that a service tribunal could be imposing a punishment
on a person who has already been convicted by the Military Court and on whom the
Military Court has imposed punishment. This amendment is necessary to provide that
the punishments (which will be of different kinds) are to be concurrent, irrespective of
22
whether they were both imposed by a service tribunal or whether the earlier
punishment was imposed by the Military Court.
136. Among the prescribed punishments in subsection 74(1), the only punishments
which the Military Court can impose are imprisonment and detention. If the Military
Court imposes imprisonment, the person will be dismissed from the ADF in
accordance with subclause 141(1) of the Military Court of Australia Bill. That person
would not be able to commit another service offence and the concurrency of a
punishment of imprisonment could not arise. In practice, therefore, the only
prescribed punishment imposed by the Military Court to which paragraph 74(2)(b)
will apply is detention.
Item 44 - Paragraph 74(2)(c) Concurrent or cumulative punishments
137. This item amends paragraph 74(2)(c) by inserting `imposed by a service
tribunal' after the first occurring reference to a `prescribed punishment'. As a service
tribunal is unable to revoke a suspended punishment imposed by the Military Court
(whether in whole or in part), the paragraph will only have application when both
punishments are being imposed by a service tribunal.
Item 45 - Paragraph 74(4)(b) Concurrent or cumulative punishments
138. This item amends paragraph 74(4)(b) by inserting `imposed by a service
tribunal or the Military Court' after the first occurring reference to a `prescribed
punishment'. This amendment is necessary to provide that the punishments (which
will be of the same kind) imposed are to be cumulative, irrespective of whether they
were both imposed by a service tribunal or whether the earlier punishment was
imposed by the Military Court.
139. For the reasons outlined above in Item 43, the only prescribed punishment
imposed by the Military Court to which paragraph 74(2)(b) will apply is detention.
Item 46 - Paragraph 74(4)(c) Concurrent or cumulative punishments
140. This item amends paragraph 74(4)(c) by inserting `imposed by a service
tribunal' after the first occurring reference to a `prescribed punishment'. This
amendment is necessary to provide that the punishments (which will be of the same
kind) imposed are to be cumulative. The amendment reflects the fact that a service
tribunal is unable to revoke a suspended punishment (whether in whole or in part)
imposed by the Military Court.
Item 47 - Paragraph 74(4A)(a) Concurrent or cumulative punishments
141. This item amends paragraph 74(4A)(a) by inserting `imposed by a service
tribunal' after the first occurring reference to `prescribed punishment'. This
amendment is necessary to provide that the punishments (which will be of different
kinds) imposed are to be concurrent. The amendment reflects the fact that a
competent reviewing authority, or service tribunal is unable to revoke, or recommend
revocation of, a suspended punishment (whether in whole or in part) imposed by the
Military Court.
23
142. This item clarifies that the ability to revoke a suspended punishment and
impose another punishment contemplated in paragraph 74(4A)(a) only arises when
the first prescribed punishment was imposed by a service tribunal.
Item 48 - Paragraph 74(4B)(a) Concurrent or cumulative punishments
143. This item amends paragraph 74(4B)(a) by inserting `imposed by a service
tribunal' after the first occurring reference to `prescribed punishment'. This
subsection allows a reviewing authority to order that the punishments (which will be
of the same kind) imposed can be cumulative when considering whether to revoke a
prescribed punishment and on recommendation that the punishments be cumulative.
The amendment reflects the fact that a competent reviewing authority, or service
tribunal is unable to revoke, or recommend revocation of, a suspended punishment
(whether in whole or in part) imposed by the Military Court by making it clear that,
for this paragraph to apply, the earlier prescribed punishment can only have been
made by a service tribunal.
Item 49 - Paragraph 74(6)(a) Concurrent or cumulative punishments
144. This item amends paragraph 74(6)(a) by inserting `imposed by a service
tribunal or the Military Court' after `detention'. This is to clarify that
paragraph 74(6)(a) applies to set the commencement time for the later punishment of
detention at the end of the period of detention relating to the earlier punishment,
irrespective of whether the earlier punishment was imposed by a service tribunal or
the Military Court.
Item 50 - After subsection 76(1) Breach of undertaking to be of good behaviour
145. This item inserts a new subsection 76(1A) to provide that if the Military Court
convicts a person of a service offence during a period in which that person has
undertaken to a summary authority to be of good behaviour, a summary authority of
the same kind as the one to which the undertaking was given may take action under
Part IV (Punishments and orders) of the Defence Force Discipline Act 1982 in
relation to the person for the first offence. The definition of `summary authority' in
subsection 3(1) provides that there are three kinds of summary authority: a superior
summary authority, a commanding officer or a subordinate summary authority.
Item 51 - Subsection 76(2) Breach of undertaking to be of good behaviour
146. This item amends subsection 76(2) to reflect the insertion of
subsection 76(1A) under Item 50 in Schedule 1 of this Bill to provide that a service
tribunal, before taking action under subsection 76(1), must hear evidence relevant to
the determination it is to make about the conviction of the offence in relation to which
the breached good behaviour undertaking was given.
Item 52 - Section 77(3)(c) Taking other offences into consideration
147. This item amends paragraph 77(3)(c) to prevent admissions made to a court
martial or Defence Force magistrate under section 77(1)(c) of the Defence Force
Discipline Act 1982 from being admissible as evidence in the Military Court where
24
those admissions were not taken into account in the court martial or Defence Force
magistrate trial.
Item 53 - Subsection 80(1) Revocation of suspension of punishment
148. This item amends subsection 80(1), which provides for the revocation of
suspension of punishments, to clarify that only punishments imposed under the
Defence Force Discipline Act 1982 (by a service tribunal) can be revoked, while
punishments imposed by the Military Court cannot be revoked. This restriction is
necessary as it is not possible for a service tribunal to revoke the suspension of any
punishment imposed by the Military Court.
Items 54, 55 and 56 - Paragraph 81(1)(a), Subsection 81(2) and Subsection 81(3)
Remission of suspended punishment
149. These items amend paragraph 81(1)(a), and subsections 81(2) and 81(3), to
limit the application of section 81 to the remission of suspended punishments imposed
under the Defence Force Discipline Act 1982 (by a service tribunal), and not to those
imposed by the Military Court.
Item 57 - Section 82 Remission of punishment of detention on imprisonment
150. This item repeals section 82 and substitutes a new section 82. The new
section 82 ensures that a punishment of detention, whether imposed by the Military
Court or a service tribunal (and whether suspended or not) will be remitted if the
convicted person is subsequently sentenced to imprisonment. This is because if a
person is sentenced to imprisonment, they will also be dismissed from the ADF,
making it inappropriate and impracticable to continue to detain them in an ADF
detention facility.
Item 58 and 59 - Section 87 (heading) and Subsections 87(1) and (1A) Power to
charge person with service offence and issue summons etc
151. This item repeals subsections 87(1) and (1A) and substitutes new subsections
87(1) and (1A). The new subsections maintain the current ability of the DMP to refer
charges to a summary authority. They confer additional ability for the DMP to
commence proceedings in the Military Court. The exception to this is subsection
87(1B), which provides that the DMP must not commence proceedings in relation to a
custodial offence in the Military Court.
152. Custodial offences are set out in Division 6A of Part III of the Defence Force
Discipline Act 1982 and are offences committed while the person is being detained in
an ADF detention facility. These include conduct such as making unnecessary noise
and committing a nuisance. Custodial offences, given their less serious nature, are to
be exclusively tried by summary authorities.
153. The new subsections remove the ability of the DMP to request the RMJ to
convene a court martial or refer charges to a Defence Force magistrate. This is
because the office of the RMJ is to be abolished. Courts martial and Defence Force
magistrates will only be used when proceedings have been commenced in the Military
Court, and the Military Court determines that it is necessary to sit overseas to hear and
25
determine a matter, but it is not possible for it to do so (see General Outline of this
Bill and clause 51 of the Military Court of Australia Bill 2012).
154. The new subsections retain the current ability of authorised members of the
Defence Force (along with the DMP) to charge defence members with service
offences, cause a copy of the charge to be given, and order their appearance before a
commanding officer or subordinate summary authority. The new subsections also
retain the ability of authorised members of the Defence Force to summon the person
(whether a defence member or not) to appear before a commanding officer.
155. However, the current ability of authorised members of the Defence Force to
refer charges to a summary authority or, to the RMJ to convene a court martial or,
refer charges to a Defence Force magistrate will not be retained, nor will they be
given additional ability to refer charges to a Military Court. This will be the sole
responsibility of the DMP.
Item 60 - Subsection 87(6) Power to charge person with service offence and issue
summons etc
156. This item repeals existing subsection 87(6) and inserts a new subsection 87(6)
which provides that a proceeding must not be instituted against a person in respect of
a service offence except as provided by the Defence Force Discipline Act 1982 or the
Military Court of Australia Act 2012. This provision is intended to prevent any
private prosecutions or any civil authority from instituting proceedings for service
offences.
157. This item also renumbers as subsection 87(7) the current subsection 87(6),
which defines `authorised member of the Defence Force.' This definition is amended
to reflect the movement of the DMP's powers into Division 2 of Part VII of the
Defence Force Discipline Act 1982.
Item 61 - After section 87 Notice of right to elect to have charge tried by the
Military Court
158. This item inserts a new section 87A, after section 87, which places an
obligation on the DMP or an authorised member of the Defence Force to notify in
writing a person who has been charged with a service offence that the person may
elect to have the charge tried by the Military Court. The notice must also contain
information regarding the period in which an election may be made, the right to
obtain legal advice, how an election may be made, and the right to withdraw an
election. Subsection 87A(3) excludes the obligation to notify persons charged with a
prescribed offence or a custodial offence.
159. Prescribed offences are defined in section 104, and are generally service
offences with serious criminal law equivalents such as murder, manslaughter and
sexual assault. These prescribed offences are outside the jurisdiction of a summary
authority and hence an election is not offered. Custodial offences may not be tried by
the Military Court and therefore an election to have them tried by the Military Court
is also not available.
26
Item 62 - Subsection 88(1) Arrest, summons etc. where accused person not
present at hearing before service tribunal
160. This item removes the reference to the RMJ, reflecting the discontinuance of
this position under the new military justice system (see the General Outline of this
Bill).
Item 63 - Subsection 88(1A) Arrest, summons etc. where accused person not
present at hearing before service tribunal
161. This item repeals subsection 88(1A), which provides that the RMJ may carry
out an action under subsection 88(1) on the direction of a judge advocate or a Defence
Force magistrate. This amendment is necessary to reflect the discontinuance of the
position of the RMJ (see the General Outline of this Bill).
Item 64 - Section 90 Arrest under warrant
162. This item replaces the references to `authorized officer' with `issuing officer'
in section 90. As `issuing officer' will be defined to mean `authorized officers' and
judicial officers of the Military Court (see Item 14 in Schedule 1 of this Bill), this
amendment will allow judicial officers of the Military Court to issue warrants for
arrest under the Defence Force Discipline Act 1982.
Item 65 - Subsections 95(3) to 95(9) Avoidance of delay after arrest
163. This item repeals the current subsections 95(3) to 95(9) and substitutes them
with new subsections 95(3) to 95(9).
164. Subsection 95(3) merges current subsection 95(3) (with no substantive
amendment) with the first part of current subsection 95(4) (with substantive
amendment). It requires that if a person is charged with a service offence, the
commanding officer must, as soon as practicable, cause a copy of the charge to be
given to the person, consistent with the current requirement in current
subsection 95(3).
165. It then requires the commanding officer to either cause proceedings to be
commenced to deal with the charge or to refer the charge to the DMP. Under
section 110, a commanding officer may deal with the charge by making a decision to
try the charge, referring the matter to another commanding officer, referring the
charge to a superior summary authority, or directing that the matter not be proceeded
with. If the charge is referred to the DMP, the DMP may take any action under
section 103, which includes the option of instituting proceedings in the Military
Court. This new option of referring the charge to the DMP is necessary as a
commanding officer cannot institute proceedings in the Military Court. This power is
exclusive to the DMP.
166. Subsection 95(4) makes no substantive amendment to the requirement in the
second part of existing subsection 95(4), but reflects that the first part of the current
subsection 95(4) has been moved into the new subsection 95(3). New subsection
95(4) requires that if the commanding officer does not cause proceedings to be
commenced to deal with the charges or refer the charges to the DMP within 48 hours
27
after the accused person has been delivered in to their custody, they must provide a
report in writing to a superior authority and the DMP on his or her reasons for failing
to comply with the time requirements in dealing with the charge.
167. Subsection 95(5) provides that if a person makes an election under Division 1
of Part VII to have the charges against them tried by the Military Court, prior to the
commanding officer causing proceedings to be commenced to deal with the charge or
referring the charges to the DMP, the commanding officer must not cause proceedings
to be commenced, and must refer the charges to the DMP. The note to the subsection
indicates that the DMP may deal with the charge under new section 103A (which
applies where the accused person has elected to be tried by the Military Court). This
new provision is necessary as accused persons, who would otherwise be dealt with by
summary authority, will have the right to elect to be tried by the Military Court under
the new military justice system.
168. Subsection 95(6) reproduces the existing subsection 95(5) in slightly modified
form, to clarify the existing requirements under that subsection. Under
subsection 95(6), if an accused person remains in the custody of the commanding
officer for a period of eight days or more without proceedings being commenced, the
commanding officer must report, in writing, to a superior authority and the DMP, the
reasons why proceedings have not been commenced to deal with the charge at the end
of the first eight day period of such custody, and at the end of each subsequent eight
day period of such custody.
169. The note to new subsection 95(6) clarifies that this reporting requirement
applies even if the commanding officer is not required to cause proceedings to be
commenced to deal with the charge against the person. This situation may occur if
the commanding officer has referred, or still needs to refer, charges to the DMP who
then has the responsibility to cause proceedings to be formally commenced. In these
cases, the purpose of this reporting requirement on the commanding officer is to
provide a clear means by which to regularly inform both the DMP and the superior
authority that an accused person remains in custody and that action needs to be taken
to cause proceedings to be commenced.
170. Subsections 95(7) reproduces the existing subsections 95(7), with reformatting
to make the provision easier to read.
171. Subsection 95(8) requires that, if an accused person remains in custody for a
period of 30 days or more without proceedings being commenced to deal with the
charge against the person, the superior authority to whom reports have been made
about delay under earlier subsections must notify the DMP and the Chief of Defence
Force (or service chief or authorised officer) of the reasons why proceedings have not
been commenced. This reporting requirement will apply at the end of the first 30
days of such custody, and at the end of each subsequent 30 days period of such
custody.
172. Subsection 95(9) requires that, where the CDF, service chief or authorised
officer receives a report under subsection 95(8), they must order the release of the
accused person unless this is not reasonably practicable due to the exigencies of
service.
28
173. The purpose of these provisions is to ensure a person, who has been taken into
custody, is brought before a court or service tribunal as quickly as possible, while
recognising the exigencies of service may hinder this for a period of time. This may
include where it would not be possible for a period of time to try the person or
accompany the person to a location where the person may be brought before the court.
174. The subsections have also been amended to update cross-references, and
reformatted to make them easier to read.
Item 66 - Subsection 96(5) Time limitation on charges
175. This item repeals subsection 96(5), which imposes a time limitation on the
trial of old system offences, to reflect the repeal of old system offence provisions (see
the General Outline of this Bill).
Items 67 and 68 - Subsection 101F(2) Lists of legal officers
176. These items replace references to the `Chief of the Defence Force' (CDF) with
the `DDCS' in subsection 101F(2). This amendment reflects the transfer of
responsibility for the maintenance of the list of legal officers who are willing to assist
persons in custody at, or in the vicinity of, the prescribed place under section 101F
from the CDF to the DDCS who is better placed to make and update the list.
177. Amendments are being made to the Defence Act 1903 by this Bill to provide
statutory recognition to the office of the DDCS.
Item 69 - Subsection 101F(2A) Lists of legal officers
178. The item repeals subsection 101F(2A), which allows for the CDF to delegate
his or her responsibility for maintaining the list of legal officers in
subsection 101F(2). The repeal of subsection 101F(2A) reflects the fact that the CDF
will no longer maintain the list of legal officers.
Item 70 - Section 101X Search warrants
179. This item replaces the references to `authorized officer' with `issuing officer'
in section 101X. As `issuing officer' is defined to mean authorized officers and
judicial officers of the Military Court (see Item 14 in Schedule 1 of this Bill), this
amendment will allow judicial officers of the Military Court to issue search warrants
under the Defence Force Discipline Act 1982.
Item 71 - Section 101Y Search warrants may be granted by telephone
180. This item replaces the references to `authorized officer' with `issuing officer'
in section 101Y. As `issuing officer' is defined to mean authorized officers and
judicial officers of the Military Court (see Item 14 in Schedule 1 of this Bill), this
amendment will allow judicial officers of the Military Court to issue search warrants
by telephone under the Defence Force Discipline Act 1982.
29
Item 72 - Part VII (heading) Pre-trial matters
181. This item repeals the heading to Part VII `Service Tribunals' and replaces it
with a new heading `Pre-trial matters'. Most of the provisions in this Part that relate
to courts martial and Defence Force magistrate trials have been moved to the new
Schedule 3B. This is to reflect the restricted operation of courts martial and Defence
Force magistrates under the new military justice system. Provisions relating generally
to service tribunals (courts martial, Defence Force magistrates and summary
authorities) are retained in this Part. As this Part also includes new provisions for
electing to be tried by the Military Court, it is more accurately characterised as a Part
relating to pre-trial matters, rather than service tribunals.
Item 73 - Division 1 of Part VII Election by accused person for trial by Military
Court and Division 2 of Part VII Powers of the Director of Military Prosecution
182. This item repeals `Division 1--Director of Military Prosecutions' and
substitutes it with a new `Division 1--Election by accused person for trial by Military
Court' and a new `Division 2--Powers of the Director of Military Prosecutions'.
183. New Division 1 provides a right for ADF members charged with a service
offence before a summary authority to elect to have the charges against them tried by
the Military Court. This election becomes available from the moment the ADF
member is charged until they are required to enter a plea at the summary authority
trial.
184. New section 102 provides that the right to elect to have a charge tried by the
Military Court under Division 1 instead of by a summary authority does not apply in
relation to a charge of a prescribed offence (within the meaning of section 104) or a
custodial offence. The notes to this section explain that this is because a summary
authority does not have jurisdiction to try a charge of a prescribed offence (see
sections 106, 107 and 108), and the Military Court does not have jurisdiction to try a
charge of a custodial offence (see subsection 63(2) of the Military Court Act).
185. Prescribed offences are defined in section 104, and are generally service
offences with serious criminal law equivalents, such as murder, manslaughter and
sexual offences. Prescribed offences are always to be tried by the Military Court (or
the residual court martial or Defence Force magistrate system).
186. Custodial offences are provided for in Division 6A of Part II of the Defence
Force Discipline Act 1982 and are offences committed while the person is being
detained in an ADF detention facility. These offences include conduct such as
making unnecessary noise and committing a nuisance. Custodial offences, given their
less serious nature, are exclusively tried by summary authorities.
187. New subsection 102A(1) provides that an accused person may, in accordance
with new subsection 102A(3), elect to have a charge against them tried by the
Military Court. An exception to this is provided in subsection 102A(2), where the
DMP has instituted a proceeding in respect of the charge in the Military Court, and
the proceeding has not been discontinued.
30
188. New subsection 102A(3) provides that an election must be made by notifying
the DMP in writing. The note states that the DMP may direct that the charge be not
proceeded with or institute a proceeding in respect of the charge in the Military Court.
189. New subsection 102A(4) provides that if an accused person is charged with
two or more service offences, which arise from the same facts or circumstances, and
the accused person elects for one or more of those charges to be tried by the Military
Court, the election is taken to relate to all the charges. This is to avoid inconsistent
findings by a summary authority and the Military Court hearing separate proceedings
relating to the same facts or circumstances.
190. New subsection 102A(5) provides that the right to elect to be tried by the
Military Court will be available to all accused persons at any time after he or she is
charged (under section 87 of the Defence Force Discipline Act 1982) and before the
person is required to enter a plea before a summary authority at trial. If the person is
before a summary authority because a reviewing authority has ordered a re-trial, they
will have the opportunity to elect to instead be tried by the Military Court. This
election can be made after the person is given written notice of the review but before
the person is required to enter a plea to the charge at the new trial.
191. New subsection 102A(6) provides that the accused person must not be
required to enter a plea to the charge within the first 24 hours after the person is
charged or given written notice of the review (whichever is applicable). The effect of
these amendments is that the accused person will have at least 24 hours after they
have been charged or they become aware that a re-trial has been ordered to make an
election.
192. An accused person who does not elect to have their charge(s) tried by the
Military Court before the time specified is taken to have decided not to elect to have
their charge(s) tried by the Military Court, and will be dealt with by a summary
authority. An accused person who pleads guilty to the charges and applies under
subsection 139(3) to not be present at a trial by a summary authority is taken to have
decided not to elect to have their charge(s) tried by the Military Court.
193. New subsection 102A(7) provides that an accused person must be given an
opportunity to obtain legal advice in relation to making an election if a legal officer is
reasonably available to give such advice.
194. New section 102B allows the accused to withdraw an election to have a charge
tried by the Military Court, by written notice to the DMP, if the DMP has not
instituted a proceeding in respect of the charge in the Military Court. The note to this
section states that the DMP may deal with the charge under section 103A, which
includes the power to refer a charge to a summary authority.
Division 2--Powers of the Director of Military Prosecutions
195. New Division 2 sets out the powers of the DMP as provided for in new
sections 103, 103A, 103B, 103C, 103D, 103E and 103F, as inserted by this item.
196. New subsection 103(1) expands the existing subsection 103(1) list of
provisions under which a charge may be referred to the DMP. These additional
31
provisions are subparagraph 95(3)(b)(ii), sections 145 or 146, subsections 158A(1)
and 164(3), and Clause 34 of Schedule 3B.
197. Subparagraph 95(3)(b)(ii) provides that if a person is charged with a service
offence, the commanding officer must, as soon as practicable, refer the charge to the
DMP (see Item 65 in Schedule 1 of this Bill).
198. The reference to subsection 145(1) has been replaced with a reference to
section 145 as a consequence of the repeal that section and the substitution of a new
section 145 under Item 100 in Schedule 1 of this Bill. Section 145 provides that if it
appears to the summary authority that the accused person may be unfit to stand trial,
the summary authority must refer the charge to the DMP. Section 146 provides that,
if evidence is adduced in a trial by summary authority that a person was suffering
mental impairment so as not to be responsible for the conduct, the summary authority
must refer the charge to the DMP.
199. Subsection 158A(1) provides that if a reviewing authority quashes a
conviction on the basis that the person was unfit to stand trial, the reviewing authority
is required to refer the charges to the DMP (see Item 120 in Schedule 1 of this Bill).
Subsection 164(3) provides that if, on review of a prescribed acquittal, the reviewing
authority finds the person unfit to stand trial, they must refer the matter to the DMP
(see Item 130 in Schedule 1 of this Bill).
200. Clause 34 of Schedule 3B provides that if it appears to a court martial or
Defence Force magistrate that a person may not be able to understand the proceedings
against him and accordingly may be unfit to stand trial, they must refer the matter to
the DMP (see Item 165 in Schedule 1 of this Bill).
201. The existing reference to subsection 194(7) is removed as a consequence of
Item 160 in Schedule 1 of this Bill, which repeals section 194.
202. New subsection 103(2) sets out the courses open to the DMP when a charge is
referred to him or her. It retains the DMP's ability, under current subsection 103(1),
to direct that the charges not be proceeded with, or refer charges to a summary
authority for trial. It also includes new options for the DMP to institute proceedings
in the Military Court and to refer the charge to a commanding officer with jurisdiction
under section 107 to try the charge (see Item 79 in Schedule 1 of this Bill).
203. The subsection removes the DMP's ability to request the RMJ to refer the
charge to a Defence Force magistrate or convene a court martial. This reflects the
abolition of the position of RMJ. In addition, new section 103C will provide that the
DMP can only direct a superior authority to refer the charge to a Defence Force
magistrate or convene a court martial to try the charge if a charge is taken to have
been withdrawn from the Military Court under paragraph 61(5)(d) of the Military
Court Act (see below).
204. New subsection 103(3) provides that the DMP must not refer charges back to
a superior summary authority or commanding officer where an accused person has
elected for trial by the Military Court, or when the charge was referred to the DMP by
a service tribunal or reviewing authority because it appeared that the accused person
was unfit to stand trial or evidence was adduced of mental impairment.
32
205. New subsection 103(4) provides that the DMP must not institute a proceeding
in respect of a custodial offence in the Military Court. The note to this subsection
explains that the Military Court does not have jurisdiction to try a charge of a
custodial offence.
206. New subsection 103(5) includes a deeming provision in circumstances where a
conviction (under subsection 158A(1)) or a prescribed acquittal (under subsection
164(3)) is quashed by a reviewing authority, and referred to the DMP on the basis that
the accused person appears unfit to stand trial. If the DMP does not direct that the
charges not be proceeded with, or does not initiate proceedings in the Military Court
within two months, the DMP is taken to have directed that the charge not be
proceeded with. This provides a level of finality in proceedings for the benefit of the
accused person.
207. New section 103A provides that if an accused person elects to have their
charge tried by the Military Court (instead of by a summary authority) under Division
1 of Part VII, the DMP can direct that the charges not be proceeded with, or institute
proceedings in respect of the charge in the Military Court. If an accused person elects
to have their charge tried by the Military Court, and subsequently withdraws that
election (under section 102B), the DMP may direct that the charge not be proceeded
with, or refer the charge to a summary authority or commanding officer, or institute
proceedings in the Military Court.
208. New section 103B provides that if, in a review of a court martial or Defence
Force magistrate proceeding, a reviewing authority orders, under sections 160 or 166,
a new trial of a person (on quashing a conviction or prescribed acquittal on review),
the DMP may direct that the charge be not proceeded with or, if the DMP is satisfied
there is sufficient cogent evidence to justify a new trial of the person, institute
proceedings in the Military Court.
209. The court martial and Defence Force magistrate system is intended as a
backup system for when the Military Court determines that it is necessary, but not
possible, to sit overseas. If a new trial is ordered, it is appropriate there be an option
for a new trial in the Military Court. This allows the Military Court to again consider
if it is both necessary and possible for it to sit overseas.
210. New section 103C will apply where the Military Court makes a determination
under paragraph 61(5)(d) of the Military Court Act that it is necessary, but not
possible, to sit outside Australia. Under that Act, the charges will be taken to have
been withdrawn from the Military Court. Under new section 103C, the DMP may
then direct a superior authority to convene a court martial or refer the charges to a
Defence Force magistrate for trial under Schedule 3B of the Defence Force Discipline
Act 1982. The note to this section explains that if the DMP directs a superior
authority to refer the charge to a Defence Force magistrate for trial, clause 22 of
Schedule 3B requires the charge to be referred to the Defence Force magistrate
nominated by the Judge Advocate General.
211. The DMP may also refer the charge to a superior summary authority with
jurisdiction under section 106 to try the charge, or a commanding officer with
jurisdiction under section 107 to try the charge. Subsection 103C(3) prevents the
DMP from referring the charge to a superior summary authority or a commanding
33
officer if the accused person had made an election under Division 1 to have the charge
tried by the Military Court.
212. If circumstances have changed since the charge was taken to have been
withdrawn from the Military Court, the DMP has the option of instituting a new
proceeding in the Military Court (paragraph 103C(2)(d)). For example, the location
of the accused or availability of the witnesses may have changed such that it is now
possible that the Military Court could hear the matter in Australia.
213. New section 103D applies to charges that have been discontinued in the
Military Court by the DMP. The DMP will have the option of directing that the
charges not be proceeded with or instituting proceedings in the Military Court. The
DMP may also refer the charge to a superior summary authority with jurisdiction
under section 106, or a commanding officer with jurisdiction under section 107, to try
the charge. Subsection 103D(3) provides that the DMP must not refer the charge to a
superior summary authority or a commanding officer if the accused person has made
an election under Division 1 to have the charge tried by the Military Court. The
institution of proceedings in the Military Court would likely only occur if
circumstances have changed since the earlier discontinuance.
214. New section 103E sets out the options for the DMP where a court martial is
dissolved or the reference to a Defence Force magistrate is terminated. Clauses 19
and 31 of new Schedule 3B provide for dissolution of a court martial or termination of
a reference to a Defence magistrate (see Item 165 in Schedule 1 of this Bill). In this
circumstance, it will be open to the DMP to direct that the charges not be proceeded
with; to refer the charges to a superior summary authority or a commanding officer to
try the charge; or to direct a convening superior authority to refer the charges to a
Defence Force magistrate or convene a court martial. The DMP could also institute
proceedings in the Military Court.
215. New subsection 103E(3) prevents the DMP from referring charges to the
summary jurisdiction where the accused has made an election to be tried in the
Military Court.
216. New subsections 103E(4) and (5) apply where an application to dissolve a
court martial or terminate a reference to a Defence Force magistrate and instead have
the charges tried before the Military Court (under clauses 20 and 32 of new Schedule
3B) is successful. In those circumstances, the DMP will have the option to direct that
the charges not be proceeded with, or refer the charges to the Military Court. There
will not be the option to have the charges tried by a service tribunal under Schedule
3B.
217. New section 103F applies if the Military Court orders that a conviction or a
prescribed acquittal imposed by a court martial or Defence Force magistrate be set
aside on appeal to the Military Court. This section allows the DMP to either direct
that the charges not be proceeded with or initiate proceedings for a new trial in the
Military Court. The Military Court will then determine, under section 51 of the
Military Court Act, whether it is both necessary and possible for it to sit overseas. It
is possible that circumstances may have changed which makes it possible for the
Military Court to now hear the trial (whether in Australia or overseas). Subsection
103F(3) deems that the DMP has directed charges against a person not be proceeded
34
with, if the DMP does not within two months direct the charge not be proceeded with
or institute proceedings in the Military Court.
Item 74 - Division 2 of Part VII (heading) Procedure of service tribunals
218. This item repeals the heading for `Division 2 of Part VII--Summary
authorities' and inserts a new heading `Part VIII--Procedure of service tribunals'.
Existing Division 2 of Part VII (relating to summary authorities) will be merged into
new Part VIII--Procedure of service tribunals'. Division 1 of Part VIII will be
headed `Summary authorities'.
Item 75 - Subsection 105A(3) Referral of charge to Director of Military
Prosecutions before dealing with charge under section 109, 110 or 111
219. This item removes the words `subject to paragraph 103(1)(b), if' and
substitutes it with `if' in subsection 105A(3). This is to reflect the new provisions
setting out the powers of the DMP under Division 2 of Part VII.
Item 76 - Subsection 105A(3) (note) Referral of charge to Director of Military
Prosecutions before dealing with charge under section 109, 110 or 111
220. This item repeals the note under subsection 105A explaining the effect of
making the existing provision subject to paragraph 103(1)(b). This is a consequence
of the repeal of the reference to paragraph 103(1)(b) in section 105A by Item 75 in
Schedule 1 of this Bill.
Item 77 - Section 106 Jurisdiction of superior summary authority
221. This item renumbers section 106 as subsection 106(1) as a result of the
insertion of a new subsection 106(2) by Item 78 in Schedule 1 of this Bill.
Item 78 - At the end of section 106 Jurisdiction of superior summary authority
222. This item inserts a new subsection 106(2), which extends the jurisdiction of a
superior summary authority to take action under Part IV (Punishments and orders) in
relation to a person in the circumstances referred to in subsection 76(1A). Under new
subsection 76(1A), a person may be brought before a superior summary authority to
be dealt with in circumstances where the person has breached an undertaking to be of
good behaviour by committing a service offence that resulted in a conviction in the
Military Court (see Item 50 in Schedule 1 of this Bill). The note to this subsection
states that a superior summary authority may be disqualified from taking such action
because of subsection 108A(3) (see Item 82 in Schedule 1 of this Bill).
Item 79 - At the end of section 107 Jurisdiction of commanding officer
223. This item inserts a new subsection 107(3). This subsection extends the
jurisdiction of a commanding officer to take action under Part IV (Punishments and
orders) in relation to a person for a service offence in the circumstances referred to in
new subsection 76(1A). New subsection 76(1A) provides that a person may be
brought before a commanding officer for the purposes of taking action under Part IV
(Punishments and orders) in circumstances where the person has breached an
undertaking to be of good behaviour by committing a service offence that resulted in a
35
conviction in the Military Court (see Item 50 in Schedule 1 of this Bill). The note to
this subsection states that a commanding officer may be disqualified from taking such
action because of subsection 108A(3) (see Item 82 in Schedule 1 of this Bill).
Item 80 - After subsection 108(3) Jurisdiction of subordinate summary authority
224. This item inserts a new subsection 108(3A), which extends the jurisdiction of
a subordinate summary authority to take action under Part IV (Punishments and
orders) in relation to a person in the circumstances referred to in new subsection
76(1A). New subsection 76(1A) provides a person may be brought before a
subordinate summary authority for the purposes of taking action under Part IV in
circumstances where the person has breached an undertaking to be of good behaviour
by committing a service offence that resulted in a conviction in the Military Court
(see Item 50 in Schedule 1 of this Bill). The note to this subsection states that a
subordinate summary authority may be disqualified from taking such action because
of subsection 108A(3) (see Item 80 in Schedule 1 of this Bill).
Item 81 - Section 108A (heading)
225. This item repeals the heading for section 108A--Disqualification of summary
authority from trying a charge, and inserts a new heading for section 108A--
Disqualification of summary authority from trying a charge or taking action under
Part IV. This is consequential to the new subsection 108A(3) (Item 82 in Schedule 1
of this Bill).
Item 82 - At the end of Section 108A Disqualification of summary authority from
trying a charge
226. This item inserts a new subsection 108A(3), which provides a summary
authority must not take action under Part IV (Punishments and orders) in relation to a
person for a service offence in circumstances referred to in new subsection 76(1A), if
because of subsection 108A(1), the summary authority would not have been permitted
to try the charge of the service offence which resulted in the undertaking to be of good
behaviour.
227. Under subsection 108A(1), a summary authority must not try a charge of a
service offence against a person if the summary authority was involved in the
investigation of the offence, the issuing of a warrant for the arrest of the person, or
charging the person with the offence.
Item 83 - Sections 111B and 111C Election by accused person to have charge
tried by the Military Court
228. This item repeals existing sections 111B and 111C and replaces them with a
new section 111B. Sections 111B and 111C provide for an accused person before a
summary authority to elect to be tried by a Defence Force magistrate or a court
martial. However, these sections are replaced by the new provisions in Division 1 of
Part VII, which allow the accused person to elect to be tried by the Military Court.
New section 111B compels the summary authority to refer any charges to the DMP if
the accused makes an election under Division 1 of Part VII. The note to this section
36
states that the DMP will deal with the charge under section 103A, which includes the
power to institute proceedings in the Military Court.
Item 84 - Divisions 3 Courts martial, 4 Defence Force magistrates and 5
Nomination of Defence Force magistrates and members of courts martial of
Part VII
229. This item repeals the existing Divisions 3, 4 and 5 of Part VII relating to
courts martial (Division 3), Defence Force magistrates (Division 4) and the
nomination of Defence Force magistrates and members of courts martial (Division 5).
These provisions relate particularly to courts martial and Defence Force magistrates
and have been moved to Schedule 3B of the Defence Force Discipline Act 1982 to
reflect the residual operation of courts martial and Defence Force magistrates under
the new military justice system.
Item 85 - Part VIII (heading) Procedure of service tribunals
230. This item repeals the heading `Part VIII--Procedure of service tribunals'.
This heading will be the heading to Division 2 of Part VII (see Item 74 in Schedule 1
of this Bill).
Item 86 - Division 1 of Part VIII (heading) Trial by summary authority
231. This item repeals the heading to Part VIII, `Division 1--Trial by summary
authority'. The provisions in this Division will, as amended, be in the new Division 1
of Part VIII.
Item 87 - Subparagraph 130(1)(a)(ii) Trial by summary authority
232. This item amends subparagraph 130(1)(a)(ii) by removing the words `subject
to subsection 131(3)'. This is a consequence of the repeal of section 131 by Item 88
in Schedule 1 of this Bill.
Item 88 - Sections 131 Accused person may elect to be tried by a court martial or
Defence Force magistrate-election during trial and 131AA Decision by accused
person whether to elect to be tried by a court martial or Defence force
magistrate-decision during trial
233. These items repeal sections 131 and 131AA, which allow an accused person
before a summary authority to elect to be tried by either a court martial or Defence
Force magistrate during a trial. This is because under the new Division 1 of Part VII,
a person charged with any service offence that is within the jurisdiction of a summary
authority will have the right to elect for trial by the Military Court from the time they
are charged until the time they are required to enter a plea. Once a plea is entered in a
summary trial there can be no election by the accused, during the trial, for trial by the
Military Court.
Item 89 - Section 131B Conviction by summary authority to have effect for
service purposes only
234. This item repeals section 131B, which provides that, if a person has been
convicted by a summary authority of a service offence, it has effect for service
37
purposes only, and the person is not required to disclose the offence for any other
purpose. The substance of section 131B will be contained in new section 190C
(Item 157 in Schedule 1 of this Bill). A conviction for a service offence before a
summary authority will continue to be for service purposes only and will not be
required to be disclosed other than for service purposes.
Item 90 - Division 2 of Part VII Trial by court martial or Defence Force
magistrate
235. This item repeals Division 2 of Part VII concerning the procedure for courts
martial and Defence Force magistrate trials. These provisions have been moved to
Schedule 3B of the Defence Force Discipline Act 1982 to reflect the residual
operation of courts martial and Defence Force magistrates under the new military
justice system.
Item 91 - Subsection 139(1) Accused person to be present at hearing
236. This item inserts `and Division 2 of Part 3 of Schedule 3B' after `(5)' in
subsection 139(1). Division 2 of Part 3 of Schedule 3B provides for a person to give a
testimony or appear or make a submission by video link before a court martial or
Defence Force magistrate. This amendment will ensure that the requirement for the
accused person to be present at a hearing before a service tribunal in
subsection 139(1) is subject to, and therefore does not conflict with, the provisions in
Division 2 of Part 3 of Schedule 3B.
Item 92 - Paragraph 139(4)(a) Accused person to be present at hearing
237. This item repeals paragraph 139(4)(a) and replaces it with a new
paragraph 139(4)(a). The new paragraph 139(4)(a) applies where the accused has
pleaded guilty to the charge. It provides that the summary authority may only permit
the accused person not to be present at the hearing if the authority is satisfied that the
accused person was given an opportunity to obtain legal advice in relation to the right
not to elect to be tried by the Military Court, was given 24 hours to enter a plea, and
understands the effect of the plea.
Item 93 - Section 140 Public hearings
238. This item repeals section 140, which provides that courts martial and Defence
Force magistrate trials must be held in public. As this provision relates particularly to
court martial and Defence Force magistrate trials, it has been moved to Schedule 3B
of the Defence Force Discipline Act 1982 to reflect the residual operation of courts
martial and Defence Force magistrates under the new military justice system (see
clause 33 inserted by Item 165 in Schedule 1 of this Bill).
Item 94 - Subparagraph 141(1)(b)(i) Applications and objections
239. This item omits the reference to section 144 in subparagraph 141(1)(b)(i), and
substitutes it with a reference to section 190A. This amendment is a consequence of
the repeal of section 144 (Item 99 in Schedule 1 of this Bill) and replacement with
new section 190A (Item 157 in Schedule 1 of this Bill. This item ensures that
subparagraph 141(1)(b)(i) provides that, any time before an accused person is asked
38
to plead at a trial by a service tribunal, the accused person may enter an objection to
the charge on the ground that, by virtue of section 190A, he or she is not liable to be
tried by a service tribunal for service offences with which he or she has been charged.
New Section 190A relates to previous acquittals or convictions.
Item 95 - Paragraph 141A(1)(b) Amendment of charges
240. This item omits the reference to section 103 in paragraph 141A(1)(b), and
substitutes it with a reference to Division 2 of Part VII. This amendment is a
consequence of the replacement of the powers of the DMP in existing section 103
with Division 2 of Part VII. This item ensures that under paragraph 141A(1)(b), the
DMP is allowed to amend a charge sheet at any stage when the charge is before him
or her under Division 2 of Part VII.
241. It is expected that, where charges are before the Military Court, the Military
Court of Australia Rules will detail the process for making amendments to the charge
sheet. Likewise, where charges are tried by a court martial or Defence Force
magistrate, the Courts Martial and Defence Force Magistrate Rules are expected to
outline the processes and procedures for making amendments to the charge sheet.
Items 96, 97 and 98 - Subsection 142(1) Alternative offences
242. These items repeal paragraph 142(1)(e), which makes provision for alternative
offences in relation to old system offences, and amend the punctuation in paragraphs
142(1)(a),(b),(ba),(c) and (d) to reflect the repeal of paragraph 142(1)(e). As all
proceedings in respect of old system offences have been completed and no new
proceedings for old system offences will be instituted, references to old system
offences throughout the Defence Force Discipline Act 1982 are to be removed.
Item 99 - Section 144 Previous acquittal or conviction
243. This item repeals section 144. Section 144 generally provides that where a
person has been acquitted or convicted of a service offence, the person is not liable to
be tried for the same offence or for an offence that is substantially the same offence.
This section has been moved to Part XII (Miscellaneous) as new section 190A (see
Item 157 in Schedule 1 of this Bill). This is because new section 190A relates to the
Military Court as well as courts martial and Defence Force magistrates and therefore,
does not belong in Part VIII which relates only to the procedure of service tribunals.
Item 100 - Sections 145, 145A and 146 Unfitness to be tried and Mental
impairment at time of conduct constituting service offence
244. This item repeals sections 145 (unsoundness of mind), 145A (notice of alibi)
and 146 (rules of evidence), and inserts new sections 145 and 146.
245. Existing subsections 145(2), (4) and (5), and sections 145A and 146 relate
particularly to court martial and Defence Force magistrate trials. These provisions
have been moved to Schedule 3B of the Defence Force Discipline Act 1982 to reflect
the residual operation of courts martial and Defence Force magistrates under the new
military justice system (see clauses 34, 35, 36, 37 inserted by Item 165 in Schedule 1
of this Bill).
39
246. New sections 145 and 146 provide that, if it appears to a summary authority
that a person may be unfit to stand trial, or evidence is adduced about the accused
person suffering from mental impairment at the time of committing the offence, the
authority must refer the charge to the DMP. This is consistent with the requirements
of the existing system.
247. The notes to the new sections state that the DMP may deal with the charge
under section 103. The DMP powers under section 103 include the power to institute
proceedings in the Military Court. As the Military Court is replacing the courts
martial and Defence Force magistrates system, issues of mental impairment before a
summary authority are to be referred to the Military Court.
Item 101 - After subsection 146A(2) Evidence etc. in proceedings before a
summary authority
248. This item inserts a new subsection 146(2A) which provides that a summary
authority must take judicial notice of all matters within the general service knowledge
of the summary authority. Subsection 146(2) is modelled on existing subsection
147(2). This amendment is a consequence of Item 102 in Schedule 1 of this Bill,
which repeals section 147.
Item 102 - Section 147 Judicial notice of service matters
249. This item repeals existing section 147. Subsection 147(1), which provides that
a court martial or Defence Force magistrate must take judicial notice of all matters
within the general service knowledge of the tribunal or its members, is moved to
Schedule 3B to reflect the restricted operation of courts martial and Defence Force
magistrates under the new military justice system (see subclause 37(2) in Item 165 in
Schedule 1 of this Bill). Subsection 147(2), which provides that a summary authority
must take judicial notice of all matters within the general service knowledge of the
summary authority, is replicated in subsection 146(2A) (see Item 101 in Schedule 1 of
this Bill).
Item 103 - Subdivision B of Division 3 of Part VIII Use of video links and audio
links by courts martial and Defence Force Magistrates
250. This item repeals Subdivision B of Division 3 of Part VIII, which provides for
the use of video links and audio links by courts martial and Defence Force
magistrates. The provisions in this subdivision will be moved to Schedule 3B of the
Defence Force Discipline Act 1982 to reflect the residual operation of courts martial
and Defence Force magistrates under the new military justice system.
Item 104 - Subdivision C of Division 3 of Part VIII (heading) Rules of procedure
for summary tribunals
251. This item repeals the heading of Part VIII, Division 3, Subdivision C--`Rules
of procedure for service tribunals', and replaces it with `Rules of procedure for
summary tribunals'. This new title reflects that the rules of procedure relating to
summary authorities will continue to be provided in the subdivision, but the rules of
procedure for courts martial and Defence Force magistrates will instead be contained
in new Schedule 3B of the Defence Force Discipline Act 1982.
40
Item 105 - Section 149A The Court Martial and Defence Force Magistrate Rules
252. This item repeals section 149A, which provides for the Judge Advocate
General to make rules for courts martial and Defence Force magistrate trials. This
section will be moved to new Schedule 3B to reflect the residual operation of courts
martial and Defence Force magistrates under the new military justice system (see
clause 46 inserted by Item 165 in Schedule 1 of this Bill).
Item 106 - Subsection 152(1) Automatic review by reviewing authority
253. This item repeals subsection 152(1) and substitutes it with a new subsection
152(1), which replaces the references to sections 145(2) and (5) with a reference to
new subclause 35(1) of Schedule 3B (acquittal on the basis of mental impairment at
the time of committing the offence). Existing subsections 145(2) and (5) are repealed
by Item 100 in Schedule 1 of this Bill.
254. This new subsection will also introduce a requirement for review of action
taken under Part IV (Punishments and orders) where charges are referred to the
relevant service tribunal for a breach of an undertaking of good behaviour because of
a subsequent conviction by the Military Court (new subsection 76(1A)).
Item 107 - Subsection 152(3) Automatic review by reviewing authority
255. This item repeals subsection 152(3), and substitutes it with a new
subsection 152(3). The new subsection replicates the requirement for the reviewing
authority to give the person to whom the proceedings relate, and the service tribunal, a
written notice of the results of the review. However, it removes the reference to
`subsection 145(2)', as a consequence of the repeal of section 145 (see Item 100 in
Schedule 1 of this Bill).
Item 108 - Subsection 153(1) Review on petition to reviewing authority
256. This item repeals subsection 153(1) to reflect the new provisions under
subclause 35(1) of Schedule 3B concerning mental impairment. This subsection also
introduces the ability for a person to review action taken under Part IV (Punishments
and orders) when charges are referred to the relevant service tribunal for breach of an
undertaking of good behaviour because of a subsequent conviction by the Military
Court (new subsection 76(1A)).
257. It also inserts a note which provides that this subsection is affected by clause
54 of new 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.
Item 109 - Subsection 153(1A) Review on petition to reviewing authority
258. This item omits the reference to `within' in subsection 153(1A) and substitutes
it with `before the end of'. This is to clarify that a person can lodge a petition for a
section 153 review while the section 152 review is underway or, at any time up to the
later of 30 days after the person is given notice of the results of the review under
subsection 152(3), or the date on which an extension of time granted by the reviewing
authority ends.
41
Items 110, 111 and 112 - Subsections 153(2), 153(3), 153(4) and 153(5) Review on
petition to reviewing authority
259. Items 110 and 112 repeal subsections 153(2) and (5), which relate to an
accused person's right to review under section 153 following a dismissal of leave to
appeal to the DFDAT. These amendments are consequential to the abolition of the
DFDAT. Item 109 makes amendments to punctuation in subsections 153(3) and (4)
to reflect the repeal of subsections 153(2) and (5).
Item 113 - Paragraph 154(1)(a) Report to be obtained before commencement of
review
260. This item removes the reference to `a direction given under subsection 145(2)
or (5)' in paragraph 154(1)(a) and replaces it with `an acquittal under subclause 35(1)
of Schedule 3B'. This reflects the movement of provisions concerning mental
impairment in courts martial or Defence Force magistrates proceedings to subclause
35(1) of Schedule 3B of the Defence Force Discipline Act 1982.
Item 114 - At the end of subsection 155(1) Further review
261. This item adds a note at the end of subsection 155(1) which states that 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.
Item 115 - Section 156 Effect on reviews of appeals to Defence Force Discipline
Appeal Tribunal
262. This item repeals section 156, which provides for the effect on reviews of
appeals to the DFDAT. This amendment is a consequence of the abolition of the
DFDAT.
Item 116 - Section 157 Interpretation
263. This item amends existing section 157 which provides a definition of `review'
for the purposes of Division 3 of Part VIIIA --`Action on review of proceedings that
have resulted in a conviction'. The amendment provides that the definition of review
in section 157 applies to the term other than its use in section 162, which relates to a
review of punishments and orders under Part IV.
Item 117 - Section 158 (heading)
264. This item repeals the heading of Section 158--`Quashing of conviction etc'.
It substitutes this heading with `Quashing of conviction--general'. This amendment
is a consequence of the relocation of provisions relating to quashing of conviction on
the basis that the person was unfit to be tried or suffering mental impairment at the
time of committing the offence in new section 158A (see Items 118-120 in Schedule 1
of this Bill).
42
Item 118 - Subsections 158(1) and (2) Quashing of conviction etc.
265. This item removes the references to subsection 158(5) to reflect the repeal of
that subsection by Item 119 in Schedule 1 of this Bill.
Item 119 - Subsections 158(3), (4) and (5) Quashing of conviction etc.
266. This item repeals subsections 158(3), (4) and (5), which relate to the reviewing
authority's power to quash convictions on the basis that the accused person was
mentally impaired at the time of committing the offence. The reviewing authority's
existing power to quash the conviction and direct that the person be kept in strict
custody until the pleasure of the Governor-General is known, will be removed. This
will be replaced by the new section 158A, which is modelled on the Crimes Act 1914
(see Item 120 of Schedule 1 of this Bill). This modernises the existing antiquated
powers for dealing with persons who are found to be mentally impaired and provides
protections which are closely aligned to the civilian criminal justice system.
Item 120 - After section 158 Quashing of conviction-unfitness to be tried or
mental impairment at time of conduct constituting service offence
267. This item inserts a new section 158A after section 158, which will provide the
new powers of a reviewing authority upon quashing a conviction of a person on the
basis that the person was unfit to be tried or suffering mental impairment at the time
of committing the offence.
268. Subsection 158A(1) provides that, if it appears to the reviewing authority that
the service tribunal should have referred the charge to the DMP on the basis the
accused was unfit to be tried, the reviewing authority must quash the conviction and
refer the charges to the DMP.
269. Subsection 158(2) provides that if, in a review, the reviewing authority is
satisfied that the convicted person was, at the time of the offence, suffering from a
mental impairment so as not to be responsible for the conduct constituting the offence,
the reviewing authority must quash the conviction, find the person not guilty of the
service offence because of mental impairment and acquit the person of the service
offence.
270. As Item 15 in Schedule 1 of this Bill inserts a definition of mental impairment
in the Defence Force Discipline Act 1982 by reference to section 7.3 of the Criminal
Code, subsection 158A(3) provides that, in applying the Criminal Code section 7.3,
subsection 7.3(4) will be taken to be omitted. This is because subsection 7.3(4)
provides that the prosecution can only rely on section 7.3 if the court gives leave. As
the reviewing authority proceedings are not subject to the direction of a court, this
section is not applicable.
271. Subsection 158A(4) provides that, where the reviewing authority acquits a
person under subsection 158A(2), the reviewing authority may, by order, release the
person, release the person subject to certain conditions (including that the person
attend assessment of mental impairment or treatment), or may make any other order it
considers necessary having regard to the best interests of the accused person, the
43
safety of any other person to whom the order relates and the safety of the community
generally.
272. The order must specify the period it is to have effect, which must not be more
than three years (see also subsection 158A(5).
273. Examples of orders may include, but are not limited to, orders requiring a
person to remain at a certain location, or not to leave a certain geographic area. An
order should not be made for detention of a person.
274. Subsection 158A(6) provides that the DMP or person to whom the order
relates may apply for an order to be varied or set aside. Under subsections 158A(7)
and (8), an application to vary or set aside must be made to a service chief (if the
acquitted person is a defence member at the time of application) or the Attorney-
General (in any other case), who may then vary or set aside the order.
275. The discretion granted to the Attorney-General or service chief allows for
flexibility if a person's circumstances change. Decision making would involve
varying or setting-aside an order made by a reviewing authority arising from a
decision to acquit a person on the basis of consideration of a person's mental capacity.
The Attorney-General or service chief (as the case may be) may independently
consider the appropriateness of the order at the time of an application.
276. Subsection 158A(9) provides that a reviewing authority must not quash a
conviction under section 158A if there are grounds for quashing the conviction under
section 158. This includes where the conviction cannot be supported having regard to
the evidence, a substantial miscarriage of justice has occurred (on the basis of material
irregularity or wrong decision on a question of law or mixed question of law and fact),
or that, in all the circumstance of the case, the conviction is unsafe or unsatisfactory.
Item 121 - Section 159 Person taken to have been acquitted
277. This item repeals existing section 159 and replaces it with a new section 159.
Existing section 159 provides that where a reviewing authority quashes a conviction
and does not order a new trial, the person shall be deemed to have been acquitted of
the offence. New section 159 provides that if a reviewing authority:
· quashes a conviction under section 158, and does not order a new trial, or
· quashes a conviction under 158A(1) (unfit to stand trial), and the DMP directs
that the charge of the offence be not proceeded with,
the person is taken to have been acquitted of the offence.
278. It also provides that if a reviewing authority quashes a conviction of a
custodial offence under subsection 158A(4), the person is taken to have been
acquitted of the offence for the purpose of the Defence Force Discipline Act 1982.
44
Item 122 - Paragraph 160(1)(a) New trial
279. This item inserts `under section 158' before `quashes' to provide that a new
trial can only be ordered where a conviction has been quashed under section 158 (but
not under section 158A). This amendment is a consequence of the insertion of a new
section 158A, which provides for a reviewing authority to quash a conviction on the
basis that the person was unfit to stand trial or was suffering mental impairment at the
time of committing the offence. If a reviewing authority quashes a conviction on the
basis of the person being unfit to stand trial or being mentally impaired at the time of
committing the offence rather than ordering a new trial, they must exercise the powers
provided under new section 158A.
Item 123 - At the end of section 160 New trial
280. This item inserts a new subsection 160(4) which requires a reviewing
authority to notify the person, in writing, of their right to elect to have their charge
tried by the Military Court, where the reviewing authority has ordered a re-trial before
a summary authority. This will ensure that accused persons are made aware of their
right to elect under the new military justice system.
Item 124 - Subsection 162(3) Review of action under Part IV
281. This item repeals subsection 162(3) which provides that where on review it
appears that a summary authority has imposed an elective punishment otherwise than
in accordance with section 131, the reviewing authority must quash the punishment.
This subsection has been repealed because it relates to elective punishments, which
will not be part of the new military justice system (see Item 164 in Schedule1 of this
Bill).
Item 125 - Subsection 162(5) Review of action under Part IV
282. This item removes the reference to subsection 162(3) in existing subsection
162(5). This amendment is a consequence of the repeal of subsection 162(3) (see
Item 124 in Schedule 1 of this Bill).
Item 126 - Subsection 162(5) Review of action under Part IV
283. This item clarifies subsection 162(5) by replacing the phrase `convicted the
convicted person of the service offence of which he or she was convicted' with
`imposed the punishment or made the order'. Subsection 162(5) provides that where
a reviewing authority quashes a punishment or revokes an order on review of a
conviction imposed by a service tribunal, they may take such action as could have
been taken under Part IV (punishments and orders) by the service tribunal.
284. It is clearer to refer to the service tribunal who `imposed the punishment or
made the order', rather than to the service tribunal who `convicted the person'. It is
also possible that the service tribunal that convicted the person or made the order was
a different service tribunal to the one that took the Part IV action. This would occur
where a court martial was dissolved or a reference to a Defence Force magistrate
terminated before Part IV action was taken.
45
Item 127 - Paragraphs 162(5)(a) and (b) Review of action under Part IV
285. This item adds `or' at the end of paragraphs 162(5)(a) and (b) to clarify that
the options available to the reviewing authority in paragraphs 162(5)(a) to (d) are
alternative rather than cumulative.
Item 128 - At the end of section 162 Review of action under Part IV
286. This item inserts a definition of review to be used for the purpose of
section 162 of the Defence Force Discipline Act 1982. The definition of review for
the rest of Division 3 is contained in section 157 (as amended by this Act).
287. The definition for section 162 covers both reviews of service tribunal
proceedings resulting in conviction or proceedings in which a summary authority has
taken Part IV (Punishments and orders) action in relation to a person in the
circumstances referred to in subsection 76(1A) (breach of good behaviour
undertakings because of subsequent conviction by Military Court).
Item 129 - Division 4 of Part VIIIA (heading) Action on review of proceedings
that have resulted in prescribed acquittal
288. This item repeals the heading of Part VIIA, `Division 4--Action on review of
proceedings that have resulted in an acquittal on the ground of unsoundness of mind'.
It substitutes this heading with `Division 4--Action on review of proceedings that
have resulted in prescribed acquittal'. This amendment is a consequence of the
replacement of the term `unsoundness of mind' with `mental impairment' in the new
military justice system (see Item 15 in Schedule 1 of this Bill). `Prescribed acquittal'
is defined to mean acquittal on the ground of mental impairment (see Item 20 in
Schedule 1 of this Bill).
Item 130 - Subsection 164(3) Quashing of prescribed acquittal etc
289. This item repeals existing subsection 164(3) and replaces it with a new
section 164(3). Existing subsection 164(3) provides that, on a finding that a service
tribunal should have found the person unfit to stand trial, the reviewing authority must
quash the prescribed acquittal and direct that the person be kept in strict custody until
the pleasure of the Governor-General is known.
290. The new subsection 164(3) modernises this provision by requiring that the
reviewing authority quash the prescribed acquittal and refer the charge to the DMP
where it appears to the reviewing authority that the service tribunal should have found
the person unfit to stand trial. The note states that the DMP may deal with the charge
under section 103. This includes the power to institute proceedings in the Military
Court. Under the new military justice system, if it appears to a reviewing authority or
a service tribunal that a person is unfit to stand trial, the charge will be referred to the
DMP to be dealt with by the new Military Court. The new Military Court will have
powers modelled on the Crimes Act 1914 for dealing with unfitness to stand trial (see
Part 10 of the Military Court of Australia Bill).
46
Item 131 - At the end of section 164 Quashing of prescribed acquittal etc
291. This item inserts a new subsection 164(5) into the Defence Force Discipline
Act 1982. The item provides that if a reviewing authority quashes a prescribed
acquittal by a court martial or Defence Force magistrate, any order relating to
conditions on a person's release is taken to be revoked.
Item 132 - Section 165 Person taken to have been acquitted
292. This item repeals existing section 165 and replaces it with a new section 165.
The existing section 165 provides that if a reviewing authority quashes a prescribed
acquittal and does not give direction under subsection 165(3) (directing that the
person be kept in strict custody until the pleasure of the Governor-General is known),
then the person is deemed to have been acquitted of the offence without qualification.
293. New subsection 165(1) provides that, for the purposes of this Act, if a
reviewing authority quashes a prescribed acquittal under subsections 164(1) or (2) and
does not order a new trial, the person is taken to have been acquitted of the offence
without qualification.
294. New subsection 165(2) provides that, for the purposes of this Act, if the
reviewing authority quashes a prescribed acquittal of a person under
subsection 164(3) and the DMP directs the charge is not to be proceeded with, the
person is taken to have been acquitted of the offence without qualification. A note
also refers to section 103 in relation to the DMP's powers in relation to the charge.
295. New subsection 165(3) provides that, for the purposes of this Act, if a
reviewing authority quashes a prescribed acquittal of a person for a custodial offence
under subsection 164(3), the person is taken to have been acquitted of the offence
without qualification.
296. The effect of making these provisions for `the purposes of this Act' is to
prevent the person being charged with and tried again for these service offences on
the basis of the same conduct. The operation of these subsections will not prevent
trials for equivalent civil criminal offences on the basis of the same conduct.
Item 133 - Paragraph 166(1)(a) New trial
297. This item inserts `under subsection 164(1) or (2)' before `quashes' in
paragraph 166(1)(a). This amendment limits the scope of this section by providing
for the reviewing authority to order a new trial, when prescribed acquittals are
quashed under subsections 164(1) or (2). Prescribed acquittals which are quashed on
the basis that the person should have been found unfit to stand trial under subsection
164(3) will be referred to the DMP (see Item 130 in Schedule 1 of this Bill).
Item 134 - Subsection 169(2) Punishments or orders not approved to be quashed
or revoked
298. This item clarifies subsection 169(2) by replacing the phrase `convicted the
convicted person of the service offence of which he or she was convicted' with
`imposed the punishment or made the order'. Subsection 169(2) provides that where
47
a reviewing authority quashes a punishment or revokes an order specified in
section 172, they may take such action as could have been taken under Part IV
(Punishments and orders) by the service tribunal.
299. It is clearer to refer to the service tribunal who `imposed the punishment or
made the order', rather than to the service tribunal who `convicted the person'. It is
also possible that the service tribunal that convicted the person or made the order may
be a different service tribunal to the one that took the Part IV action. This would
occur where a court martial was dissolved or a reference to a Defence Force
magistrate terminated before Part IV action was taken.
Item 135 - At the end of paragraphs 169(2)(a) and (b) Punishments or orders not
approved to be quashed or revoked
300. This item adds `or' at the end of paragraphs 169(2)(a) and (b) to clarify that
the options available to the reviewing authority in paragraphs 169(2)(a) to (d) are
alternative rather than cumulative.
Item 136 - Section 169BB (cell at table item 2, column headed "Relevant
discipline officer")
301. This item corrects an earlier inadvertent omission in Item 2 of the table in
section 169BB. This item amends the table to include all ADF Warrant
Officers, Chief Petty Officers and Flight Sergeants, as relevant discipline officers for
the purposes of prescribed defence members with the rank of Officer Cadet.
Item 137 - Subsection 169E(4) Election to be dealt with by discipline officer
302. This item amends subsection 169E(4) by substituting the words `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' for the existing `a relevant officer may refer the matter to an authorised
member of the Defence Force to be dealt with according to action 87'. This
amendment is a consequence of the exclusion of the DMP from the definition of
`authorised member of the Defence Force' by Item 60 in Schedule 1 of this Bill.
Item 138 - Section 169J This Part not a bar to action under other provisions
303. This item omits the words `other Part' in section 169J and replaces it with
`provision of this Act other than this Part, or under the Military Court Act,'. The
amended section 169J provides that a prescribed defence member is not prevented
from being dealt with under any provision of the Defence Force Discipline Act 1982
other than Part IXA, or under the Military Court Act, in respect of a service offence
merely because the offence arises out of an act or omission that constitutes a
disciplinary infringement. This amendment ensures that the new Military Court will
be able to deal with charges of service offences even if the offences arise out of acts
or omissions that constitute disciplinary infringements.
Item 139 - Subsection 171(1) Commencement of punishments and orders
304. This item removes the reference to the DFDAT in subsection 171(1), which
provides for the commencement of punishments and orders imposed by a service
48
tribunal, reviewing authority or the DFDAT. This amendment is a consequence of the
abolition of the DFDAT under the new military justice system (see Schedule 4 of this
Bill).
Item 140 - Section 173 Suspension of operation of restitution orders and
reparation orders
305. This item repeals section 173, which relates to the suspension of restitution
and reparation orders made by a court martial or Defence Force magistrate. This
section is moved to new Schedule 3B to reflect the restricted operation of courts
martial and Defence Force magistrates under the new military justice system (see
clause 56 inserted by Item 165 in Schedule 1 of this Bill).
Item 141 - Subsection 174(1) Recovery of fines etc.
306. This item removes the reference to the Defence Force Discipline Appeals Act
1955 in subsection 174(1). This amendment is a consequence of the repeal of that Act
under the new military justice system (see Schedule 4 of this Bill).
Items 142 - Subsection 175(1) Evidence of fine etc.
307. This item removes the reference to `the Registrar' in subsection 175(1) as a
consequence of the abolition of the position of RMJ under the new military justice
system.
Item 143 - Paragraph 175(1)(a) Evidence of fine etc.
308. This item removes the reference to the Defence Force Discipline Appeals Act
in paragraph 175(1)(a). This amendment is a consequence of the repeal of that Act
under the new military justice system (see Schedule 4 of this Bill).
Items 144 - Subsection 175(2) Evidence of fine etc.
309. This item removes the reference to the `Registrar' in subsection 175(2) as a
consequence of the abolition of the position of RMJ under the new military justice
system.
Item 145 - After section 175 Release from custody pending approval of
punishments or dismissal from Defence Force
310. This item inserts a new section 175A after section 175 and provides a power
for a reviewing authority to authorise the release of a person from custody pending a
decision on review under Part VIIIA of the Defence Force Discipline Act 1982.
311. Section 172 provides for persons whose punishment is for imprisonment for
life or a specified period, detention or dismissal from the ADF to be kept in custody
pending the outcomes of the review. This power is necessary as the convicted person
will be unable to lodge an appeal to the Military Court until after the automatic review
is complete under section 152 of the Defence Force Discipline Act 1982, leaving the
person without any option but staying in custody. Subsection 171(1C) provides that a
person on whom a punishment of dismissal from the ADF is imposed may be kept in
custody until the dismissal takes effect.
49
312. Subsection 175A(1) sets out who the section applies to, being people kept in
custody under subsections 172(3A), (4) and (5) or under subsection 171(1C).
313. Subsection 175A(2) provides the power for a reviewing authority to release
one of these people from custody pending either the review decision or dismissal from
the Defence Force.
314. Subsection 175A(3) achieves two objectives. It provides the reviewing
authority with the power to impose conditions or restrictions and then to vary or
revoke these. It also provides a power for the CDF or a service chief to specify the
kinds of conditions or restrictions the reviewing authority can impose under this
subsection. The CDF or the service chief must specify these by instrument in writing.
The reviewing authority can only impose the kinds of conditions or restrictions
specified in the instrument and not any others. Subsection 175A(6) provides that this
instrument is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003 and is intended to assist readers only.
315. Subsection 175A(4) imposes an obligation on the reviewing authority to notify
the person of the condition or restriction (or the variation or revocation of such) as
soon as practicable.
316. Under subsection 175A(5), a person can be taken back into custody if they
breach a condition or restriction in force in relation to them. A condition or restriction
varied or revoked under subsection 175A(4) can only be taken to be in force once the
person has been notified of it.
Item 146 - Section 176 Stay of execution of punishment
317. This item replaces existing section 176 with a new section 176. Subsection
176(2) preserves the effect of existing section 176, by providing that where a service
tribunal has imposed a punishment on a convicted person and the convicted person
lodges a section 153 petition for review, the reviewing authority may order that the
execution of the punishment is to be stayed in whole or in part pending completion of
the review.
318. Subsection 176(1) is a new provision which ensures that 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 is to be stayed in whole or in part, pending the completion of the review
under that section. This power will only be needed for punishments that can take
effect before they are approved by the reviewing authority under Division 5 of
Part VIIIA.
319. Section 176 does not give a reviewing authority the power to order that the
execution of a punishment be stayed while a convicted person has instituted an appeal
to the Military Court. The Military Court will have this power under clause 57 of
Schedule 3B.
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Item 147 - Part XI (heading) Judge Advocate General and Deputy Judge
Advocates General
320. This item repeals the existing heading to Part XI--`Judge Advocate General
and Deputy Judge Advocates General, Chief Judge Advocate and Registrar of
Military Justice', and replaces it with a new heading `Part XI-- Judge Advocate
General and Deputy Judge Advocates General'. This amendment is a consequence of
the abolition of the positions of Chief Judge Advocate and RMJ under the new
military justice system (see Item 149 in Schedule 1 of this Bill). As the Chief Judge
Advocate's role was to provide an administrative supporting role to the Judge
Advocate General for courts martial and Defence Force magistrate trials, the position
is no longer required given these types of trials are expected to be rare.
Item 148 - Division 1 of Part XI (heading) Judge Advocate General and Deputy
Judge Advocates General
321. This item repeals the existing heading of Part XI, Division 1--`Judge
Advocate General and Deputy Judge Advocates General'. This Division heading is
not necessary because of the repeal of all other Divisions in this Part by Item 149 in
Schedule 1 of this Bill.
Item 149 - Divisions 2 (Chief Judge Advocate) and 3 (The Registrar of Military
Justice) of Part XI
322. This item repeals Divisions 2 and 3 of Part XI concerning the Chief Judge
Advocate and the RMJ. This amendment reflects the abolition of the positions of
Chief Judge Advocate and RMJ under the new military justice system. Transitional
arrangements have been provided for in Schedule 5 of this Act.
Item 150 - Paragraph 188GA(1)(a) Functions of the Director of Military
Prosecutions
323. This item repeals existing paragraphs 188GA(1)(a) and substitutes new
paragraphs 188GA(1)(aa) and (a) to reflect that the DMP's functions include
instituting and prosecuting matters in the new Military Court, and carrying on
prosecutions for service offences in proceedings before a court martial or a Defence
Force magistrate (in relation to the residual system).
Item 151 - Paragraph 188GA(1)(d) Functions of the Director of Military
Prosecutions
324. This item repeals paragraph 188GA(1)(d), which provides that one of the
functions of the DMP is to represent the service chiefs in proceedings before the
DFDAT. This amendment is a consequence of the abolition of the DFDAT (see
Schedule 4 of this Bill).
Item 152 - After section 188GA Minister may issue directions and guidelines
325. This item inserts a new section 188GAA after existing section 188GA to allow
the Minister for Defence to issue directions and guidelines to the DMP, following
consultation with the Attorney-General and the DMP. The Minister must cause a
copy of the direction or guideline to be published in the Gazette and a copy tabled
51
before each House of Parliament. The DMP is subject to such directions or guidelines
in performing its functions and exercising its powers.
326. This item is modelled on section 8 of the Director of Public Prosecutions Act
1983. Section 8 of that Act gives the Attorney-General the power to issue general
directions or guidelines to the Director of Public Prosecutions regarding the discharge
of the functions or the exercise of the powers of the office. Any modification of
section 8 reflected in section 188GAA of the Defence Force Discipline Act 1982 is
not intended to impact on the interpretation of section 8.
327. As in the civilian criminal justice context, it is expected that the power under
new section 188GAA will be used sparingly and in exceptional circumstances. The
new section is intended to provide the Government with a means by which it can
make its prosecutions and criminal law policies known to the DMP in a transparent
manner. To avoid compromising the statutory independence of the DMP, these
guidelines must be general in nature and may not relate to how a specific case is to be
conducted. Subsection 188GAA(6) provides that a direction or guideline is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments
Act 2003 and is intended to assist readers only.
Item 153 - Section 188GB Appearances by and on behalf of Director of Military
Prosecutions
328. This item includes a reference to the Military Court in the list of the kinds of
proceedings in which the DMP may appear. This amendment is a consequence of the
DMP's function in prosecuting charges in the new Military Court.
Items 154 and 155 - Paragraphs 188GJ(2)(b) and (c) Oath or affirmation
329. Item 151 repeals paragraph 188GJ(2)(c), which allows the DMP to make an
oath or affirmation before the Chief Judge Advocate. Item 150 corrects the
punctuation in paragraph 188GJ(2)(b) as a result of the repeal of paragraph
188GJ(2)(c). This amendment is a consequence of the abolition of the office of Chief
Judge Advocate.
Item 156 - At the end of Section 190 Jurisdiction of civil courts in relation to
offences
330. This item inserts a new subsection 190(5) to provide that, in section 190, the
references to `civil court' do not include the Military Court. This amendment is
necessary as the definition of `civil court' means a federal court or a court of State or
Territory. Section 190 provides that civil courts do not have jurisdiction to try service
offences. This amendment will ensure that the Military Court's jurisdiction to try
service offences is preserved.
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Item 157 - After section 190 Previous acquittal or conviction, Effect of conviction
(other than of certain disciplinary offences) by the Military Court, a court
martial or a Defence Force Magistrate, effect of conviction by a summary
authority and certain convictions by the Military Court, a court martial or a
Defence Force Magistrate, Representation of accused person
331. This item inserts new sections 190A, 190B, 190C and 190D after section 190.
332. New section 190A replaces (with some modifications) existing section 144,
which is repealed by Item 99 in Schedule 1 of this Bill.
333. Subsection 190A(1) ensures that if a person has already been acquitted or
convicted of a service offence in respect of an act or omission, the person cannot be
tried for the same, or substantially the same, service offence in respect of the act or
omission.
334. Subsection 190A(2) ensures that a person cannot be tried for the same, or
substantially the same, service offence that a court martial, Defence Force magistrate
or the Military Court has already taken into consideration under section 77(1) of the
Defence Force Discipline Act 1982 or subsection 154(1) of the Military Court Act.
335. Subsections 190A(3),(4),(5) and (6) largely replicate existing
subsections 144(3), (3A), (3B) and (4) without substantive changes other than to
remove references to previous service law.
336. New section 190B clarifies the obligations relating to disclosing or reporting a
conviction for a service offence where an obligation to report or disclose an `offence
against a law of the Commonwealth' is created by law.
337. New subsection 190B(1) provides that section 190B only applies to
convictions imposed by the Military Court, Defence Force magistrates or courts
martial, except in relation to convictions of certain disciplinary offences specified in
Schedule 7.
338. New subsection 190B(2) requires that where a conviction is recorded, it must
be recorded as a conviction for a service offence.
339. New subsection 190B(3) would enable a service chief or an authorised officer
to disclose the fact that a person has been convicted of a service offence, and provide
information relating to the conviction to a Commonwealth, State or Territory
authority for purposes connected with investigating, prosecuting or keeping records in
relation to offences against laws of the Commonwealth, the State or the Territory.
340. New subsection 190B(4) provides that for the purposes of complying with a
lawful requirement or authorisation to disclose that a person has been convicted of an
offence against a law of the Commonwealth that is a service offence, the disclosure
must expressly state that the offence is a service offence. The note to this subsection
states that Part VIIC of the Crimes Act 1914 exempts a person from having to disclose
a spent conviction.
341. New subsection 190B(5) provides that section 190B applies in relation to
convictions that occur after the commencement of this section.
53
342. New section 190C maintains the effect of existing subsection 3(15), which is
repealed by Item 30 in Schedule 1 of this Bill, in relation to convictions by summary
authorities for service offences or convictions of certain disciplinary offences
contained in Schedule 7.
343. New subsection 190C(1) limits the application of section 190C to convictions
by any summary authority or to convictions of certain disciplinary offences contained
in Schedule 7.
344. New subsection 190C(2) provides that these particular types of convictions are
for the purposes of ADF service only, precluding the requirement to disclose, report
or record the conviction for any other purpose.
345. New subsection 190C(3) provides that a person is not required to disclose
these convictions for any purpose (other than a service purpose), where there may be
a requirement to disclose a conviction for on offence against a law of the
Commonwealth.
346. The note to this subsection states that a person 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.
347. New subsection 190C(4) provides that subsections 190C(2) and (3) have effect
despite subsection 3A(1), which provides that for the purposes of any law of the
Commonwealth other than the Defence Force Discipline Act 1982 or the regulations,
a service offence is an offence against the law of the Commonwealth (see Item 31 in
Schedule 1 of this Bill).
348. New subsection 190C(5) provides that the section applies in relation to a
conviction whether it occurs before or after commencement of this section. The effect
of this provision would be expected to benefit an applicant.
349. New section 190D is modelled on existing subsections 137(2) and (3), which
are repealed by Item 90 in Schedule 1 of this Bill. Section 190D provides that
accused persons who are advised by a legal officer in relation to a proceeding by the
Military Court, a court martial or Defence Force magistrate, or represented at such a
proceeding by a legal officer, must be so advised or represented without expense to
the accused. In this section, a broad interpretation of `proceeding' should be adopted.
The term includes all proceedings relating to the trial, including interlocutory,
preliminary and appeal proceedings.
350. Subsection 190D(2) preserves the operation of any legal aid scheme that might
be available to the accused.
Item 158 - Paragraphs 191(1)(a), (b) and (c) Evidentiary certificate
351. This item removes paragraphs 191(1)(a), (b) and (c) and replaces them with
new paragraph 191(1)(a) and (b). New paragraph 191(1)(a) provides that an
authorised officer may issue a certificate setting out such facts as the authorised
officer considers relevant with respect to the acquittal or conviction of a person by a
54
service tribunal of a service offence. This ensures that an authorised officer may issue
a certificate concerning proceedings of service tribunals and not the proceedings of
the Military Court. As a service tribunal is not a court, it is necessary to retain a
mechanism for creating prima facie evidence in relation to service tribunals. New
paragraph 191(1)(b) updates the cross-references to existing sections 132 and 135, to
reflect their replacement with new clauses 14 and 28 of Schedule 3B (see Items 90
and 165 in Schedule 1 of this Bill).
Item 159 - Subsection 193(4) Protection of members of courts martial etc.
352. This item amends subsection 193(4) by removing the provision preventing the
bringing of an action, suit or proceedings against the Registrar or person assisting the
Registrar. This is a consequence of the abolition of the position of RMJ. The new
subsection 193(4) provides the same protections against an action, suit or proceeding
being brought against the DMP, or a superior authority. This is necessary as the
superior authority assumes the Registrar's function of convening courts martial and
referring charges to Defence Force magistrates under new section 103C(2)(c) (see
Item 73 in Schedule 1 of this Bill).
Item 160 - Section 194 Persons found to be of unsound mind
353. Section 194 relates to persons found to be of unsound mind and directed to be
kept in strict custody until the pleasure of the Governor-General is known. The repeal
of this section is a consequence of the replacement of the existing regime for dealing
with persons of unsound mind with the new regime. Under the new regime, persons
found to be of unsound mind will be treated similarly to persons found to be mentally
impaired under the Crimes Act 1914 (see clause 25 of Schedule 3B and new
subsection 158A in Items 165 and 120 of Schedule 1 of this Bill).
Item 161 - Section 195 Supply of record of proceedings
354. This item repeals section 195, and substitutes a new section 195. New
section 195 updates the existing provisions relating to the supply of record of
proceedings to make it easier to read. Subsection 195(1) and (2) provides a specific
mechanism by which an accused or convicted person, deceased person's legal
representative or approved person (in proceedings before a court martial or Defence
Force magistrate) may apply to a service chief or authorised officer for a copy of the
record of proceedings. Subsection 195(3) prevents a service chief or authorised officer
approving a person as the deceased's legal representative unless they are satisfied that
the deceased's legal personal representative has declined to make an application.
355. Subsection 195(4) requires a service chief or authorised person to give a copy
of the record if a person applies. Subsection 195(5) preserves prohibitions on
publication of a record, or parts of a record, where an order is made by the President
of the court martial or a Defence Force magistrate preventing publication (under
existing subsection 148(2) or new clause 33(2)(b) of Schedule 3B).
356. Time limits for applications to be made for access to the record of proceedings
have been removed.
55
357. Subsection 195(6) clarifies that the section does not affect the power of a civil
court to make an order for the discovery of documents or giving evidence in, or the
production of documents to, a civil court. The Military Court will be a civil court for
these purposes.
358. The provision does not affect the ability a person may have to access records
under the Freedom of Information Act 1982.
Item 162 - Subsection 196A(4) Annual report relating to Defence Force
discipline law
359. The item repeals existing subsection 196A(4), and replaces it with a new
subsection 196A(4). The new subsection provides that the requirement for the Judge
Advocate General to provide the Minister for Defence with an annual report on
Defence Force discipline law under section 196A does not relate to the decisions,
operation or management of the Military Court, or any other matters relating to it.
This is because the Chief Justice of the Military Court will be required to provide the
Attorney-General with an annual report on the management and administrative affairs
of the Military Court for tabling in Parliament under section 57 of the Military Court
Act.
Item 163 - Schedules 1A Certain disciplinary offences and 1 Corresponding
punishments
360. This item repeals Schedules 1A and 1. Schedule 1A provides a list of offences
in respect of which a person cannot elect to be tried by a court martial or Defence
Force magistrate, instead of a summary authority, under the existing system. The
amendments in this Act remove the existing restrictions on the right to elect to not be
tried by a summary authority, including if a person has been charged with an offence
under Schedule 1A. Under the new military justice system, all accused before a
summary authority have the right to elect to be tried by the Military Court on all
offences, with the exception of custodial offences or detainees committing offences
ancillary to custodial offences.
361. Schedule 1 provides the maximum punishments for certain old system
offences. This Schedule is repealed as a consequence of the discontinuance of old
service offence provisions (see Item 19 in Schedule 1 of this Bill). All proceedings in
respect of old system offences have been completed and no new proceedings for old
system offences can be instituted.
Item 164 - Schedule 3 Punishments that may be imposed by a summary
authority
362. This item repeals existing Schedule 3, which provides for the punishments
available to summary authorities, and substitutes a new Schedule 3. The new
Schedule 3 removes provisions for a two tier system of punishments and replaces it
with a single tier system.
363. As all accused will have the right to elect to be tried by the Military Court, the
current system to elect punishments offered by summary authorities is being
abolished. The current system allows summary authorities to offer the accused, at the
56
summary authority's discretion, a choice of trial by court martial or Defence Force
magistrate, or continued trial by summary authority with the elective punishments
available. The elective punishments are slightly harsher than the standard ones.
364. This amendment replaces the two tier system with a single scale of
punishments, with the new maximum punishments set at the maximum of the current
elective punishments.
Item 165 - After Schedule 3A Courts martial and Defence Force magistrates
365. This item inserts a new Schedule 3B--`Courts Martial and Defence Force
Magistrates', after Schedule 3A in the Defence Force Discipline Act 1982.
366. Courts martial and Defence Force magistrates will continue to be used in the
new military justice system for hearing trials for serious service offences when the
Military Court determines that it is necessary, but not possible, for it to sit overseas
(clause 51 of the Military Court of Australia Bill 2012). However, as this is expected
to occur very rarely, provisions relating particularly to courts martial and Defence
Force magistrate trials are moved to a new Schedule 3B of the Defence Force
Discipline Act 1982, with modifications to reflect the creation of the new Military
Court. This is to reflect the restricted operation of courts martial and Defence Force
magistrates under the new military justice system.
367. Provisions relating generally to service tribunals (courts martial, Defence
Force magistrates and summary authorities) are retained in the body of Defence Force
Discipline Act 1982. For example, Part VIII sets out the procedures of service
tribunals and Part VIIIA articulates requirements for the review of proceedings of
service tribunals. These parts have not been moved into this Schedule because they
relate generally to all service tribunals, including summary authorities.
368. Schedule 3B also sets out provisions for both the accused and the DMP to
appeal decisions of courts martial and Defence Force magistrates to the Military
Court.
Part 1--Courts Martial
369. Part 1 of Schedule 3B contains provisions for the trial of service offences by
courts martial, when the Military Court has determined that it is necessary for the
matter to be heard overseas, but that it is not possible for it to sit overseas. Division 1
provides for the convening of a court martial and its jurisdiction. Division 2 provides
for the membership of a court martial, Division 3 provides for trial by court martial,
Division 4 provides for the determination of questions by a court martial, and
Division 5 provides for the dissolution of a court martial.
Division 1--Convening a court martial and jurisdiction
Clause 1 - Convening order and appointment of court martial
370. This clause is based on the existing section 119 of the Defence Force
Discipline Act 1982.
57
371. Subclause 1(1) requires a superior authority to make an order convening a
court martial if the DMP directs the superior authority to do so. The statutory
authority for the DMP to direct a superior authority (potentially a more senior officer)
is contained in subparagraphs 103C(2)(c)(ii) and 103E(2)(c)(ii) of the Defence Force
Discipline Act 1982 and subclauses 19(6) and 31(4) of this Schedule. Where a
superior authority makes an order, they are then known as the `convening superior
authority'.
372. The superior authorities will take on the role currently performed by the RMJ.
The office of the RMJ is being abolished by this Act (see item 149 in Schedule 1 of
this Bill).
373. Subclause 1(2) provides that, in making an order convening a court martial,
the superior authority must appoint defence members to various roles in the court
martial and set, or provide for the setting, of the time and place for the court martial to
be assembled. In making appointments under this subclause, the relevant superior
authority may have regard to issues of availability of potential members or competing
operational requirements.
374. Subclause 1(3) requires the relevant service chief (being the chief of the
service of the accused) to make available any personnel appointed to the court martial
by order of the convening superior authority. This subclause replicates existing
subsection 129B(3) of the Defence Force Discipline Act 1982.
375. Subclause 1(4) provides for the convening superior authority to vary an order
convening the court martial or make an order to convene a new court martial. Before
doing so, the convening superior authority is required to consult with the DMP and
can only vary the order before the court martial assembles to try a charge.
376. Subclause 1(5) provides a statutory prohibition on any court martial being
convened otherwise than under this clause.
Clause 2 - Types of Court Martial
377. This clause is based on existing section 114 of the Defence Force Discipline
Act 1982.
378. Subclause 2(1) provides that a court martial can be either a general or
restricted court martial. Subclause 2(2) provides that a general court martial must
have a President and at least four (but possibly more) other members.
379. Subclause 2(3) provides that a restricted court martial must have a President
and at least two (but possibly more) other members.
380. Other than their constitution, the only difference between a general and
restricted court martial is that a general court martial can impose a wider range of
punishments on a convicted person than a restricted court martial.
Clause 3 - Jurisdiction of court martial
381. This clause is based on existing section 115 of the Defence Force Discipline
Act 1982. It sets out the jurisdiction of a court martial.
58
382. Subclause 3(1) provides for a court martial to try any charge against any
person, subject to section 63 of the Defence Force Discipline Act 1982 and to
subclause 3(3). `Charge' is defined in subsection 3(1) of the Defence Force
Discipline Act 1982 to mean a charge of a service offence. Service offences can only
be committed by ADF members or defence civilians, as set out in the specific offence
provisions in Part III of the Defence Force Discipline Act 1982.
383. Section 63, as amended, provides that proceedings may only be instituted in a
service tribunal (which includes a court martial) or the Military Court for certain
offences with the consent of the Director of Public Prosecutions. These are offences
which have serious criminal law equivalents, and include murder and manslaughter.
384. Subclause 3(2) also confers jurisdiction on a court martial to take action under
Part IV (Punishments and orders) if the court martial has been convened following a
direction from the DMP under subclause 19(6) (court martial dissolved after
conviction but before Part IV action) or paragraph 31(4)(d) (termination of reference
to a Defence Force magistrate after conviction but before Part IV action). The note to
this section states that the court martial must hear evidence prior to taking action
under Part IV.
385. Subclause 3(3) provides that a court martial does not have jurisdiction to try a
charge of a custodial offence. Custodial offences are defined in subsection 3(1) of the
Defence Force Discipline Act 1982, and jurisdiction to try custodial offences vests
with service tribunals other than courts martial or Defence Force Magistrates. This is
consistent with the Military Court, which also does not have jurisdiction to hear
custodial offences (subclause 63(2) of the Military Court of Australia Bill). Custodial
offences are provided in Division 6A and are offences committed while the person is
being detained in an ADF detention facility. It includes conduct such as making
unnecessary noise and committing a nuisance. These offences, given their less
serious nature, are to be exclusively tried by summary authorities.
Clause 4 - Accused person must be notified of making or variation of convening
order
386. This clause is based on existing section 120 of the Defence Force Discipline
Act 1982. The heading has been amended to clarify the requirement to notify the
accused where a convening order has been made or varied.
387. The clause requires the convening superior authority to give a copy of the
order convening, or varying an existing order to convene, a court martial to the
accused person. The convening superior authority is to do this as soon as practicable
after making the order.
Division 2--Membership of court martial
Clause 5 - Eligibility to be member of court martial
388. This clause is based on existing section 116 of the Defence Force Discipline
Act 1982. It sets out the eligibility requirements to be a member, reserve member or
the President of a court martial. For members and reserve members, subclause 5(1)
requires the person to have been an officer for a continuous or aggregate period of at
59
least three years and of equivalent or higher rank than the accused. Subclause 5(2)
sets minimum ranks required to be eligible to be the President. As a member of the
court martial, the President must also meet the eligibility criteria for members set out
in subclause 5(1).
389. Subclause 5(3) provides for an exception to the rules of eligibility to be
President of a court martial in situations where the President is replaced by the next
senior member of the court martial, under paragraph 10(1)(e) of Schedule 3B, or
where the next senior member of the court martial becomes the President because the
first President was unable to attend following a person's plea under subclause 11(1) of
Schedule 3B.
390. Subclause 5(4) outlines the only exception to the eligibility requirements
relating to the rank of a member or reserve member relative to the rank of the accused
(paragraph 5(1)(c) of Schedule 3B) and the rank of a President (subclause 5(2)). The
only reason which can be used to invoke this exception is based on the exigencies of
service.
Clause 6 - Eligibility to be judge advocate
391. This clause is based on existing section 117 of the Defence Force Discipline
Act 1982. It provides that to be eligible to be a judge advocate of a court martial, the
person must be a member of the judge advocates' panel. The judge advocates' panel
is created under section 196 of the Defence Force Discipline Act 1982, and is a panel
from which judge advocates and Defence Force magistrates are drawn to hear matters.
Clause 7 - Restrictions on appointment of members of courts martial
392. This clause is based on existing section 129B of the Defence Force Discipline
Act 1982. Subclause 7(1) prevents the convening superior authority from appointing
persons as a President, member, reserve member or judge advocate to a court martial
where the convening superior authority believes that the person might be, or might
reasonably be perceived to be, biased.
393. Subclause 7(2) prevents the appointment of a person as a judge advocate
unless the Judge Advocate General has nominated the person for that position.
Subsection 141(2) of the Defence Force Discipline Act 1982 provides for the accused
person to object to an appointment of a person to a court martial on the basis of
ineligibility or bias at any time before the court martial is sworn or affirmed.
Clause 8 - Notification of belief of bias
394. This clause is based on existing section 122 of the Defence Force Discipline
Act 1982. It imposes an obligation on a member or reserve member or the judge
advocate who believes themselves to be biased, likely to be biased or likely to be
perceived on reasonable grounds to be biased, to notify the convening superior
authority of that belief as soon as practicable after forming it. The President is
considered to be a member of the court martial and is, therefore, subject to this
requirement.
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Clause 9 - Substitution of members etc.
395. This clause is based on existing section 123 of the Defence Force Discipline
Act 1982. It allows for a convening superior authority to revoke an appointment of a
member, reserve member or judge advocate, and appoint another person in their place
at any time before the court martial is sworn or affirmed. This would also apply to the
President's appointment as they are considered to be a member of the court martial.
396. The same eligibility rules apply for the appointment of the substituted member
as apply to the original appointment.
Clause 10 - Replacement of members etc.
397. This clause is based on existing section 124 of the Defence Force Discipline
Act 1982. It requires the judge advocate to take certain action where they become
aware that a member is unavailable, uphold an objection of the accused person on the
grounds of bias (subsection 141(2) of the Defence Force Discipline Act 1982) or find
that a member should be excused for some other reason.
398. In these instances, the judge advocate must:
· appoint a reserve member as a member (if the member being replaced was not
the President)
· appoint the member next senior in rank to the President to be the President
(provided that member is not more than one rank junior to the President), or
· if the member was the President and there is more than one rank difference to
the next senior member, report the situation to the convening superior
authority and request the appointment of a new President.
399. Subclause 10(2) requires the judge advocate to report a situation where there
are insufficient members and reserve members to properly constitute the court martial
to the convening superior authority and request the appointment of new members and
reserve members.
400. The requirement in subclauses 10(1) and (2) only apply in the period after the
court martial has assembled but before it is sworn.
401. Subclause 10(3) requires a judge advocate who upholds an objection against
themselves on the basis of ineligibility or bias (subsection 141(2) of the Defence
Force Discipline Act 1982) to report the situation to a convening superior authority
and request the appointment of another judge advocate. The same eligibility rules
apply for the appointment of a new judge advocate as those applying to the original
appointment.
402. As an objection under subsection 141(2) of the Defence Force Discipline Act
1982 can be made at any time before the accused person is asked to plead at trial, the
requirement in subclause 10(3) is not linked to the assembly or swearing in or
affirmation of the court martial.
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Clause 11 - Inability to attend after plea
403. This clause is based on existing section 126 of the Defence Force Discipline
Act 1982. This clause provides for the President to be replaced if the President is
unable to attend at any time after the accused person's plea is recorded. Where this
occurs, the President who is to be replaced is prevented from taking any further part in
the proceedings.
404. Likewise, subclause 11(2) prevents a member of a court martial from taking
any further part in the proceeding if they are unable to attend at any time after the plea
has been recorded.
Division 3--Trial by court martial
Clause 12 - Application of this Division
405. This clause provides that Division 3 sets out certain provisions relating to trial
by court martial. The note to the clause confirms that this Division does not
exclusively outline the manner in which a trial by court martial is to be conducted.
Part 3 of Schedule 3B also contains provisions relating to procedure for trials. Other
provisions relating generally to service tribunals (courts martial, Defence Force
magistrates and summary authorities) are contained in Division 3 of Part VIII of the
Defence Force Discipline Act 1982.
Clause 13 - Plea of guilty or not guilty
406. This clause is based on existing section 132 of the Defence Force Discipline
Act 1982. It sets out the process for requesting a plea from the accused person in
relation to the charge and outlines what the court martial must do based on the plea.
407. Subclause 13(1) requires the judge advocate to ask the accused person whether
they plead guilty or not guilty before the court martial begins to hear the evidence on
the charge.
408. Subclauses 13(2) to (4) relate to pleas of guilty by the accused.
409. Subclause 13(2) requires the court martial to convict the accused person if the
accused person pleads guilty and the judge advocate is satisfied that the accused
person understands the effect of the plea.
410. Subclause 13(3) requires the court martial to record a plea of not guilty and
proceed to hear the evidence on the charge if the accused person pleads guilty and the
judge advocate is not satisfied that the accused person understands the effect of the
plea.
411. Subclause 13(4) sets out the requirements if the accused person pleads guilty
to a charge other than the first charge, where there are two or more charges which are
stated in the alternative. In this case, the court martial must accept the plea and
convict the accused person provided the DMP notifies the court martial they have no
objection to the acceptance of the plea. Otherwise, the court martial must record a
plea of not guilty and proceed to hear the evidence.
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412. Subclauses (5) to (7) relate to pleas of not guilty, a refusal to plead, or
withdrawal of a guilty plea by the accused.
413. Subclause 13(5) requires the court martial to record a plea of not guilty and
proceed to hear the evidence on the charge if the accused person pleads not guilty.
414. Subclause 13(6) applies where the accused person refuses to plead or does not
plead intelligibly. In this instance, the court martial must record a plea of not guilty
and proceed to hear the evidence on the charge.
415. Subclause 13(7) applies where the accused person pleads not guilty and later
withdraws that plea and pleads guilty, and the judge advocate is satisfied that the
accused person understands the effect of pleading guilty. In this case, the court
martial must substitute a plea of guilty for the plea of not guilty and proceed
accordingly under this clause by convicting the accused.
Clause 14 - Sufficiency of evidence
416. This clause is based on existing subparagraphs 132(1)(c) and (d) and
subsection 132(4) of the Defence Force Discipline Act 1982. This clause outlines
what a court martial must do based on rulings of the judge advocate about sufficiency
of evidence following the prosecution adducing its evidence on the charge.
417. Subclause 14(1) requires the court martial to dismiss a charge if the judge
advocate rules that the evidence is insufficient to support the charge.
418. Subclause 14(2) requires the court martial to proceed with the trial if the Judge
Advocate rules the evidence is sufficient to support the charge.
419. Subclause 14(3) only mandates the judge advocate to give a ruling about the
insufficiency of evidence if the accused person has submitted that the judge advocate
should so rule or the ruling is required in the interests of justice. The judge advocate
is not prevented from making such a ruling in other circumstances.
420. Subclause 14(4) only requires the judge advocate to rule that there is sufficient
evidence to support the charge if the accused person submits the judge advocate
should rule the evidence is insufficient to support the charge and the judge advocate
considers the evidence to be sufficient. This ensures that if the accused person
submits that the judge advocate should rule on the insufficiency of the evidence, the
accused person can be left in no doubt as to the judge advocate's views as to the
sufficiency, or otherwise, of the evidence.
Clause 15 - Finding of guilty or not guilty
421. This clause is based on existing subparagraphs 132(1)(e) and (f) of the
Defence Force Discipline Act 1982. It requires the court martial to convict an
accused upon a finding that the accused person is guilty, and acquit an accused person
upon a finding that the accused person is not guilty.
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Clause 16 - Action after conviction
422. This clause is based on existing subparagraph 132(1)(g) of the Defence Force
Discipline Act 1982. This clause provides that, where a court martial convicts a
person, it must take action under Part IV (Punishments and orders) in relation to the
convicted person.
423. Subclause 16(2) requires the court martial to hear any evidence relevant to the
determination of what action should be taken to impose punishments or make orders
under Part IV.
Division 4 --Determination of questions etc.
Clause 17 - Determination of questions by court martial
424. This clause is based on existing section 133 of Defence Force Discipline Act
1982. It sets out how questions must be determined by the court martial.
425. Subclause 17(1) provides for the President to preside in a court martial and for
every question to be determined by the members of the court martial. This is subject
to the operation of clause 18 (Powers of judge advocate).
426. Taken together, subclauses 17(2), (3), (4) and (5) provide that each question
must be decided by the majority of members. Where votes are equal on the question
of whether the accused person is guilty or not guilty, the court martial must find the
accused person not guilty. In addition, where votes are equal on whether the accused
was mentally impaired at the time of the conduct the subject of the charge, the court
martial must find the person was suffering from that mental impairment. These
provisions provide for a determination in favour of the accused person where votes
are equal on these matters. In all other cases, for example about punishments, the
President has the casting vote.
427. Subclause 17(6) requires the members to sit without any other person present
when determining questions about the guilt or otherwise of the accused person
(including whether the accused was suffering from a mental impairment at the time of
the relevant act or omission) or in determining what punishment or orders to make
following conviction. This provision prevents the suggestion of outside influence on
their deliberations that could be made were those deliberations not secret.
Clause 18 - Powers of judge advocate
428. This clause is based on existing section 134 of the Defence Force Discipline
Act 1982. This clause sets out the powers of the judge advocate in a court martial.
429. Subclause 18(1) requires the judge advocate to make such rulings and exercise
any discretion which would be given or exercised by a judge in a trial by jury, in
accordance with the law in force in the Jervis Bay Territory.
430. Subclause 18(2) provides for the judge advocate to sit without the members of
the court martial when exercising any discretions or giving any rulings if a judge in a
trial by jury in the Jervis Bay Territory would sit in the absence of the jury in making
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the same kinds of rulings or exercising the same kinds of discretions, in accordance
with the law in force in that Territory.
431. Subclause 18(3) preserves the role of the members of the court martial in
imposing punishments or making orders following a conviction, and the role of the
judge advocate in giving rulings of law arising from a court martial's determination of
what punishment to impose or order to make. In the Jervis Bay Territory, both these
functions would be exercised by the Judge alone.
432. Subclause 18(4) provides for certain rulings of the judge advocate to be
binding on the court martial. These are rulings under subclauses 18(1) and (3)
outlined above, rulings in relation to an application for adjournment or objections to
the charge under subsections 141(5) or (6) of the Defence Force Discipline Act 1982,
or rulings which grant an application for the charge to be tried by the Military Court
(subclause 20(2) of this Schedule).
433. Subclause 18(5) allows the judge advocate to exercise such powers of the
court martial or the President of the court martial as are necessary for the performance
of their duties if it is sitting without the members of the court martial. An example
where this may be necessary may include, but is not limited to, a process similar to a
`voir dire' in civilian criminal proceedings.
434. Subclause 18(6) provides that the powers conferred on the judge advocate
under this item are in addition to other powers conferred by the Defence Force
Discipline Act 1982, the regulations or the rules of procedure.
Division 5--Dissolution of court martial
Clause 19 - General provisions
435. This clause is based on existing section 125 of the Defence Force Discipline
Act 1982.
436. Subclause 19(1) gives the judge advocate power to direct the convening
superior authority to dissolve the court martial where he or she considers that it is
desirable to do so. This may be due to the exigencies of service or for any other
reason. Examples of such circumstances may include, but are not limited to, the ill
health of members. This power only exists after the court martial is assembled but
before it is sworn or affirmed.
437. Subclause 19(2) requires the judge advocate to direct the convening superior
authority to dissolve the court martial if the judge advocate considers it is in the
interests of justice to do so. This requirement only applies after the court martial is
sworn or affirmed.
438. Subclause 19(3) requires the convening superior authority to dissolve a court
martial in two circumstances. The first is that, after the court martial is sworn or
affirmed, there is an insufficient number of members to properly constitute the court
martial. The second circumstance is that the judge advocate is unable to attend at any
time after the accused person's plea has been recorded.
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439. Subclause 19(4) requires the judge advocate to direct the convening superior
authority to dissolve the court martial if the court martial has adjourned the
proceedings and the judge advocate considers that it will not be practicable to
continue the hearing at a later date due to the exigencies of service.
440. Subclause 19(5) provides that, if a court martial is dissolved under this clause,
the convening superior authority must refer the charge to the DMP. The DMP then
has a range of options, including, but not limited to, directing that the charge not be
proceeded with, directing a superior authority to convene a new court martial or
instituting a proceeding in the Military Court (see new section 103E inserted by
Item 73 in Schedule 1 of this Bill). Given the court martial will only have been
convened where the Military Court determined it necessary, but not possible, to hear
the trial overseas, it is expected the DMP would not institute proceedings in the
Military Court following a dissolution of a court martial unless circumstances had
changed such that it was reasonably expected that the Military Court would now be
able to hear the trial (whether in Australia or overseas).
441. Subclause 19(6) provides that, if a court martial is dissolved after convicting a
person but before taking action under Part IV (Punishments and orders), the DMP
may direct the convening superior authority to convene another court martial to take
action under Part IV. Subclause 19(7) requires the new court martial to hear any
evidence relevant to the determination of what punishment should be imposed or what
order should be made under Part IV.
442. Subclause 19(8) provides that a member of a court martial who convicted a
person is not to be taken to be biased for the purpose of convening a new court martial
to take action under Part IV following a direction under subclause 19(6).
Clause 20 - Application for charge to be tried by the Military Court
443. This clause allows the accused person to apply for the court martial to be
dissolved due to a change of circumstances which make it possible for the charges to
be tried by the Military Court. However, this application may only be made prior to
the accused person entering a plea. The court martial will only have been convened
as a result of a decision by the Military Court that it was necessary to sit outside
Australia for the trial but it was not possible to do so (clause 51 of the Military Court
of Australia Bill). A change in circumstances could be either that it is no longer
necessary for the Military Court to sit outside of Australia, or that it is now possible
for it to do so where it was not previously.
444. Subclause 20(2) provides that the judge advocate must grant the application
and direct the convening superior authority to dissolve the court martial if the judge
advocate 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 (whether in or outside
Australia).
445. Subclause 20(3) requires a convening superior authority to refer the charge or
charges to the DMP where it dissolves a court martial under subclause 20(2). The
DMP can either direct that the charge not be proceeded or institute a proceeding in the
Military Court (see new subsections 103E(4) and (5) inserted by Item 73 in
Schedule 1 of this Bill).
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Part 2--Defence Force magistrates
446. Part 2 of Schedule 3B contains provisions for the trial of service offences by a
Defence Force magistrate, when the Military Court has determined that it is
necessary, but not possible, for it to sit overseas. Division 1 provides for the referral
of a charge or case to a Defence Force magistrate. Division 2 provides for trial by a
Defence Force magistrate. Division 3 provides for the discontinuance of Defence
Force magistrate proceedings.
Division 1 - Referral of charge to Defence Force magistrate etc.
Clause 21 - Referral of charge or case to Defence Force magistrate
447. This clause is based on existing subsection 129(2) of the Defence Force
Discipline Act 1982, and sets out when a superior authority must refer a charge to a
Defence Force magistrate for trial.
448. Subclause 21(1) requires a charge must be referred to a Defence Force
magistrate if the DMP directs the superior authority to do so, following either a
decision by the Military Court that it is necessary, but not possible, for it to sit outside
of Australia under clause 51 of the Military Court of Australia Bill 2012, or the
dissolution of a court martial or discontinuance of a proceeding before a Defence
Force magistrate.
449. Subclause 21(2) requires a charge to be referred to a Defence Force magistrate
if the DMP directs the superior authority to do so following the discontinuance of
proceedings before a Defence Force magistrate after conviction but prior to action
being taken under Part IV (Punishments and orders).
450. Subclause 21(3) provides that a charge or case can only be referred to a
Defence Force magistrate under this clause.
Clause 22 - Judge Advocate General to nominate Defence Force magistrate
451. This clause is based on existing section 129C of the Defence Force Discipline
Act 1982. This clause requires the Judge Advocate General to nominate a Defence
Force magistrate to try a charge before the superior authority can refer a charge to the
Defence Force Magistrate. The same requirement must be met before the superior
authority can refer a case to a Defence Force magistrate to take action under Part IV
(Punishments and orders).
Clause 23 - Jurisdiction and powers of Defence Force magistrate
452. This clause is based on existing section 129 of the Defence Force Discipline
Act 1982. Subclause 23(1) confers on a Defence Force magistrate the same
jurisdiction and powers as a restricted court martial (including the powers of the judge
advocate of a restricted court martial). This means that Defence Force magistrates
have more limited options for punishments than a general court martial.
453. Subclause 23(2) also confers jurisdiction to take action under Part IV
(Punishments and orders) if the case was referred to the Defence Force magistrate
under subclause 21(2) of this Schedule (proceedings before a Defence Force
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magistrate discontinued after conviction but before Part IV action is taken). The note
to the clause clarifies that, if a case is referred to a Defence Force magistrate because
of a direction under subclause 21(2), the Defence Force magistrate must hear
evidence before taking action under Part IV.
Clause 24 - Appointment of Defence Force magistrate
454. This clause is based on existing section 127 of the Defence Force Discipline
Act 1982. This clause provides for the Judge Advocate General to appoint an officer
to be a Defence Force magistrate by instrument in writing. It also limits eligibility for
appointment as a Defence Force magistrate to officers who are members of the judge
advocates' panel. Section 196 of the Defence Force Discipline Act 1982 provides for
there to be a judge advocates' panel. The judge advocates' panel is a panel from
which judge advocates and Defence Force magistrates are drawn to hear matters.
Clause 25 - Oath or affirmation of Defence Force magistrate
455. This clause is based on existing section 128 of the Defence Force Discipline
Act 1982. This clause requires a Defence Force magistrate to make and subscribe an
oath or affirmation in accordance with the form in Schedule 4, before the Defence
Force magistrate can proceed to discharge the duties of their office.
456. Subclause 25(2) requires the oath or affirmation to be made before the Judge
Advocate General or an officer authorised by the Judge Advocate General, in writing,
for that purpose.
Division 2--Trial by Defence Force magistrate
Clause 26 - Application of this Division
457. This Division is based on existing section 135 of Defence Force Discipline Act
1982. Clause 26 explains that this Division sets out certain provisions relating to trial
by Defence Force magistrate. The note confirms that this Division does not
exclusively outline the manner in which a trial by Defence Force magistrate is to be
managed. Part 3 of Schedule 3B outlines procedure for trials. Other provisions
relating generally to service tribunals (courts martial, Defence Force magistrates and
summary authorities) are contained in Division 3 of Part VIII of the Defence Force
Discipline Act 1982.
Clause 27 - Plea of guilty or not guilty
458. This clause is based on existing section 135 of the Defence Force Discipline
Act 1982. It sets out the process for requesting a plea from the accused person in
relation to the charge and outlines what the Defence Force magistrate must do based
on the plea.
459. Subclause 27(1) requires the Defence Force magistrate to ask the accused
person whether they plead guilty or not guilty before the Defence Force magistrate
begins to hear the evidence on the charge.
460. Subclauses 27(2) to (4) relate to pleas of guilty by the accused.
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461. Subclause 27(2) requires the Defence Force magistrate to convict the accused
person if the accused person pleads guilty and the judge advocate is satisfied that the
accused person understands the effect of the plea.
462. Subclause 27(3) requires the Defence Force magistrate to record a plea of not
guilty and proceed to hear the evidence if the accused person pleads guilty and the
judge advocate is not satisfied that the accused person understands the effect of the
plea.
463. Subclause 27(4) sets out the requirements if the accused person pleads guilty
to a charge other than the first charge, where there are two or more charges which are
stated in the alternative. In this case, the Defence Force magistrate must accept the
plea and convict the accused person, provided that the DMP notifies the Defence
Force magistrate that they have no objection to the acceptance of the plea. Otherwise,
the Defence Force magistrate must record a plea of not guilty and proceed to hear the
evidence.
464. Subclauses 27(5) to (7) relate to pleas of not guilty, a refusal to plead or
withdrawal of a guilty plea by the accused.
465. Subclause 27(5) requires the Defence Force magistrate to record a plea of not
guilty and proceed to hear the evidence on the charge if the accused person pleads not
guilty.
466. Subclause 27(6) applies where the accused person refuses to plead or does not
plead intelligibly. In these circumstances, the Defence Force magistrate must record a
plea of not guilty and proceed to hear the evidence on the charge.
467. Subclause 27(7) applies where the accused person pleads not guilty, later
withdraws that plea and pleads guilty, and the judge advocate is satisfied that the
accused person understands the effect of pleading guilty. In this case, the Defence
Force magistrate must substitute a plea of guilty for the plea of not guilty and proceed
accordingly under this clause by convicting the accused.
Clause 28 - Sufficiency of evidence
468. This clause is based on existing section 135 of the Defence Force Discipline
Act 1982. This clause outlines what a Defence Force magistrate must do based on
findings about the sufficiency of evidence following the prosecution adducing its
evidence on the charge.
469. Subclause 28(1) requires the Defence Force magistrate to dismiss a charge if it
rules that the evidence is insufficient to support the charge.
470. Subclause 28(2) requires the Defence Force magistrate to proceed with the
trial if it rules that the evidence is sufficient to support the charge.
471. Subclause 28(3) only mandates the Defence Force magistrate to give a ruling
about the insufficiency of evidence if the accused person has submitted that the
Defence Force magistrate should so rule or the ruling is required in the interests of
justice. Subclause 28(4) only requires the Defence Force magistrate to rule that there
is sufficient evidence to support the charge if the accused person submits the Defence
69
Force magistrate should rule the evidence is insufficient to support the charge and the
Defence Force magistrate considers the evidence to be sufficient. This ensures that if
the accused person submits that the Defence Force magistrate should rule on the
insufficiency of the evidence, the accused person can be left in no doubt as to the
Defence Force magistrate's views as to the sufficiency or otherwise of the evidence.
Clause 29 - Finding of guilty or not guilty
472. This clause is based on existing section 135 of the Defence Force Discipline
Act 1982. It requires the Defence Force magistrate to convict an accused person
whom a Defence Force magistrate has found guilty, and acquit an accused person
whom the Defence Force magistrate has found not guilty.
Clause 30 - Action after conviction
473. This clause is based on existing section 135 of the Defence Force Discipline
Act 1982. This clause provides that where a Defence Force magistrate convicts a
person, it must take action under Part IV (Punishments and orders) in relation to the
convicted person.
474. Subclause 30(2) requires the Defence Force magistrate to hear any evidence
relevant to the determination of the action that should be taken to impose punishments
or make orders under Part IV.
Division 3--Discontinuance of proceeding
Clause 31 - General provisions
475. This clause is based on existing section 129A of the Defence Force Discipline
Act 1982. It provides for a superior authority to terminate references to a Defence
Force magistrate in certain circumstances and outlines the consequences of doing so.
476. Paragraph 31(1)(a) requires the superior authority to terminate the reference to
a Defence Force magistrate where they consider it is desirable to do so by reason of
the exigencies of service or for any other reason. This power only exists before the
Defence Force magistrate begins to try the charge.
477. Paragraph 31(1)(b) requires the superior authority to terminate the reference if
it appears to the Defence Force magistrate that it would not be in the interests of
justice to continue, and the Defence Force magistrate directs the superior authority to
terminate the reference. This power applies after the Defence Force magistrate begins
to try the charge or hear the case.
478. Subclause 31(2) requires the superior authority to terminate the reference if, at
any 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 or hearing. Reasons for
this include, but are not limited to, death, illness and the exigencies of service.
479. Subclause 31(3) provides that, if a reference to a Defence Force magistrate is
terminated under subclause (1) or (2), the superior authority must refer the charge to
the DMP. The DMP then has a range of options, including, but not limited to,
directing that the charge not be proceeded with, directing a superior authority to
70
convene a new court martial or instituting a proceeding in the Military Court (see new
section 103E inserted by Item 73 in Schedule 1 of this Bill). The reference to the
Defence Force magistrate would only have occurred because the Military Court
determined it necessary, but not possible, to hear the trial overseas. It is expected the
DMP would not institute proceedings in the Military Court following a termination of
reference unless circumstances had changed such that it was reasonably expected that
the Military Court would now be able to hear the trial (whether in Australia or
overseas).
480. Subclause 31(4) provides that, if a reference is terminated after convicting a
person, but before taking action under Part IV (Punishments and orders), the DMP
may direct the superior authority to refer the charge or case to a new Defence Force
magistrate, or convene a court martial for the purpose of taking Part IV (Punishments
and orders) action where the DMP considers that it would be more appropriate for the
matter to be dealt with by court martial.
481. Subclause 31(5) requires a court martial or Defence Force magistrate, which
exists because of the application of subclause 31(4), to hear any evidence relevant to
the determination of the action prior to taking action in accordance with subclause
31(4).
482. Subclause 31(6) provides that a reference to a superior authority (the `first
superior authority') in this clause includes a superior authority who replaces the first
superior authority. A superior authority may be replaced in the case of promotion or
postings.
Clause 32 - Application for charge to be tried by the Military Court
483. This clause provides for the accused person to apply for the reference to the
Defence Force magistrate of the first charge to be terminated due to a change of
circumstances which makes it possible for the charges to be tried by the Military
Court. The reference to the Defence Force magistrate will only have been made as a
result of a decision by the Military Court that it was necessary for it to sit outside
Australia for the trial but it was not possible to do so (clause 51 of the Military Court
of Australia Bill). The change in circumstances could relate to circumstances in
which it is no longer necessary for the Military Court to sit outside of Australia, or
that it is now possible for it to do so where it was not previously.
484. Subclause 32(2) provides that the Defence Force magistrate must grant the
application and direct the superior authority to terminate the reference if 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 (whether in or
outside of Australia).
485. Subclause 32(3) requires a superior authority to refer the charge to the DMP
where it terminates a reference to a Defence Force magistrate under subclause 32(2).
The DMP can either direct that the charge not be proceeded or institute a proceeding
in the Military Court (see subsections 103E(4) and (5) inserted by Item 73 in
Schedule 1 of this Bill).
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Part 3--Procedure for trials
Division 1--General provisions for trials
Clause 33 - Public hearings
486. This clause is based on existing section 140 of the Defence Force Discipline
Act 1982. Subclause 33(1) provides that, subject to this clause, the hearing of
proceedings before a court martial or a Defence Force magistrate must be in public.
`Public' is to be read widely to include not only other ADF members, but also
non-ADF members. This is consistent with clause 56 of the Military Court of
Australia Bill, which provides that the court's jurisdiction is generally to be exercised
in open court (subject to limited exceptions).
487. Subclause 33(2) gives the President of a court martial or a Defence Force
magistrate power to order that some or all of the members of the public be excluded
from all or a specific part of the proceedings, or, that no report of, or about, the whole
or a specific part of the proceedings be published. The President or Defence Force
magistrate can only make these orders if they consider it necessary in the interests of
the security or defence of Australia, the proper administration of justice or public
morals. Subsection 33(3) requires the President of a court martial to first consult with
the judge advocate prior to making an order under subclause 33(2). Subsection 33(4)
provides that, if court martial or Defence Force magistrate proceedings are held in a
secure place, the appropriate service chief (being the service chief from the same
service as the accused) must make arrangements to allow the public to have
reasonable access to the proceeding, subject to any order made under subclause 33(2).
Subsection 33(5) provides that, for the purpose of subclause 33(4), secure place
means a place where entry is controlled by guards who are constables or members of
the Defence Force.
Clause 34 - Unfitness to be tried
488. This clause replaces existing subsection 145(2) of the Defence Force
Discipline Act 1982, which provides that if a court martial or Defence Force
magistrate finds a person unfit to be tried, they must direct that the person be kept in
strict custody until the pleasure of the Governor-General is known.
489. This clause provides that, if it appears to a court martial or Defence Force
magistrate that a person may not be able to understand the proceedings against him or
her and accordingly may be unfit to be tried, the court martial or Defence Force
magistrate must refer the charge to the DMP. The DMP can either direct that the
charge not be proceeded with or institute a proceeding in the Military Court (see
subsections 103E(4) and (5) inserted by Item 73 in Schedule 1 of this Bill). The
provisions for the Military Court to deal with persons found unfit to be tried are
aligned with provisions of the Crimes Act 1914 (see Part 10 of the Military Court of
Australia Bill).
Clause 35 - Mental impairment at the time of conduct constituting service offence
490. This clause replaces existing subsections 145(4) and (5) of the Defence Force
Discipline Act 1982, which provides that if a court martial or Defence Force
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magistrate finds a person was suffering from mental impairment at the time of
committing the offence, they must acquit the accused and direct that the accused be
kept in strict custody until the pleasure of the Governor-General is known.
491. Subclauses 35(1), (2) and (3) relate to prescribed acquittals. Subclause 35(1)
provides that if a court martial or Defence Force magistrate finds a person was
suffering mental impairment at the time of committing the offence, they must find the
accused not guilty of the service offence because of mental impairment and acquit the
accused.
492. Subclause 35(2) applies the definition of `mental impairment' in section 7.3 of
the Criminal Code for the purpose of a proceeding before a court martial or Defence
Force magistrate. Subsection 7.3(4), which requires the prosecution to seek the leave
of court to rely on section 7.3, applies as if the reference to `court' were instead a
reference to court martial or Defence Force magistrate, as the case may be.
493. Subclauses 35(3) to (4) provide for the court martial or Defence Force
magistrate to deal with the accused person in the same way as the Military Court
under Part 10 of the Military Court Act of Australia Act 2012, subject to some
modifications.
494. Subclause 35(3) provides that the court martial or Defence Force magistrate
may, by order, release the person, release the person subject to certain conditions (not
exceeding three years), or may make any other order it considers necessary having
regard to the best interests of the accused person, the safety of any other person to
whom the order relates and the safety of the community generally. Examples of such
orders may include, but are not limited to, orders requiring a person to remain at a
certain location, or not to leave a certain geographic area. An order should not be
made for detention of a person.
495. Subclause 35(4) provides that an order under paragraph 35(3)(b) must specify
the period it is to have effect, which must not be more than three years.
496. Subclauses 35(5), (6) and (7) provide a mechanism by which an order of a
court martial or Defence Force magistrate relating to a prescribed acquitted person
may be varied or set aside. Subclause 35(5) provides that the DMP or person to
whom the order relates may apply for an order to be varied or set aside. Under
subclauses 35(6) and (7), an application to vary or set aside must be made to a service
chief (if the acquitted person is a defence member at the time of application) or the
Attorney-General (in any other case), who may then vary or set aside the order. This
provides recourse to persons who are no longer members of the ADF.
497. The discretion granted to the Attorney-General or service chief allows for
flexibility if a person's circumstances change. Decision making would involve
varying or setting-aside of an order made by a court martial or Defence Force
magistrate arising from a decision to acquit a person on the basis of consideration of a
person's mental capacity, which would otherwise remain in force. The
Attorney-General or service chief (as the case may be) may independently consider
the appropriateness of the order at the time of an application.
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Clause 36 - Notice of alibi
498. This clause is based on existing section 145A of the Defence Force Discipline
Act 1982. It sets out requirements for the accused person if they seek to rely on an
alibi as part of their defence in either a court martial or a Defence Force magistrate
trial. It also imposes a requirement on the superior authority to notify the accused of
these requirements.
499. Subclause 36(1) requires a superior authority which convenes a court martial
or refers a charge to a Defence Force magistrate to give a copy of this clause to the
accused and inform them of the requirements set out in subclauses 36(2), (3) and (5).
The requirement to inform would go beyond merely providing them with a copy of
those clauses.
500. Subclause 36(2) imposes an obligation on the accused to give notice of the
particulars of the alibi within 14 days of the order convening the court martial or
referring the charge to a Defence Force magistrate. If this is not done, the accused
will need leave of the judge advocate or the Defence Force magistrate to adduce
evidence in support of an alibi or to assert, other than on oath or affirmation, that they
have an alibi. Subclause 36(5) requires any notice under this clause to be given in
writing to the DMP and the superior authority.
501. Where an accused person wishes to call a person to give evidence in support
of an alibi, subclause 36(3) imposes certain requirements. Ideally, the accused will
provide the name and address of the person in the notice under subclause 36(2). If
this is not possible, they must provide all information they have which may be of
assistance in identifying and locating the person.
502. Paragraph 36(3)(b) imposes an additional requirement that if the witnesses'
name and address is not provided, the accused must satisfy the judge advocate or
Defence Force magistrate that they took all reasonable steps to identify the person
before they are able to be called as a witness. If they do not, leave will be required to
call the person to give evidence in support of the alibi.
503. Paragraph 36(3)(c) also imposes an obligation on the accused to provide
information about an alibi witnesses' name and address or other information which
might help with identifying a person within a reasonable time, if it was not provided
when the notice under subclause 36(2) was filed, but later becomes known.
504. Paragraph 36(3)(d) requires the accused person to assist the prosecution if the
information about name and address previously provided does not lead to finding the
person.
505. Subclause 36(4) allows the DMP to adduce evidence to disprove an accused's
alibi either before or after evidence is adduced of the alibi. This is subject to any
direction by the judge advocate or a Defence Force magistrate.
506. Subclause 36(6) sets out the definition of `evidence in support of an alibi' for
the purpose of this clause.
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Clause 37 - Rules of evidence etc.
507. This clause is based on existing section 146 of the Defence Force Discipline
Act 1982. The rules of evidence applicable to proceedings before a court martial or
Defence Force magistrate will be the rules of evidence that apply in relation to
proceedings before the Military Court. These rules are the Evidence Act 1995 and
Parts 2, 4 and 4A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
508. Part 2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides
protections for children giving evidence in proceedings. Part 4 of that Act provides
various rules relating to sexual and violent offences. Part 4A of that Act allows
children and witnesses with a mental disability to be accompanied by a support person
when giving evidence.
509. It is appropriate that the same rules of evidence apply in courts martial or
Defence Force magistrate trials as in the Military Court, given those service tribunals
will only be hearing the trial as a result of the Military Court determining that it could
not.
Clause 38 - Representatives of parties before court martial or Defence Force
magistrate
510. This clause is based on existing section 136 of the Defence Force Discipline
Act 1982 and sets out who can represent a party before a court martial or Defence
Force magistrate.
511. A party in a trial can only be represented by a member of the Defence Force, a
legal practitioner (defined in the Defence Force Discipline Act 1982 to mean a person
who is enrolled as a barrister, a solicitor, a barrister and solicitor, or a legal
practitioner of a civil court), or a person qualified to practice before the courts of the
place where the trial is to be held (outside Australia).
Division 2--Use of video links and audio links
512. The intention of the provisions under this Division is to facilitate the most
effective and efficient collection of evidence that will enable a fair outcome for the
accused and minimal inconvenience to witnesses or parties to the proceedings. This
clause applies regardless of whether the person giving testimony is in or outside of
Australia (subclause 39(5)).
Clause 39 - Testimony by video link or audio link
513. This clause is based on existing section 148A of the Defence Force Discipline
Act 1982.
514. Subclause 39(1) enables the President of a court martial or a Defence Force
magistrate to direct or allow a testimony to be given by video or audio link.
Subclause 39(4) provides that the power to allow evidence to be collected in this
manner may be exercised either on application by the accused or the DMP, or on the
President or Defence Force magistrate's own initiative. Subclause 39(5) provides that
the clause applies whether the person giving testimony is in or outside Australia.
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515. Subclause 39(2) provides that testimony given by video or audio link is to be
given on oath or affirmation unless the person giving the testimony is in a foreign
country and either the law of that country does not permit the person to give
testimony on oath or affirmation or the law makes it inconvenient for the person to do
so. The President or Defence Force magistrate also needs to be satisfied that it is
appropriate for the person to give testimony without an oath or affirmation.
Subclause 39(3) provides that, where the testimony is given without oath or
affirmation, the court martial or Defence Force magistrate is to give that testimony
such weight as they consider fit in the circumstances.
Clause 40 - Appearance by persons or submissions made by video link or audio link
516. This clause is based on existing section 148B of the Defence Force Discipline
Act 1982. The clause provides for the appearance of persons or submissions to be
made by video or audio link. The President of a court martial or a Defence Force
magistrate may direct or allow a person to appear in this manner either on application
by the accused or the DMP, or on its own initiative. This clause applies whether the
person is in or outside Australia.
Clause 41 - Conditions for use of video links and audio links
517. This clause is based on existing section 148C of the Defence Force Discipline
Act 1982, and outlines conditions associated with evidence collection through video
link and audio link. The concept of a `remote person' has been introduced, meaning a
person who is not physically present, but who may give testimony, appear or make a
submission by video or audio link. The concept of an `eligible person' has also been
included to mean a person that the court martial or Defence Force magistrate
considers eligible to hear and/or see the evidence for the purposes of the proceedings.
518. Subclauses 41(1) and (3) provide that the President of a court martial or
Defence Force magistrate must not direct or allow testimony to be given or
appearance of a person by video link or audio link unless they are satisfied that
specific conditions are met. The conditions in this clause include that appropriate
courtroom or other facilities are in place (for example television monitors or
loudspeakers) so that all eligible persons may see and/or hear the remote person and
that all eligible persons located where the remote person is can see and/or hear the
courtroom or other place where the court martial or Defence Force magistrate trial is
sitting.
519. The clause also requires any conditions that are prescribed by the rules of
procedure or any other conditions imposed by the court martial or Defence force
magistrate to be met.
Clause 42 - Putting documents to a person by video link or audio link
520. This clause is based on existing section 148D of the Defence Force Discipline
Act 1982. The clause outlines how documents may be put to a remote person in
circumstances where the document is either present in the courtroom or at the remote
person's location. If the document is in the courtroom and needs to be put to the
remote person at another location, it can be transmitted (for example, via fax or
electronically) and then put to the remote person. If the document is present in the
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remote person's location, the opposite applies - the document will be physically put
to them and then transmitted to the courtroom where the proceedings are taking place.
Clause 43 - Administration of oaths and affirmations
521. This clause is based on existing section 148E of the Defence Force Discipline
Act 1982 and provides for the administration of oaths and affirmations via video or
audio link. Oaths and affirmations should be administered in a manner that is as close
as possible to the way it would normally be done if the person were physically present
in the courtroom. Alternatively, the court martial or Defence Force magistrate may
allow a person at the remote person's location to administer the oath or affirmation.
Clause 44 - Powers conferred on President
522. This clause is based on existing section 148EA of the Defence Force
Discipline Act 1982, and requires the President of a court martial to seek the advice of
a judge advocate before exercising a power under this Division.
Clause 45 - Evidence of certain New Zealand matters
523. This item is based on section 148F of the Defence Force Discipline Act 1982,
and preserves the operation of the Evidence and Procedure (New Zealand) Act 1994.
Division 3--Rules of Procedure
Clause 46 - The Court Martial and Defence Force Magistrate Rules
524. This clause is based on existing section 149A of the Defence Force Discipline
Act 1982. It provides for the Judge Advocate General to make rules (by legislative
instrument) about the practice and procedure to be followed by a court martial or a
Defence Force magistrate and any other matter required or permitted by the Defence
Force Discipline Act 1982 to be prescribed by the Rules. Paragraph 46(a) contains a
non-exhaustive list of particular matters about which the Judge Advocate General
may make rules.
Part 4--Appeals and references to the Military Court
Division 1--Interpretation
Clause 47 - Interpretation
525. This item provides for the interpretation of terms relating to an appeal to the
Military Court from a decision of a court martial or Defence Force magistrate.
526. Subclause 47(2) provides for a situation where a review of proceedings before
a court martial or Defence Force magistrate occurs, and the reviewing authority
substitutes the conviction imposed for a prescribed acquittal or a conviction of another
service offence. For the purposes of this Part relating to appeals and references to the
Military Court, the prescribed acquittal or conviction imposed by the reviewing
authority is taken to have been imposed by the court martial or Defence Force
magistrate.
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527. Subclause 47(3) and (4) provides for situations where a review of proceedings
before a court martial or Defence Force magistrate occurs, and the reviewing
authority substitutes the original decision with its own conviction or prescribed
acquittal or imposes a new punishment or order. For the purposes of this Part relating
to appeals and references to the Military Court, that new conviction, prescribed
acquittal, punishment or order is taken to have been determined or imposed by the
court martial or Defence Force magistrate.
528. This ensures appeal rights flow where the reviewing authority has substituted
a prescribed acquittal, or a different conviction, or taken different action under
Part IV, from the court martial or Defence Force magistrate. For example, if a
reviewing authority substitutes a punishment of 10 years imprisonment with a
punishment of 15 years, the person can appeal the imprisonment of 15 years to the
Military Court as if that had been the decision of the court martial or Defence Force
magistrate.
Division 2--Bringing Appeals
Clause 48 - Allowable appeals
529. This clause confers jurisdiction on the Military Court to hear and determine
appeals against convictions, prescribed acquittals, punishments and orders imposed by
a court martial or Defence Force magistrate.
530. The note to the clause clarifies that this is part of the Military Court's original
jurisdiction and, except in relation to certain matters, must be exercised by a Full
Court. The note also clarifies that the provision is affected by subclauses 47(2), (3)
and (4) in Schedule 3B, which provide that certain decisions of reviewing authorities
are taken to be decisions of the court martial or Defence Force magistrate for these
purposes.
Clause 49 - Leave to appeal
531. This clause provides that the Military Court may hear an appeal based on an
error of fact, but only with the leave of the Military Court. Leave will not be required
if the appeal involves a question of law alone.
532. Clause 55 of new Schedule 3B provides for the constitution of the court
required for the purpose of considering a leave application.
Clause 50 - Who may appeal
533. Subclause 50(1) provides that a convicted person may make an application for
leave and bring an appeal against their conviction, a punishment imposed in respect of
that conviction or restitution or reparation order made by the court martial or Defence
Force magistrate.
534. Subclause 50(2) provides for a prescribed acquitted person (that is, a person
acquitted on the basis of mental impairment at the time of the conduct constituting the
offence) to make an application for leave or to bring an appeal against their prescribed
acquittal or an order flowing from that prescribed acquittal (such as a conditional
release or other order considered necessary having regard to the best interests of the
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accused person, the safety of any other person to whom the order relates and the
safety of the community generally).
535. Subclause 50(3) prevents a prescribed acquitted person from seeking leave or
bringing an appeal in respect of their prescribed acquittal if, during the trial or on
review of those proceedings, the defence adduced evidence of mental impairment.
This would prevent a person from arguing that there should be a prescribed acquittal,
and then seeking to overturn a decision which accepts that argument.
536. Subclause 50(4) provides for appeals by the DMP. The DMP may seek leave,
or bring an appeal, in relation to a punishment imposed, an order that a conviction be
recorded without punishment, or a restitution or reparation order. The DMP may not
appeal against an acquittal or prescribed acquittal (including decisions about an order
flowing from a prescribed acquittal).
Clause 51 - Instituting an appeal
537. This clause provides for an appeal to be filed by way of written notice to the
Military Court in accordance with the requirements in the Military Court Rules. It
must specify the grounds on which the appeal is instituted. This notice is required in
addition to an application to seek leave to appeal, in circumstances where leave is
required.
Clause 52 - Time for appealing--convicted person or prescribed acquitted person
538. This clause provides for time limits in which a convicted or prescribed
acquitted person must lodge an application for leave to appeal or an application to
bring an appeal. These time limits are important so as to achieve a level of finality
over proceedings.
539. Subclause (1) clarifies that this clause applies in relation to an application of
leave to appeal, or a notice of appeal for an appeal involving a question of law alone
that is proposed to be filed by a convicted person or a prescribed acquitted person.
Time limits will apply in relation to each application specified in the clause.
540. The time limits reflect the rights of the convicted person or prescribed
acquitted person to have decisions of the court martial or Defence Force magistrate
reviewed under Part VIIIA of the Defence Force Discipline Act 1982. These rights
will be preserved and include an automatic review under section 152 of the Defence
Force Discipline Act 1982 as well as discretionary review, initiated by the convicted
or prescribed acquitted person, under sections 153 and 155.
541. As the section 152 review is automatically provided to all persons following a
decision by a court martial or Defence Force magistrate, subclause 52(6) prevents an
appeal or an application for leave to appeal from being filed before that review has
been completed and notice of the results of that review has been given to the person.
542. Subclauses 52(2) to (4) together set the time limits dependent upon which
appeal rights the convicted or prescribed acquitted person chooses to exercise. If they
choose nothing beyond the automatic section 152 review, appeal applications or
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notices to the Military Court must be filed before the end of 30 days after the notice of
the results of the section 152 review is received.
543. After the section 152 review results are received, the convicted or prescribed
acquitted person has 30 days in which to petition for further review under section 153.
If they choose to exercise this right, the time limit to file an appeal to the Military
Court is extended until 30 days after the notice of the results of the section 153 review
is received. If, during that time, they choose to exercise their right to an additional
section 155 review, the appeal time limit is again extended until 30 days after the
notice of that review is received.
544. The Defence Force Discipline Act 1982 provides no time limit on filing for a
section 155 review. Therefore, subclause 52(4) provides that a person can only
appeal to the Military Court following a section 155 review if that review commences
within either of the time limits imposed by subclauses 52(2) or (3). This ensures that
if the time limit for filing an appeal or application for leave to appeal expires as a
result of subclauses 52(2) or (3), it is not enlivened as a result of a later petition by the
convicted or prescribed acquitted person for a section 155 review.
545. Subclause 52(5) provides a general power for the Military Court to extend the
time period within which the notice or application may be filed. It can only order an
extension if it is in the interests of justice to do so.
Clause 53 - Time for appealing--Director of Military Prosecutions
546. This clause provides for the time limits that the DMP has in which to lodge an
application for leave to appeal or an application to bring an appeal. Time limits are
important so as to achieve a level of finality over proceedings.
547. The time limits imposed on the DMP reflect the importance of allowing the
convicted or prescribed acquitted person to exercise their internal review rights and
not having these removed by the DMP lodging a notice or bringing an appeal to the
Military Court. Where the convicted or prescribed acquitted person exercises these
rights, the DMP will be notified, through administrative arrangements, that an internal
review is underway. This enables the DMP to understand the time limits that will
apply for them to file an appeal.
548. Subclause 53(1) clarifies that this clause applies in relation to an application
for leave to appeal, or a notice of appeal for an appeal involving a question of law
alone, that is proposed to be filed by the Director of Military Prosecutions in relation
to trial proceedings that have resulted in a conviction. Time limits will apply in
relation to each application specified in the clause.
549. Subclauses 53(2) to (4) together set the time limits dependent upon which
appeal rights the convicted person or prescribed acquitted person might choose to
exercise. If they choose nothing beyond the section 152 review, appeal applications
or notices to the Military Court must be filed within 30 days after the end of the
`initial appeal period'. The `initial appeal period' is calculated by reference to
subclause 52(2). It starts when the notice of the results of the section 152 review is
received by the person and ends 30 days after that notice is received. This gives the
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accused person a chance to lodge an appeal or petition for a section 153 appeal, before
the DMP can lodge an appeal.
550. If the convicted or prescribed acquitted person chooses to exercise their
section 153 right, the time limit for the DMP to file an appeal to the Military Court is
extended (`extended appeal period') until 30 days after the review is completed. If,
during that time, the accused chooses to exercise their right to a section 155 review,
the DMP's appeal time limit is again extended until 30 days after that review is
completed.
551. The time limits for the DMP are based on when the review is completed,
whereas the time limits for the accused are based on when they receive notice of the
results of the review. This is because an accused will not be aware of when the
review has been completed until they receive notice of the results of the review,
whereas the DMP will be made aware of the completion of the review by way of
administrative arrangements.
552. The Defence Force Discipline Act 1982 provides no time limit on filing for a
section 155 review. Therefore, subclause 53(4) provides that the DMP can only
appeal to the Military Court following a section 155 review, if that review commences
within either of the time limits imposed by subclauses 53(2) or (3). This ensures that
if the time limit for filing an appeal or application for leave to appeal expires as a
result of subclauses 53(2) or (3), it is not enlivened as a result of a later petition by the
convicted or prescribed acquitted person for a section 155 review.
553. Subsection 53(5) provides a general power for the Military Court to extend the
time period within which the notice or application may be filed. It can only order an
extension if it is in the interests of justice to do so.
554. Subsection 53(6) prevents the DMP from filing a notice or application in the
Military Court before the day on which any section 153 review or section 155 review
(as the case may be) is completed. This would prevent simultaneous review by
different bodies.
Clause 54 - Effect of appeal on review of trial proceedings under Part VIIIA
555. Subclause 54(1) provides that if a convicted person appeals to the Military
Court against a conviction, or against a punishment imposed or an order made in
respect of a conviction, any internal review in progress must be discontinued in
relation to that part of the appeal. The person's further review rights under Part VIIIA
are then extinguished in relation to that part of the conviction or punishment to which
the convicted person appealed.
556. Subclause 54(2) provides that if a prescribed acquitted person appeals to the
Military Court against his or her prescribed acquittal, any internal review in progress
must be discontinued in relation to that part of the appeal, and the prescribed acquitted
person will have no further review rights under Part VIIIA in relation to the
prescribed acquittal.
557. Subclause 54(3) confirms that, if the DMP appeals, the convicted or
prescribed acquitted person's rights to further review are also extinguished.
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558. Subclause 54(4) provides that, for the purpose of this clause, trial proceedings
includes any review conducted under Part VIIIA. This is necessary to preclude a
situation where a section 155 review is allowed on the basis it is a review of the
decision of the section 153 reviewing authority, as opposed to the decision of the
court martial or Defence Force magistrate.
Clause 55 - Certain applications to be heard by single Judge
559. This clause provides that a single Judge must hear and determine an
application:
· for leave to appeal;
· for an extension of time to file a notice of appeal or an application for leave to
appeal;
· for leave to amend the grounds of appeal;
· for the Military Court to make an order regarding stay of a determination or
order; or
· for leave to adduce further evidence to the Full Court of the Military Court.
560. However, where a Judge directs that the application should be heard and
determined by a Full Court, or where proceedings have already been assigned to a
Full Court and the Full Court finds that it would appropriate to consider the
application, then the Full Court must hear the application.
Clause 56 - Suspension of operation of restitution orders and reparation orders
561. This clause is based on existing section 173 of the Defence Force Discipline
Act 1982. It ensures that a restitution order or a reparation order made by a court
martial or a Defence Force magistrate is suspended until the end of the period of
appeal under subclause 52(2) to which the appeal or the application relates. If,
however, a notice of appeal or an application for leave to appeal is filed, then a
restitution order or a reparation order made by a court martial or a Defence Force
magistrate is suspended until the appeal is determined or is dismissed, withdrawn or
abandoned.
Clause 57 - Stay of determination or order that is subject to appeal etc.
562. This clause provides that the Military Court may make an order, with or
without conditions, to stay or otherwise affect the operation or implementation of a
determination or order made in, or in relation to, the trial proceedings to which the
appeal or application relates. This will enable the Military Court to make orders
where, for example, the implementation of a decision under appeal may prejudice the
rights of the convicted person. For example, it would prevent the dismissal of an
ADF member in such circumstances.
563. This clause will not affect the operation of any provisions made by or under
any other Act or by the Military Court Rules for, or in relation to, the stay or
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suspension of determinations or orders of a court martial or a Defence Force
magistrate.
Clause 58 - Right to attend
564. This clause provides that the convicted or prescribed acquitted person and the
DMP are entitled to attend the hearing of the appeal unless the Military Court orders
otherwise, or unless directs or allows the person to attend via video link or audio link
or other appropriate means.
Clause 59 - Custody and bail
565. This clause provides that Part 8 of the Military Court Act applies to this
Schedule in relation to an appeal as if any references to accused persons were
references to the appellant, and any reference to a proceeding in respect of charges of
service offences of the Military Court Act were references to the appeal.
566. This ensures that the Military Court may remand the appellant in custody or
grant the appellant bail during the period of time that the Military Court is dealing
with the appeal from a court martial or Defence Force magistrate.
Division 3--Powers of Military Court on appeal
Clause 60 - Military Court may give such judgment as is appropriate
567. This clause provides for the powers for the Military Court when dealing with
an appeal. The Military Court may dismiss or allow an appeal, and take any other
action which the Court considers is appropriate in the circumstances.
568. This other action may include setting aside a conviction or acquitting the
person of the charge, setting aside the punishment or setting aside the punishment and
ordering a substituted punishment, setting aside or varying a restitution or reparation
order even if the conviction to which the order relates is not set aside or the appeal is
on punishment only.
Clause 61 - Appeals against convictions
569. This clause requires the Military Court to allow an appeal against a conviction
if the Military Court is satisfied that the court martial or Defence Force magistrate
made a wrong decision on a question of law, or that there has been a substantial
miscarriage of justice in the trial proceedings.
570. However, subclause 61(2) enables the Military Court to dismiss the appeal if it
is satisfied that a wrong decision on any question of law was made, but that there had
not been a substantial miscarriage of justice.
571. On allowing an appeal against conviction, the Military Court may set aside the
conviction, or acquit the person. The note to the section clarifies that, if the Military
Court sets aside a conviction, the DMP may institute new proceedings or direct that
the charge not be proceeded with.
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Clause 62 - Appeals against punishments and orders
572. This clause requires the Military Court to allow an appeal against a
punishment if the Court is satisfied that another punishment, either more or less
severe, is warranted in law. Likewise, it must allow an appeal against an order that a
conviction be recorded without punishment if the Military Court is satisfied that a
punishment (as opposed to none) is warranted in law.
573. If the Military Court allows an appeal against punishment, the Military Court
may set aside the punishment and/or order a new punishment under Part 9 of the
Military Court Act. Subclause 62(3) applies Part 9 of the Military Court Act as if the
person had been convicted by the Military Court for the purposes of ordering a new
punishment under Part 9 of the Military Court Act.
574. The Military Court can only set aside a punishment if it could have imposed
the punishment under Part 9 of the Military Court Act (which excludes the ability for
it to impose a reprimand), or there was an error of law. Otherwise, it is restricted to
punishments set out in Part 9 of the Military Court Act.
575. Where the Military Court allows an appeal against an order that a conviction
be recorded without punishment, it can set aside the order, set aside a related
undertaking to be of good behaviour and/or take action under Part 9. Where the Court
sets aside a conviction to which there is a related undertaking, the Court would be
generally expected to set aside that undertaking. Subclause 62(7) applies Part 9 of the
Military Court Act as if the person had been convicted by the Military Court for the
purposes of ordering a new punishment under Part 9 of the Military Court Act.
576. The Military Court also has the discretion to allow an appeal against a
restitution or reparation order if it is satisfied that it is in the `interests of justice' to do
so. The requirement to be `in the interests of justice' is consistent with section 106 of
the Military Court Act. Where the appeal is allowed, the Military Court may set aside
or vary the order.
Clause 63 - Appeals against prescribed acquittals
577. This clause provides for the Military Court's discretion to allow an appeal
against a prescribed acquittal if it is in the `interests of justice' to do so. The
requirement to be `in the interests of justice' is consistent with section 106 of the
Military Court Act. Where the appeal is allowed, the Military Court may set aside the
prescribed acquittal. The note to subclause 63(2) clarifies that, if the Military Court
sets aside a prescribed acquittal, the DMP may institute new proceedings or direct that
the charge not be proceeded with.
578. The Military Court may also allow an appeal against an order made by a court
martial or Defence Force magistrate under subclause 35(3) of Schedule 3B in relation
to a prescribed acquitted person if it is satisfied that it is `in the interests of justice' to
do so. Orders made under subclause 35(3) include unconditional release, release of a
person into the care of a responsible person, release on condition that a person attends
assessment of mental impairment or treatment, or any other order considered
necessary having regard to the best interests of the accused person, the safety of any
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other person to whom the order relates and the safety of the community generally.
Orders must specify the period for which they operate not exceeding three years.
579. Where the Military Court allows such an appeal, it can set aside the order and
take any further action which would have been available to it if the prescribed
acquittal was made by the Military Court. The Military Court is able to make the
same orders under subsection 164(1) of the Military Court Act as the court-martial or
Defence Force magistrate under subclause 35(3) of Schedule 3B.
Clause 64 - Evidence on appeal
580. The Military Court must have regard to the evidence given in the trial and any
further evidence considered by a reviewing authority. It may also draw inferences of
fact from that evidence.
581. Further, this clause enables the Military Court to receive further evidence
during the appeal if satisfied it is in the `interests of justice' to do so. Leave must be
granted for this to occur. If leave is granted, further evidence can be received on
affidavit, by oral examination or by way of video or audio link or any other means
consistent with the Military Court Act or any other law of the Commonwealth (for
example, the Evidence Act 1995). The note to the clause clarifies that the Military
Court is not required to receive further evidence, and uses the example of where the
failure to adduce evidence during trial is not satisfactorily explained.
582. Subclause 64(2) provides for further evidence to be taken by a single Judge,
and for the Full Court to have regard to the findings of that Judge.
Clause 65 - Costs
583. This clause provides discretion for the Military Court to award costs of an
appeal from a court martial and Defence Force magistrate in certain circumstances.
584. Subclauses (1) and (2) relate to appeals by convicted persons or prescribed
acquitted persons. If the Military Court allows an appeal by a convicted person or
prescribed acquitted person, the Court has discretion, if it considers appropriate, to
order the Commonwealth to pay to the convicted person or prescribed acquitted
person such amount as the Military Court considers to be reasonably sufficient to
compensate the convicted person or prescribed acquitted person for expenses properly
incurred by him or her in the prosecution of his or her appeal and any proceedings
preliminary or incidental to the appeal or in carrying on his or her defence against the
charge or charges out of which the appeal arose.
585. Conversely, if the Military Court dismisses an appeal, or application for
special leave to appeal, by a convicted person or prescribed acquitted person, the
Court has discretion, if it considers it appropriate, to order the convicted person or
prescribed acquitted person to pay to the Commonwealth the whole or any part of the
costs of the appeal or application.
586. Subclauses (3) and (4) relate to appeals by the Director of Military
Prosecutions. If the Military Court allows an appeal by the Director of Military
Prosecutions, the Court has discretion, if it considers appropriate, to order a convicted
85
person or prescribed acquitted person to pay to the Commonwealth the whole or any
part of the costs of the appeal.
587. Conversely, if the Military Court dismisses an appeal, or application for
special leave to appeal, by the Director of Military Prosecutions, the Court has
discretion, if it considers it appropriate, to order the Commonwealth to pay to the
convicted person or prescribed acquitted person such amount as the Military Court
considers to be reasonably sufficient to compensate the convicted person or
prescribed acquitted person for expenses properly incurred by him or her in
responding to the appeal and any proceedings preliminary or incidental to the appeal
or in carrying on his or her defence against the charge or charges out of which the
appeal arose.
588. Powers to award costs in the Military Court are similar to powers of the
DFDAT under section 37 of the Defence Force Discipline Appeals Act 1955 in the
interim military justice system, and are consistent with the powers for other appeals in
the Military Court.
Clause 66 - Person taken to have been acquitted
589. This clause provides that where the Military Court makes an order setting
aside the conviction or prescribed acquittal, and the DMP directs that the charges not
be proceeded with, the person is taken to have been acquitted of the service offence to
which the order relates.
590. A note has been included to refer readers to the operation of
subsection 103F(3), which provides that there is a 60 day period in which the DMP
must make a decision. Where a decision has not been made, the DMP is regarded as
having directed that the charges not proceed. This provision will ensure that a person
whose conviction was set aside by the Military Court on appeal has certainty
regarding their conviction after a set period of time.
Division 4--References to the Military Court
Clause 67 - Reference of question of law during trial
591. This clause provides that a question of law may be referred from the judge
advocate of a court martial or a Defence Force magistrate proceeding to the Military
Court. A question of law may be referred on the initiative of the judge advocate or
the Defence Force magistrate; or at the request of the accused, the DMP, the CDF or a
service chief. Such references must be heard by the Full Court of the Military Court.
592. Where a question has been referred to the Military Court, a court martial or
Defence Force magistrate must not give a decision to which the question is relevant
while the referral is pending, or proceed in a manner or make a decision that is
inconsistent with the opinion of the Military Court once the question of law is
decided. That is, once the question is referred, the court martial and Defence Force
magistrate are bound to wait for it and bound to follow it.
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Clause 68 - Reference of question of law after trial
593. This clause enables the DMP to apply to the Military Court for leave to refer a
question of law to the Full Court, arising from a determination of a court martial or
Defence Force magistrate acquitting a person (including because of mental
impairment), or a decision made by a reviewing authority to acquit a person (because
of mental impairment or otherwise) or under sections 159 or 165 of the Defence Force
Discipline Act 1982 (resulting in the person being taken to have been acquitted). The
leave application is to be heard by a single Judge unless that Judge directs it to be
heard and determined by a Full Court.
594. This clause also provides that Court has jurisdiction to hear and determine
these matters and that both the DMP and an accused may make submissions in
relation to the Military Court's determination on the question of law.
595. Any determination on a question of law by the Military Court does not affect
the person's acquittal.
Division 5--Other matters
Clause 69 - Sending documents to the Military Court
596. This clause provides for the process of sending documentation to the Military
Court where a notice of appeal is filed in the Military Court or a question of law is
referred under clauses 67 or 68 of Schedule 3B.
597. The DMP must give the Military Court all documents and other records
applicable to the trial proceedings to which the appeal or reference relates. The CDF
must also provide all documents and other records applicable to any review of the trial
proceedings to which the appeal or reference relates. At the conclusion of the appeal,
the Military Court must return all documents to either the DMP or the CDF.
598. This requirement does not apply to the filing of an application for leave to
appeal.
Clause 70 - Appeals not to be brought against certain judgements
599. Subclause 70(1) provides that appeals must not be brought to the Full Court of
the Military Court, despite section 105 of the Military Court Act, from:
· a judgement of a single Judge exercising the jurisdiction of the Military Court
in an appeal under this Part; or
· a judgement of the Military Court under Part 8 of the Military Court Act
(which deals with bail) made in relation to an appeal under this Part.
600. Subclause 70(2) provides that an appeal must not be brought to the High Court
from a judgement of the Military Court exercising its jurisdiction in an appeal under
this Part if the judgement is either a determination of an application referred under
clause 55 (applications to be heard by a single Judge), or a decision to reinstate, or not
to reinstate, an appeal under this Part that was taken to have been abandoned or
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dismissed. This prevents appeals from decisions set out in clause 55, including
decisions to grant leave to appeal.
601. Subclause 70(3) applies to avoid doubt. It clarifies that the restriction
regarding appeals to the High Court from certain judgements of the Military Court has
effect in addition to Part 7 of the Military Court of Australia Bill. Part 7 of the
Military Court of Australia Bill relates to requirements for special leave to appeal to
the High Court generally.
Item 166 - Schedule 4 (heading) Oath or affirmation for holders of certain
offices
602. This item inserts a heading for Schedule 4 (which currently does not have a
heading): `Schedule 4--Oath or affirmation for holders of certain officers'. It also
updates the note to refer to sections 184, 188GJ and clause 25 of Schedule 3B. The
existing references to sections 188AF, 188AT and 188FF have been removed because
clause 25 of Schedule 3B replaces section 188FF, and sections 188AF and 188AT no
longer exist.
Item 167 - Schedule 7--Certain disciplinary offences
603. This item inserts a new Schedule 7 at the end of the Defence Force Discipline
Act 1982. Schedule 7 lists offences, which are contained in existing Schedule 1A
(repealed by Item 163 in Schedule 1 of this Bill). These offences are characterised as
being exclusively disciplinary in nature, and have no civilian criminal equivalents.
604. In accordance with new sections 190B and 190C of the Defence Force
Discipline Act 1982, a conviction for an offence contained in this schedule will be
exempt, by virtue of those sections, from any reporting or disclosure obligations for
an offence against a law of the Commonwealth.
Part 2--Amendment of offences
605. This Part makes amendments to increase fines for offences and express them
in terms of penalty units within the meaning of the Crimes Act 1914. This will ensure
that it is not necessary to amend the maximum fine which a conviction for an offence
attracts in order to account for inflation. This is similar to modern civilian criminal
jurisdictions.
Defence Force Discipline Act 1982
Item 168 - Paragraphs 40D(1)(d) and (2)(d) Driving without due care or
attention
606. This item amends the penalty provision for the offence of driving without due
care or attention. It inserts a penalty of 3 penalty units (within the meaning of the
Crimes Act 1914) in place of the currently prescribed dollar amount of $100. The
amendment will align the sentencing option of fines for defence civilians with those
in the civilian jurisdiction. It will not significantly increase the existing penalty.
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Item 169 - Paragraph 59(3)(f), (5)(e) and (6)(e) Possession of prohibited drugs
607. This item amends the penalty provision for the offence of dealing in or
possession of prohibited drugs. It inserts a penalty of 3 penalty units (within the
meaning of the Crimes Act 1914) in place of the currently prescribed dollar amount of
$100. The amendment will align the sentencing option of fines for defence civilians
with those in the civilian jurisdiction. It will not significantly increase the existing
penalty.
Item 170 - Section 62 Commanding or ordering a service offence to be
committed
608. This item repeals existing section 62 of the Defence Force Discipline Act
1982, and inserts a new section 62 which sets out the offence of commanding or
ordering a service offence to be committed. The amendment clarifies the fault
elements that are attributable to the ADF member charged under section 62, and the
defences applicable to an offence under this section. It is modelled on section 11.4 of
the Criminal Code.
Item 171 - Subparagraph 68(1)(h)(ii) Scale of punishments
609. This item amends the scale of punishments provision in relation to fines
imposed on persons other than ADF members. This item replaces the currently
prescribed monetary amount of $500 with a penalty of 15 penalty units. The
amendment will align the sentencing option of fines for defence civilians with those
in the civilian jurisdiction.
Items 172, 173, 174 and 175 - Subsection 72(1); After subsection 72(1);
Subsection 72(2); At the end of section 72 Application of certain provisions of
Crimes Act 1914
610. Together, these items address the existing undesirable situation of service
tribunals being capable of issuing recognisance release orders without any effective
capacity to enforce the orders. The inability to enforce recognisance release orders is
due to the ad hoc nature of the tribunals and the jurisdictional problem of ADF
members sentenced to imprisonment being discharged from the service under
subsection 71(1) of the Defence Force Discipline Act 1982.
611. The intention in removing the capacity to issue recognisance release orders
and allowing the provisions for non-parole period to apply for prison sentences less
than 3 years is to reflect the sentencing options that existed prior to the application of
the provisions of Division 5 of Part 1B of the Crimes Act 1914 and to remove an
unenforceable provision from this Act.
612. This item removes the reference to certain conditional release provisions of
the Crimes Act 1914 and attaches the term `applied Crimes Act provisions' to those
sections of the Crimes Act 1914 listed in the subsection.
613. This item inserts a new subsection 72(1A) into the Defence Force Discipline
Act 1982 which prevents a service tribunal from imposing a recognisance release
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order and instead provides for it to be able to set a non-parole period for sentences of
imprisonment for less than 3 years.
Item 176 - Section 79(2) Suspension of fines
614. This item replaces the figure of $100 with 3 penalty units to reflect the
replacement of fixed monetary fines in the Defence Force Discipline Act 1982 with
penalty unit provisions. This will align the sentencing option of fines for defence
civilians with those in the civilian jurisdiction. It will not significantly increase the
existing penalty.
Item 177 - Clause 2 of Schedule 2 (table, column 2) Punishments that may be
imposed by a court martial or Defence Force magistrate
615. This item replaces the figure of $500 with 15 penalty units in column 2 of the
table in clause 2 of Schedule 2, which can be imposed on a person who is not a
member of the Defence Force by court martial or Defence Force magistrates. It
reflects the fact that the current punishment of fines of a dollar value will be replaced
with penalty units in order to have parity with sentences for civilians in civilian
courts.
Item 178 - Subclause 1(4) of Schedule 3 (table, item 2, column 2) Punishments
that may be imposed by summary authority
616. This item replaces the reference to `exceeding $100 but not exceeding $250'
with `not exceeding 7 penalty units'. This reflects the fact that the current punishment
of fines of a dollar value will be replaced with penalty units in order to have parity
with sentences for civilians in civilian courts.
617. This amendment, and those in Items 179, 180 and 181 below, will amend
Schedule 3 which is being repealed and substituted with a new Schedule 3 by
Item 164 of Schedule 1 of this Bill. These amendments will commence on Royal
Assent which will be before the amendment in Item 164 commences. They will,
therefore, update the penalties which can be imposed between commencement of
these provisions and when the jurisdiction of the Military Court commences and will
continue to have application for the purposes of the `old law' under the transitional
provisions in Schedule 5.
Item 179 - Subclause 1(4) of Schedule 3 (table, item 2, column 3) Punishments
that may be imposed by summary authority
618. This item replaces the figure of $100 with 3 penalty units. This reflects that
the current punishment of fines of a dollar value will be replaced with penalty units in
order to have parity with sentences for civilians in civilian courts.
Item 180 - Subclause 2(3) of Schedule 3 (table, item 5, column 2) Punishments
that may be imposed by summary authority
619. This item replaces the reference to `exceeding $100 but not exceeding $250'
with `not exceeding 7 penalty units'. This reflects the fact that the current punishment
of fines of a dollar value will be replaced with penalty units in order to have parity
with sentences for civilians in civilian courts.
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Item 181 - Subclause 2(3) of Schedule 3 (table, item 5, column 3) Punishments
that may be imposed by summary authority
620. This item replaces the figure of $100 with 3 penalty units. This reflects that
the current punishment of fines of a dollar value will be replaced with penalty units in
order to have parity with sentences for civilians in civilian courts.
Part 3--Other amendment
Defence Force Discipline Act 1982
Item 182 - Clause 45 of Schedule 3B
621. This item removes the reference to the Evidence and Procedure (New
Zealand) Act 1994 in clause 45 of Schedule 3B, and replaces it with the
Trans-Tasman Proceedings Act 2010. This is a consequence of the repeal of the
former Act and its replacement with the latter Act.
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SCHEDULE 2--Amendments of other Defence legislation
Defence Act 1903
Items 1, 2, 3, and 5 - Subsection 4(1) (definition of accused person) (definition of
court martial) (definition of Defence Force magistrate) (definition of legal officer)
622. These items provide that the terms `accused person', `court martial', `Defence
Force magistrate' and `legal officer' have the same meaning for the purposes of the
Defence Act 1903 (Defence Act) as the meaning given in the Defence Force
Discipline Act 1982.
Item 4 - Subsection 4(1) (definition of Director of Defence Counsel Services)
623. This item provides that the term `Director of Defence Counsel Services'
means a person appointed under subsection 110ZA(2) (which is inserted by Item 14 in
Schedule 2 of this Bill) as the Director of Defence Counsel Services, or a person
acting as the Director of Defence Counsel Services.
Item 6 - Subsection 4(1) (definition of Military Court)
624. This item provides that for the purposes of the Defence Act 1903, the term
`Military Court' means the Military Court of Australia created by the Military Court
of Australia Act 2012.
Item 7 - Subsection 4(1) (definition of Military Court Act)
625. This item provides that the term `Military Court Act' means the Military Court
of Australia Act 2012.
Item 8 - Subsection 9A(5) Administration of Defence Force
626. This item removes the reference to the DFDAT from subsection 9A(5) of the
Defence Act 1903, as a consequence of the abolition of that Tribunal under the new
military justice system (see Schedule 4 of this Bill).
Item 9 - Subsection 89(2) Contempt of service tribunals etc.
627. This clause repeals the references to the `court martial' and `Defence Force
magistrate' in subsection 89(2), and retains the definition of `judge advocate' and
`summary authority' for the purposes of the Defence Act 1903. The definitions of
`court martial' and `Defence Force magistrate' have been removed because they are
contained in subsection 4(1) of the Defence Act 1903 as a result of the amendments at
Items 2 and 3 in Schedule 2 of this Bill.
Item 10, 11 and 12 - Section 90 (heading); Paragraph 90(1)(a); Subsection 90(2)
Failure to comply with order to exclude members of the public etc in hearing
before court martial or Defence Force magistrate
628. Item 10 repeals the heading of Section 90--` Failure to comply with order
under section 140 of the Defence Force Discipline Act 1982'. It substitutes this
92
heading with `Failure to comply with order to exclude members of the public etc in
hearing before court martial or Defence Force magistrate'. This is a consequence of
moving the relevant provisions in the Defence Force Discipline Act 1982 regarding
court martial and Defence Force magistrate trials into the new Schedule 3B.
629. Items 11 and 12 update cross-references in the Defence Act 1903 to provisions
in the Defence Force Discipline Act 1982 regarding courts martial and Defence Force
magistrate trials, which have been moved into the new Schedule 3B.
Item 13 - Section 108 Finding made as a result of testing not admissible in
certain criminal proceedings
630. This item simplifies section 108, and ensures that all proceedings for ancillary
service offences are captured.
Item 14 - After Part VIIIC
631. This item inserts a new Part VIIID--Director of Defence Counsel Services
into the Defence Act 1903, which establishes the office of the DDCS and outlines its
functions and powers.
632. New section 110ZA establishes the office of Director of Defence Counsel
Services, who is to be appointed by the CDF, and who must be a legal officer.
Appointment by the CDF demonstrates the significance and importance of the
position.
633. New section 110ZB outlines the functions and powers of the Director.
Establishing this office under the law reflects the serious commitment that ADF
command places on the individual interests and rights of defence members involved
in the military justice process.
634. Subsection 110ZB(1) details the functions of DDCS. These include, but are
not limited to, providing for advice and representation of an person accused of a
service offence, to arrange witnesses on behalf of the accused, and to manage the
provision of legal advice, representation and assistance by legal officers in relation to
various proceedings in the Military Court.
635. Subsection 110ZB(2) provides that the DDCS may give directions or
guidelines in writing to legal officers in relation to the provision of representation,
legal advice and other assistance referred to in subsection 110ZB(1).
636. To provide for, and protect, the independence of the DDCS, subsection
110ZB(3) provides that the position will not be subject to military command or
Defence Force Discipline Act 1982 1982 in the performance of the functions, or the
exercise of the powers of the position.
637. Subsection 110ZB(4) provides the DDCS (or acting DDCS) with protection
against an act, suit or proceeding, in relation to an act done or omitted in good faith in
the performance or purported performance of a function, or the exercise or purported
exercise of a power, conferred on DDCS by or under the Defence Act 1903 or any
other law of the Commonwealth.
93
638. Subsections 110ZB(5) and (6) are included to clarify that directions given
under paragraph 110ZB(1)(f) and directions given or guidelines provided under
subsection 110ZB(2) are not legislative instruments within the meaning of section 5
of the Legislative Instruments Act 2003.
Item 15 - Subsection 122B(2) (definition of legal officer)
639. This item repeals the definition of `legal officer' as the definition has been
inserted into subsection 4(1) as a result of Item 5 in Schedule 2 of this Bill.
Item 16 - Before section 123F Judges and Federal Magistrates of the Military
Court not to enlist in or be appointed to the Australian Defence Force
640. This item inserts a new section 123E to require that, while a person is a
judicial officer of the Military Court, they must not enlist or be appointed as an officer
in the ADF. This is to ensure the Military Court is independent of military command,
to ensure fairness and impartiality to ADF members in trials for service offences.
Defence Force Retirement and Death Benefits Act 1973
Item 17 - Paragraph 6(5)(a) Non-effective service
641. This item amends paragraph 6(5)(a) to ensure that the period in which an
ADF member is held in custody pre-trial or during trial will be deemed to be a
period of non-effective service under the Defence Force Retirement and Death
Benefits Act 1973, whether the custody is ordered by the Military Court under the
Military Court Act or a service tribunal under the Defence Force Discipline Act 1982.
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SCHEDULE 3 - Amendment of other Acts
Part 1 -- Main amendments
Acts Interpretation Act 1901
Item 1 - Section 2B Federal Magistrate
642. This item inserts a definition of the term `Federal Magistrate' to refer to the
definition in new subsection 16C(4).
Item 2 - Section 16C (heading) Reference to Stipendiary Magistrate and
Magistrate
643. This item repeals the heading of Section 16C--`References to Stipendiary
Magistrate and Magistrate'. It substitutes this heading with `References to
Stipendiary Magistrate, Magistrate and Federal Magistrate. This amendment is a
consequence of the inclusion of a definition of Federal Magistrate in subsection
16C(4).
Item 3 - At the end of Section 16C Reference to Stipendiary Magistrate and
Magistrate
644. This item inserts a new subsection 16C(4) in the Acts Interpretation Act 1901,
which will define the term `Federal Magistrate'. The definition will clarify that,
unless the contrary intention appears, references to `Federal Magistrate' in
Commonwealth legislation means a `Federal Magistrate of the Federal Magistrates
Court or the Military Court of Australia'.
Administrative Decisions (Judicial Review) Act 1977
Item 4 - At the end of paragraph (o) of Schedule 1 Classes of decisions that are
not decisions to which this Act applies
645. This item adds `(other than decisions by the Attorney-General under
subsection 158A(8) of that Act or subclause 35(7) of Schedule 3B to that Act)' at the
end of paragraph (o) of Schedule 1. Paragraph (o) of Schedule 1 excludes all
decisions made under the Defence Force Discipline Act 1982 from being decisions to
which the Administrative Decisions (Judicial Review) Act 1977 applies.
646. This amendment has the effect that decisions of the Attorney-General under
subsection 158A(4) or subclause 35(7) of the Defence Force Discipline Act 1982 to
vary or set aside orders of a court martial, Defence Force magistrate or reviewing
authority relating to persons (who are no longer defence members) acquitted
following a determination of mental impairment will be decisions to which the
Administrative Decisions (Judicial Review) Act 1977 applies. This is consistent with
the application of the Administrative Decisions (Judicial Review) Act 1977 to
decisions of the Attorney-General to vary or set aside orders arising from a
determination of mental impairment by the Military Court (under the Military Court
of Australia Act 2012) or other civilian court (under the Crimes Act 1914).
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647. The effect of this amendment is to make the decisions of the Attorney-General
under Part 10 of the Military Court Act reviewable under the Administrative
Decisions (Judicial Review) Act 1977.
648. The amendments do not make the decisions of the reviewing authority, court
martial or Defence Force magistrate about mental impairment reviewable under the
Administrative Decisions (Judicial Review) Act 1977. New section 39C to be inserted
in the Judiciary Act 1903 would mean that decisions under the Defence Force
Discipline Act 1982 would be subject to judicial review by the Military Court (see
Item 36 of Schedule 3 of this Bill).
Item 5 - At the end of Schedule 1 Classes of decisions that are not decisions to
which this Act applies
649. This item includes a new paragraph (zg) at the end of Schedule 1 of the
Administrative Decisions (Judicial Review) Act 1977. Schedule 1 lists
Commonwealth Acts or provisions containing decisions to which the Administrative
Decisions (Judicial Review) Act 1977 does not apply. The effect of new paragraph
(zg) to be included in Schedule 1 of the Administrative Decisions (Judicial Review)
Act 1977 provides that decisions under subclause 53(2) and paragraph 14(2)(a) of the
Military Court of Australia Bill 2012 will not be reviewable under the Administrative
Decisions (Judicial Review) Act 1977. Paragraph 14(2)(a) of the Military Court of
Australia Bill 2012 relates to the decisions of the Chief Justice or the
Attorney-General on whether to consent to a Judge or Federal Magistrate sitting (on a
permanent basis) at a location different to where they were assigned upon
appointment. Subclause 53(2) of the Military Court of Australia Bill 2012 relates to
the decisions of the Chief Justice in arranging the business of the Military Court.
650. These decisions relate to the administrative business of the court, and do not
have any substantive impact on a person's rights. The exclusion of these decisions
under Schedule 1 is consistent with the exclusion of equivalent sections in the Federal
Court of Australia Act 1976, the Family Law Act 1975 and the Federal Magistrates
Act 1999 under paragraphs (zd), (ze) and (zf).
Age Discrimination Act 2004
Item 6 - Schedule 1 (table item 22) Laws for which an exemption is provided by
subsection 39(1)
651. This item removes item 22 from the table in Schedule 1 of the Age
Discrimination Act 2004. Existing item 22 exempts anything done in compliance
with the Defence Force Discipline Act 1982 from liability under the Age
Discrimination Act 2004. This amendment is a consequence of the repeal of the
Defence Force Discipline Act 1982 under Schedule 4 of this Bill.
Item 7 - Schedule 1 (after table item 30) Laws for which an exemption is
provided by subsection 39(1)
652. This item inserts a new item 30A to the table in Schedule 1 of the Age
Discrimination Act 2004. This will ensure the exclusion of actions taken in pursuance
96
of the provisions of the Military Court Act from liability under the Age
Discrimination Act 2004.
653. This is necessary because the Military Court of Australia Bill 2012 provides
that a person must not be appointed to that Court as a Judge or a Federal Magistrate if
he or she has attained the age of 70 years (consistently with Chapter III of the
Constitution).
Australian Crime Commission Act 2002
Item 8 - Schedule 1 Prescribed provisions
654. This item amends Schedule 1 to the Australian Crime Commission Act 2002 to
insert a reference to section 168 of the Military Court of Australia Act 2012. Clause
168 allows the Military Court to make orders prohibiting the publication of particular
information where it appears to the Military Court to be necessary to prevent
prejudice to the administration of justice or national security.
655. Schedule 1 contains a list of provisions prescribed for the purposes of
section 20 of that Act. Section 20 of the Australian Crime Commission Act 2002
provides that, subject to a prescribed provision, a person shall not refuse or fail to
comply with a notice to produce certain information under that section. This item
commences at the same time as section 3 of the Military Court of Australia Act 2012
commences.
Australian Security Intelligence Organisation Act 1979
Item 9 - Section 34A (definition of Federal Magistrate)
656. This item repeals the existing definition of `Federal Magistrate', which
restricts its interpretation to Federal Magistrates of the Federal Magistrates Court.
This, along with the amendment to the Acts Interpretation Act 1901 in Item 3 in
Schedule 3 of this Bill, will ensure that references to `Federal Magistrate' in this Act
are read to mean Federal Magistrates of either the Federal Magistrates Court or the
Military Court. This will allow Federal Magistrates of the Military Court to be
eligible for appointment as an issuing authority under the Australian Security
Intelligence Organisation Act 1979, consistent with their counterparts in the Federal
Magistrates Court.
Item 10 - Section 34A (after paragraph (b) of the definition of superior court)
657. This item inserts a new paragraph (ba) after paragraph (b) of the definition of
`superior court' to include the Military Court as a superior court for the purposes of
the Australian Security Intelligence Organisation Act 1979. The term `superior court'
is used only in subsection 34B(1). Subsection 34B(1) provides that the Minister may,
by writing, appoint as a prescribed authority a person who has served as a judge in
one or more superior courts for a period of 5 years and no longer holds a commission
as a judge of a superior court. Under the Australian Security Intelligence
Organisation Act 1979, a person under investigation by ASIO may be brought before
a prescribed authority for questioning.
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658. This amendment means that former judges of the Military Court may be
eligible for appointment as a prescribed authority under the Australian Security
Intelligence Organisation Act 1979, consistently with former judges of other superior
courts.
Crimes Act 1914
Item 11 - Subsection 3C(1) (paragraph (a) of the definition of offence)
659. This item amends an error in the definition of `offence' under subsection
3C(1) of the Crimes Act 1914, which applies to Part IAA (search, information
gathering, arrest and related powers) of that Act. The existing definition effectively
prevents Part 1AA from applying to an offence against the Defence Force Discipline
Act 1982. However, the concept of offences against the Defence Force Discipline Act
1982 does not cover offences that are service offences for the purposes of the Defence
Force Discipline Act 1982, such as ancillary offences and offences against regulations
under the Defence Force Discipline Act 1982.
660. The new definition effectively prevents Part 1AA from applying to service
offences within the meaning of the Defence Force Discipline Act 1982. Since the
Defence Force Discipline Act 1982 makes provision for the investigation and arrest of
ADF members for service offences, it is appropriate that all service offences under the
Defence Force Discipline Act 1982 be excluded from the definition of `offence' for
the purposes of Part IAA.
Item 12 - Section 3ZQL (heading) Definition
661. This item repeals the heading of Section 3ZQL--`Definitions', and substitutes
this heading with `Definition'. This amendment is a consequence of the repeal of the
definition of Federal Magistrate in section 3ZQL (see Item 13 of Schedule 3 of this
Bill).
Item 13 - Section 3ZQL (definition of Federal Magistrate)
662. This item repeals the definition of `Federal Magistrate' in section 3ZQL of the
Crimes Act 1914. The current definition in section 3ZQL has the effect that
references to Federal Magistrate in sections 3ZQO and 3ZQQ of the Crimes Act 1914
means a Federal Magistrate of the Federal Magistrates Court.
663. The repeal of this definition, along with the insertion of a definition of Federal
Magistrate in the Acts Interpretation Act 1901 (see Item 3 of Schedule 3 of this Bill),
will have the effect that the references to Federal Magistrate in sections 3ZQO and
3ZQQ of the Crimes Act 1914 will mean a Federal Magistrate of the Federal
Magistrates Court or the Military Court of Australia. This will allow the persona
designata powers under sections 3ZQO and 3ZQQ of the Crimes Act 1914 to be
conferred on Federal Magistrates of the Military Court as well as Federal Magistrates
of the Federal Magistrates Court.
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Item 14 - At the end of paragraph 4AAA(1)(aa) Commonwealth laws conferring
non-judicial functions and powers on officers
664. This item replaces the reference to `a judge of the Federal Court of Australia'
with `a judge of a federal court' in paragraph 4AAA(1)(aa) of the Crimes Act 1914.
This will ensure that section 4AAA of the Crimes Act 1914 applies to a judge of the
Federal Court of Australia or a judge of the Military Court if, under a law of the
Commonwealth relating to criminal matters, a persona designata power is conferred
on him or her.
Item 15 - Subsection 4AAA(1) (note 1) Commonwealth laws conferring
non-judicial functions and powers on officers
665. This item repeals note 1 under subsection 4AAA(1), which states that
`Magistrate' is defined in section 16C of the Acts Interpretation Act 1901. The item
inserts a new note 1 which states that `Federal Magistrate' and `Magistrate' are
defined in section 16C of the Acts Interpretation Act 1901. This is to assist the reader
in interpreting the reference to Federal Magistrate as meaning both Federal
Magistrates of the Federal Magistrates Court and the Military Court.
Item 16 - Subsection 4AAA(2) Commonwealth laws conferring non-judicial
functions and powers on officers
666. This item replaces the reference to `a judge of the Federal Court of Australia'
with `a judge of a federal court' in subsection 4AAA(2) of the Crimes Act 1914. This
will ensure that subsection 4AAA(2) applies to both a judge of the Federal Court of
Australia and a judge of the Military Court.
Item 17 - Subsection 4AAA(3A) Commonwealth laws conferring non-judicial
functions and powers on officers
667. This item replaces the reference to `a judge of the Federal Court of Australia'
with `a judge of a federal court' in subsection 4AAA(3A) of the Crimes Act 1914.
This will ensure that subsection 4AAA(3A) applies to both a judge of the Federal
Court of Australia and a judge of the Military Court.
Federal Court of Australia Act 1976
Item 18 - Section 18C Appointment of Registrar
668. The effect of this amendment is to include subclauses in section 18C of the
Federal Court of Australia Act 1976. This is consequential to Item 19 which inserts
an additional subclause into the section. The existing section 18C will become
subclause (1). Section 18C provides that the Registrar is appointed by the
Governor-General on the nomination of the Chief Justice.
Item 19 - Section 18C Appointment of Registrar
669. This item inserts a new subclause into section 18C of the Federal Court of
Australia Act 1976. Proposed new subsection 18C(2) will provide that a person who
is a member of the ADF must not be appointed, and cannot hold office, as the
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Registrar. Under clause 3 of the Military Court of Australia Bill 2012, the Registrar
of the Federal Court will also be the Registrar of the Military Court.
670. As the Registrar of the Federal Court may exercise certain adjudicative powers
under the Military Court of Australia Bill 2012, it would not be appropriate for a
member of the ADF to hold the position of Registrar. This amendment ensures that
the Registrar will not be subject to the military chain of command in exercising his or
her functions. This is consistent with the independence of other office holders under
the Military Court of Australia Bill 2012.
Item 20 - Subsection 18J(1) Outside employment of Registrar
671. This item updates subclause references in section 18J of the Federal Court of
Australia Act 1976 consequential to the repeal of subsection 18J(2) in Item 21.
Item 21 - Subsection 18J(2) Outside employment of Registrar
672. This item repeals subsection 18J(2) of the Federal Court of Australia Act
1976. Subsection 18J(2) currently provides that the restriction under subsection (1)
on paid employment outside the duties of the office of Registrar does not apply to
service in the ADF. Proposed new subsection 18C(2) to be inserted by Item 19
provides that a person who is a member of the ADF must not be appointed, and
cannot hold office, as the Registrar.
Federal Magistrates Act 1999
Item 22 - Section 5 (after paragraph (c) of the definition of prior judicial service)
673. This item inserts a new paragraph (ca) in the definition of prior judicial service
to ensure that any prior judicial service by a retired disabled Federal Magistrate of the
Federal Magistrates Court includes prior judicial service as a Federal Magistrate of
the Military Court.
Federal Proceedings (Costs) Act 1981
Item 23 - Subsection 3(1) (after paragraph (b) of the definition of Federal
appeal)
674. This item amends the definition of `federal appeal' in subsection 3(1). This
will ensure that the Federal Proceedings (Costs) Act 1981 applies to appeals from the
Military Court to the High Court, in the same way as appeals from other federal courts
to the High Court.
Item 24 - Subsection 3(1) (definition of Military Court)
675. This item inserts a definition of `Military Court' in subsection 3(1) of the
Federal Proceedings (Costs) Act 1981 to mean the Military Court of Australia. This
is necessary because amendments to provisions in this Act refer to the Military Court.
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Item 25 - Subsection 10(1) Costs certificates--incomplete proceedings
676. This amendment will provide for the application of this section where there
are incomplete proceedings in the Military Court. It will enable a costs certificate to
be granted to the parties before the Military Court where the proceedings are aborted
and puts them on an equal footing with parties before other federal courts.
Items 26 and 27 - Schedule Prescribed maximum amount
677. This schedule is being updated to include the prescribed maximum amount
that can be paid in respect of Military Court proceedings under the Federal
Proceedings (Costs) Act 1981. The amount of $6,000 is equivalent of the maximum
amount currently set for Federal Court proceedings under the Regulations. The note
is included to refer readers to the fact that higher amounts can be prescribed by
regulations. However no regulations have been made in relation to the Military
Court.
Geneva Conventions Act 1957
Item 28 - Subsection 5(2) (definition of court)
678. This item removes the exclusion of `a military court' from the definition of
`court' for the purposes of the Geneva Conventions Act 1957. This is to ensure that
sections 11 to 14 of the Geneva Conventions Act 1957apply to the Military Court if it
tries a service offence committed by a protected prisoner of war. This is possible as
section 7 of the Defence Force Discipline Act 1982 provides that prisoners of war are
subject to the Defence Force Discipline Act 1982 in the same way as members of the
ADF.
679. The protections in the Geneva Convention relative to the Treatment of
Prisoners of War, adopted at Geneva on 12 August 1949, which are outlined in
sections 11 to 14 of the Geneva Conventions Act 1957are for proceedings of a judicial
nature. As the Military Court will be a court exercising the Commonwealth's judicial
power under Chapter III of the Constitution, it is appropriate for sections 11 to 14 to
apply to the Military Court.
Judges (Long Leave Payments) Act 1979
Item 29 - Section 3 (paragraph (a) of the definition of Judge)
680. This item replaces the reference to `the High Court or the Federal Magistrates
Court' in section 3 (paragraph (a) of the definition of `Judge') of the Judges (Long
Leave Payments) Act 1979 with `a Justice of the High Court or a Federal Magistrate'.
Together with the amendments to the Acts Interpretation Act 1901 at Item 3 of
Schedule 3 of this Bill, this ensures that Federal Magistrates of the Military Court are
excluded from the definition of Judge, and therefore excluded from receiving long
leave payments under the Judges (Long Leave Payments) Act 1979, consistently with
Federal Magistrates of the Federal Magistrates Court.
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Item 30 - Section 3 (paragraph (b) of the definition of Judge)
681. This item replaces the reference to `of a court referred to in paragraph (a)'
with `to whom paragraph (a) applies' in section 3 (paragraph (b) of the definition of
`Judge') of the Judges (Long Leave Payments) Act 1979. This is a technical
amendment to reflect the changes in Item 29 of Schedule 3 of this Bill.
Judges' Pensions Act 1968
Item 31 - Subsection 4(1) (paragraph (a) of the definition of Judge)
682. This item replaces the reference to `the Federal Magistrates Court' with `a
Federal Magistrate' in subsection 4(1) (paragraph (a) of the definition of Judge) of the
Judges' Pensions Act 1968. Along with the insertion of a definition of Federal
Magistrate in the Acts Interpretation Act 1901 (see Item 3 of Schedule 3 of this Bill),
this will ensure that Federal Magistrates of the Military Court are excluded from
receiving judges' pensions under the Judges' Pensions Act 1968, consistently with
Federal Magistrates of the Federal Magistrates Court.
Item 32 - Subsection 4(1) (paragraph (b) of the definition of Judge)
683. This item replaces the reference to `of a court referred to in paragraph (a)'
with `to whom paragraph (a) applies' in subsection 4(1) (paragraph (a) of the
definition of Judge) of the Judges' Pensions Act 1968. This is a technical amendment
to reflect the changes in item 31 of Schedule 3 of this Bill.
Judiciary Act 1903
Item 33 - Paragraph 23(2)(a) Decision in case of difference of opinion
684. This item amends paragraph 23(2)(a) of the Judiciary Act 1903 to ensure that
section 23 applies to the Military Court, consistently with other federal courts.
Subsection 23(2) of the Judiciary Act 1903 operates to determine how questions
affecting the constitutional powers of the Commonwealth are to be decided by a Full
Court that is equally divided in opinion. This amendment will provide for the same
rules to apply to the Full Court of the Military Court as apply to the Full Courts of
other federal courts.
Item 34 - Section 39B (heading) Original jurisdiction of the Federal Court of
Australia
685. This item repeals the heading of Section 39B--`Original jurisdiction of the
Federal Court of Australia'. It substitutes this heading with `Original jurisdiction of
the Federal Court of Australia--general'. This amendment is a consequence of the
new section 39C, which will have the heading `Original jurisdiction of the Federal
Court of Australia--certain writs relating to prosecutions for service offences' (see
Item 36 of Schedule 3 of this Bill).
Item 35 - Subsection 39B(1) Original jurisdiction of Federal Court of Australia
686. This item ensures that subsection 39B(1) has effect, subject to
subsections 39C(1) and (2). Subsection 39B(1) generally provides that the original
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jurisdiction of the Federal Court includes jurisdiction with respect to any matter in
which a writ of mandamus or prohibition or an injunction is sought against an officer
or officers of the Commonwealth. This item ensures that this provision operates
subject to new subsection 39C(1) and (2) (inserted by Item 36 of Schedule 3 of this
Bill), which specifically provides that the Federal Court does not have jurisdiction
with respect to such matters if it relates to a decision to prosecute a person in the
Military Court for a service offence. This is because the Military Court will have
jurisdiction to deal with such matters.
Item 36 - At the end of Part VI Original jurisdiction of Federal Court of
Australia - certain writs relating to prosecutions for service offences
687. This item inserts a new section 39C at the end of Part VI of the Judiciary
Act 1903. New section 39C provides that the Federal Court does not have jurisdiction
with respect to any matter in which a writ of mandamus or prohibition or an
injunction is sought against an officer or officers of the Commonwealth, if it relates to
a decision an officer or officers of the Commonwealth to prosecute a person in the
Military Court for a service offence. New section 39C invests the Military Court with
jurisdiction in respect to these matters.
688. Subsection 39C(2) provides that this conferral of jurisdiction on the Military
Court instead of the Federal Court extends to a writ of mandamus or prohibition, or an
injunction sought against an officer or officers of the Commonwealth in relation to a
`related criminal justice process decision'. `A related criminal justice process
decision' refers to the decisions of the DMP and CDPP about whether to prosecute a
service offence which has an equivalent offence under criminal law in the criminal
justice system or the military justice system. Subsection 39C(2) only applies if the
writ of mandamus or prohibition, or an injunction is sought while the service offence
is being prosecuted, or an appeal in relation to it is being heard, in the Military Court.
689. Subsection 39C(3) provides that if the writ of mandamus or prohibition, or an
injunction is sought before the commencement of a prosecution in the Military Court
for a service offence, then it can be sought in the Federal Court, rather than the
Military Court.
690. Subsection 39C(4) provides that if subsection 39C(3) applies, then the
prosecutor may apply to the Military Court for a permanent stay of the proceedings,
and the Military Court may grant such stay if it determines that the matter is more
appropriately dealt with in the criminal justice process, and a stay of proceedings will
not substantially prejudice the person.
691. Subsection 39C(5) clarifies that this section has effect despite other laws.
Subsection 39C(6) defines `related criminal justice process decision' consistently with
the definition under subsection 39B(3).
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Legislative Instruments Act 2003
Item 37 - Section 9 Rules of court are not legislative instruments
692. This item amends section 9 of the Legislative Instruments Act 2003 to ensure
that the rules of the Military Court of Australia are not legislative instruments for the
purposes of that Act. This is consistent with the rules of other federal courts.
Military Court of Australia Act 2012
Item 38 - Subsection 170(5) (note)
693. This item repeals the note under subsection 170(5), which directs the reader to
refer to the Evidence and Procedure (New Zealand) Act 1994, and substitutes a new
note which directs the reader to refer to Part 6 of the Trans-Tasman Proceedings
Act 2010. This is a consequence of the repeal of the former Act and replacement with
the latter Act.
Item 39 - Subsection 171(3) (note)
694. This item repeals the note under subsection 171(3), which directs the reader to
see the Evidence and Procedure (New Zealand) Act 1994, and inserts a new note
which directs the reader to see Part 6 of the Trans-Tasman Proceedings Act 2010.
This is a consequence of the repeal of the former Act and replacement with the latter
Act.
Item 40 - Section 175
695. This item repeals the reference to the Evidence and Procedure (New Zealand)
Act 1994 in section 175, and inserts a new reference to the Trans-Tasman
Proceedings Act 2010. This is a consequence of the repeal of the former Act and
replacement with the latter Act.
National Security Information (Criminal and Civil Proceedings) Act 2004
Item 41 - Section 7 (definition of prosecutor)
696. This item amends the definition of `prosecutor' in section 7 of the National
Security Information (Criminal and Civil Proceedings) Act 2004 to include the DMP.
The National Security Information (Criminal and Civil Proceedings) Act 2004
provides a framework for preventing the disclosure of information in federal criminal
and civil proceedings where the disclosure would be likely to prejudice national
security, except to the extent that preventing the disclosure would seriously interfere
with the administration of justice. Section 6 of the National Security Information
(Criminal and Civil Proceedings) Act 2004 provides that the Act applies to a federal
criminal proceeding if the prosecutor gives notice in writing to the defendant, the
defendant's legal representative and the court that the Act applies to the proceeding.
697. The existing definition of `prosecutor' in section 7 of the National Security
Information (Criminal and Civil Proceedings) Act 2004 means the Director of Public
Prosecutions or a person representing the Director in relation to the proceeding. The
effect of this amendment is to ensure that the National Security Information (Criminal
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and Civil Proceedings) Act 2004 is able to be applied to Military Court proceedings in
which the prosecutor is the Director of Military Prosecutions.
Item 42 - Paragraph 13(2)(f) Meaning of criminal proceeding
698. This item inserts `or 39C(1)' after the reference to `39B(1B)' in
paragraph13(2)(f). This is a consequence of the insertion of new section 39C in
Item 36 of Schedule 3 of this Bill.
Item 43 - Subparagraph 13(2)(f)(ii) Meaning of criminal proceeding
699. This item removes the reference to `of that Act', and inserts `or 39C(6) of that
Act, as the case requires'. This is a consequence of the insertion of new section 39C
in Item 36 of Schedule 3 of this Bill.
Item 44 - Section 14 Meaning of federal criminal proceeding
700. This item provides that the text of existing section 14 will become
subsection (1). This is a consequence of Item 45 of Schedule 3 of this Bill, which
inserts a new subsection 14(2) at the end of section 14.
Item 45 - At the end of section 14 Meaning of federal criminal proceeding
701. This item inserts a new subsection 14(2) which, to avoid doubt, clarifies that
proceedings before a court martial or a Defence Force magistrate are not federal
criminal proceedings for the purposes of the National Security Information (Criminal
and Civil Proceedings) Act 2004. However appeals or other proceedings before the
Military Court from a court martial or Defence Force magistrate are federal criminal
proceedings for the purposes of this Act.
702. The effect of this amendment is to ensure the National Security Information
(Criminal and Civil Proceedings) Act 2004 does not apply to court martial and
Defence Force magistrate proceedings. This is because court martial and Defence
Force magistrate proceedings are not proceedings before a court. They are akin to
tribunal proceedings, to which the National Security Information (Criminal and Civil
Proceedings) Act 2004 is not intended to apply.
Trans-Tasman Proceedings Act 2010
Item 46 - Subsection 109(3)
703. This item inserts a reference to the Military Court in subsection 109(3) of the
Trans-Tasman Proceedings Act 2010. The effect of this amendment is to ensure that
if, in a proceeding in the Military Court, a matter arises in relation to which rules or
regulations have not been made prescribing matters necessary for carrying out or
giving effect to the Trans-Tasman Proceedings Act 2010, then the Federal Court rules
apply with such modifications as are necessary. This is consistent with the practice in
proceedings before the Federal Court, the Family Court and the Federal Magistrates
Court.
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Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010
Item 47 and 48 - Part 3 of Schedule 2 (heading relating to the Defence Force
Discipline Act 1982); Items 10, 11 and 12 of Schedule 2
704. These items will repeal the items in the Trans-Tasman Proceedings
(Transitional and Consequential Provisions) Act 2010, which amend subsections
148A(5) and 148B(3) and section 148F of the Defence Force Discipline Act 1982.
705. Items 10, 11 and 12 are repealed because this Bill, which inserts a new
Schedule 3B of the Defence Force Discipline Act 1982, is expected to commence
before the commencement of the Trans-Tasman Proceedings (Transitional and
Consequential Provisions) Act 2010. Items 10, 11 and 12 replace references to the
Evidence and Procedure (New Zealand) Act 1994 in existing subsections 148A(5) and
148B(3) and section 148F of the Defence Force Discipline Act 1982 with references
to the Trans-Tasman Proceedings Act 2010.
706. Schedule 3B contains new provisions modelled on existing subsections
148A(5) and 148B(3) and section 148F which remove the references to the Evidence
and Procedure (New Zealand) Act 1994. These references have not been replaced
with the Trans-Tasman Proceedings Act 2010 because court martial and Defence
Force magistrates will have restricted operation to matters tried outside of Australia.
The Trans-Tasman Proceedings Act 2010 is intended to facilitate the obtaining of
evidence in litigation involving Trans-Tasman elements.
Part 2--Contingent amendments
Division 1--Amendments relating to judicial misbehaviour and incapacity
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012
Item 49 - Section 4 Guide to this Act
707. This item amends the text of the guide to the Judicial Misbehaviour and
Incapacity (Parliamentary Commissions) Bill 2012 to clarify that a judicial officer of
the Military Court will be covered by that Bill.
708. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions)
Bill 2012 provides a standard mechanism to assist the Parliament in its consideration
of removal of a judge or federal magistrate from office under the Constitution.
Paragraph 72(ii) of the Constitution provides that Justices of the High Court and other
courts created by the Parliament shall not be removed except by the
Governor-General in Council, on an address from both Houses of the Parliament in
the same session, praying for such removal on the ground of proved misbehaviour or
incapacity.
709. As judicial officers of the Military Court will be subject to paragraph 72(ii) of
the Constitution by virtue of their status as Chapter III justices, it is appropriate that
the framework under the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Bill 2012 applies consistently to them as a federal judicial officer.
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Item 50 - Section 7 (paragraph (b) of the definition of Commonwealth judicial
officer)
710. This item amends the definition of `Commonwealth judicial officer' in the
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 to
confirm judicial officers of the Military Court will be covered by the Bill consistently
with judicial officers of other federal courts.
711. This item removes references to a Federal Magistrate of the Federal
Magistrates Court and substitutes references to `Federal Magistrate'. This is
consequential to Item 3 of Schedule 3 to this Bill, which inserts a new subsection
16C(4) in the Acts Interpretation Act 1901 to define the term `Federal Magistrate'.
The new definition will clarify that unless the contrary intention appears, references to
`Federal Magistrate' in Commonwealth legislation means a `Federal Magistrate of the
Federal Magistrates Court or the Military Court of Australia'.
712. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions)
Bill 2012 enables a Commission to be established where each House of the
Parliament passes in the same session, a resolution that a Commission be established
to investigate a specified allegation of misbehaviour or incapacity of a specified
Commonwealth judicial officer.
713. `Commonwealth judicial officer' is currently defined in the Judicial
Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 to mean a
Justice of the High Court, a judge or justice of a court created by the Parliament (other
than the Federal Magistrates Court), and a Federal Magistrate of the Federal
Magistrates Court.
714. Judicial officers of the Military Court will be subject to paragraph 72(ii) of the
Constitution by virtue of their status as Chapter III justices. This amendment will
ensure that that the framework under the Judicial Misbehaviour and Incapacity
(Parliamentary Commissions) Bill 2012 applies consistently to all federal judicial
officers.
Item 51 - Section 7 (definition of Federal Magistrate)
715. This item removes the definition of `Federal Magistrate' in clause 7 of the
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. This
is consequential to Item 3 of Schedule 3 to this Bill, which inserts a new subsection
16C(4) in the Acts Interpretation Act 1901 to define the term `Federal Magistrate'.
716. The new definition in the Acts Interpretation Act 1901 will clarify that, unless
the contrary intention appears, references to `Federal Magistrate' in Commonwealth
legislation means a `Federal Magistrate of the Federal Magistrates Court or the
Military Court of Australia'.
Item 52 - After paragraph 19(6)(a)
717. This item inserts a new paragraph 19(6)(ab) into the Judicial Misbehaviour
and Incapacity (Parliamentary Commissions) Bill 2012. The effect of this amendment
is to include as an example of an `official investigation' an investigation into a
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complaint about a Judge or Federal Magistrate of the Military Court within the
meaning of the Military Court of Australia Act 2012.
718. Subclause 19(2) of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Bill 2012 requires a Parliamentary Commission to consider the
outcome of any previous official inquiry or official investigation into an allegation of
misbehaviour or incapacity to the extent that the Commission thinks it necessary or
desirable to do so. Subclause 19(3) of the Judicial Misbehaviour and Incapacity
(Parliamentary Commissions) Bill 2012 provides that a Commission will not be
precluded by any other law or privilege from accessing evidence given at, or findings
made as a result of, such an inquiry or investigation.
719. Official investigation will include investigations conducted under the judicial
complaints handling process within the Federal Court of Australia, Family Court of
Australia or Federal Magistrates Court. These processes are supported by the Court
Legislation Amendment (Judicial Complaints) Bill 2012.
720. Items 59 and 60 of Schedule 3 to this Bill provide a statutory basis for
handling complaints about judicial processes within the Military Court. These
processes are modelled on amendments relating to other federal courts in the Court
Legislation Amendment (Judicial Complaints) Bill 2012.
721. The amendments in Items 53 to 63 of Schedule 3 to this Bill are designed to
ensure consistency with the position of investigations and handling of complaints
about judicial processes in the Federal Court of Australia, Family Court of Australia
or Federal Magistrates Court. The effect of these amendments will be to ensure that
the outcomes of any investigation occurring within the Military Court's judicial
complaints handling processes would be able to be considered by a Parliamentary
Commission in the course of an investigation.
722. These amendments will commence as specified in clause 2 of this Bill.
Division 2--Amendments relating to judicial complaints
Freedom of Information Act 1982
Item 53 - After subsection 5(1A)
723. This item inserts an additional subclause to provide a broad exclusion from the
operation of the Freedom of Information Act 1982 for documents of a court that relate
to complaints handling processes within the Military Court of Australia.
724. New subclause 53(1AA) provides that the Act does not apply to any request
for access to a document of a court (other than a court of Norfolk Island) that relates
to complaint handler (or a body consisting of complaint handlers) exercising powers
or performing functions under paragraph 52(2)(c) and subclause 52(2A) of the
Military Court of Australia Bill 2012 or assisting in exercising those powers or
performing those functions. Any documents of a court will be covered by the
exclusion, including where a complaint has been transferred between courts due to the
complaint being misdirected.
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725. New subclause 53(1AA) also provides that the term `complaint handler' has
the meaning given by the Military Court of Australia Bill 2012. This definition is
inserted by Item 55 of Schedule 3 to this Bill.
726. This amendment is designed to ensure consistency with the exclusion of
documents that relate to complaints handling processes with the Federal Court of
Australia, Family Court of Australia and Federal Magistrates Court (see Item 35 of
Schedule 1 to the Courts Legislation Amendment (Judicial Complaints) Bill 2012).
727. The exclusion of documents that relate to complaints handling processes
within the Military Court from the operation of the Freedom of Information Act 1982
will protect potentially sensitive documents that arise in the course of a head of
jurisdiction (or complaint handler) dealing with a complaint about a judicial officer.
Military Court of Australia Act 2012
Item 54 - Section 3 definition of complaint
728. This item inserts into section 3 of the Military Court of Australia Act 2012 a
new definition of `complaint'. Clause 3 of the Military Court of Australia Bill
provides for definitions used in the Bill. A `complaint' for the purposes of the
Military Court of Australia Act 2012 will mean a complaint mentioned in paragraph
53(2)(c) (see Item 59 of Schedule 3 to this Bill).
Item 55 - Section 3 definition of complaint handler
729. This item inserts into section 3 of the Military Court of Australia Act 2012 a
new definition of `complaint handler'. Clause 3 of the Military Court of Australia
Bill provides for definitions used in the Bill. The amendment will mean that a
`complaint handler' for the purposes of the Military Court of Australia Act 2012 is the
Chief Justice, a person authorised by the Chief Justice under subclause 53(2B), or a
person who is a member of a body authorised by the Chief Justice under subclause
53(2B) (see Item 60 of Schedule 3 to this Bill).
Item 56 - Section 3 definition of handle a complaint
730. This item inserts into section 3 of the Military Court of Australia Act 2012 a
definition of `handle' a complaint. Clause 3 of the Military Court of Australia Bill
2012 provides for definitions used in the Bill. The term `handle' in relation to a
complaint is used in a number of locations in the amendments contained in this Bill to
both the Military Court of Australia Bill 2012 and the Freedom of Information Act
1982. For example, proposed new subclause 53(2A) of the Military Court of
Australia Bill 2012 provides the Chief Justice with power to `handle a complaint'
about another Judge or Federal Magistrate in certain circumstances (see Item 60 of
Schedule 3 to this Bill).
731. Clause 3 of the Military Court of Australia Bill 2102 defines `judge' to mean a
Judge of the Military Court (including the Chief Justice) and `Federal Magistrate' to
mean a Federal Magistrate of the Military Court.
732. Under the proposed new definition, `handle' a complaint will mean to do one
or more of the following:
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· considering the complaint
· investigating the complaint
· reporting on an investigation of the complaint
· dealing with a report of an investigation of the complaint
· disposing of the complaint
· referring the complaint on to another person or body.
733. This broad definition gives a person who may be handling a complaint a high
degree of flexibility in taking action appropriate to an individual complaint. For
example, it would enable the Chief Justice to refer a complaint to a Conduct
Committee and enable the Conduct Committee to investigate the complaint and
provide a report to the Chief Justice for further consideration.
734. Disposing of a complaint may include dismissing the complaint. Proposed
new subclause 53(2A) enables the Chief Justice, or a complaint handler, to deal with a
complaint by dismissing the complaint (Item 60 of Schedule 3 to this Bill). The
ability of a person to dismiss a complaint summarily does not affect the ability of a
person handling a complaint to dispose of a complaint by dismissing it where the
person considers this to be appropriate in the circumstances, including where it is not
substantiated on further investigation.
Item 57 - Section 3 definition of relevant belief
735. This item inserts into section 3 of the Military Court of Australia Act 2012 a
definition of `relevant belief'. Clause 3 of the Military Court of Australia Bill 2012
provides for definitions used in the Bill. This term is used in new subclause 53(2A)
(see Item 60 of Schedule 3 to this Bill). The definition applies where a person has a
relevant belief in relation to a complaint about a Judge. A person has such a belief if:
· the person believes that circumstances giving rise to a complaint may, if
substantiated, justify consideration of removal of a judge in accordance with
paragraph 72(ii) of the Constitution, or
· the person believes that circumstances giving rise to a complaint may, if
substantiated, adversely affect performance of judicial or official duties by the
other judge, or have capacity to adversely affect the reputation of the Court of
which the judge is a member.
736. Having a relevant belief enables a Chief Justice or complaint handler to take
certain actions, such as handling a complaint (see new paragraphs 53(2A))(a)(ii) and
(b)(ii) inserted by Item 60 of Schedule 3 to this Bill).
Item 58 - After Section 48
737. This item inserts a new section 48A in the Military Court of Australia
Act 2012 to outline broad protections afforded to participants in the process of dealing
with complaints about judges or Federal Magistrates of the Military Court. Division 6
of Part 3 of the Military Court of Australia Bill 2012 deals with miscellaneous
administrative matters in the management of the Military Court.
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738. This clause is designed to promote effectiveness of the judicial complaints
process by enabling appropriate people to participate in the process to the extent
possible without fear of prosecution or liability on behalf of those assisting the
complaint handler.
739. Subclause 48A(1) affords broad protection and immunity to a complaint
handler, in exercising powers or performing functions under new paragraph 53(2)(c)
and subclause 53(2), or assisting in exercising those powers or performing those
functions. The level of protection and immunity under subclause 48A(1) is the same
as for a Justice of the High Court. A definition of `complaint handler' is inserted by
Item 56 of Schedule 3 to this Bill.
740. Subclause 48A(2) affords broad protection and immunity to the Chief Justice
in authorising a person or body under subclause 53(2B). The level of protection and
immunity under subclause 48A(2) is the same as for a Justice of the High Court .
These protections are in addition to existing protections and immunities of the Chief
Justice under the Military Court of Australia Bill 2012.
741. Subclause 48A(3) affords broad protection and immunity for a witness
requested to attend, or appearing before a complaint handler handling a complaint. A
witness has the same protection, and is subject to the same liabilities, as a witness in a
case before the High Court. As processes may vary in formality depending on the
circumstances, a witness will include a person who provides information to a
complaint handler in the course of the handling of a complaint.
742. Subclause 48A(4) affords broad protection and immunity for a legal
practitioner assisting the complaint handler, or representing a person appearing before
a complaint handler. The level of protection and immunity is the same as a barrister
appearing for a party in proceedings in the High Court.
743. The protections and immunities in this clause are in addition to, and do not
limit, other protections and immunities which may apply in the circumstances.
Item 59 - At the end of subsection 53(2)
744. This item inserts two additional paragraphs relating to the power of the Chief
Justice of the Military Court to deal with a complaint about performance by another
judge or Federal Magistrate of his or her judicial or official duties. Subclause 53(2) of
the Military Court of Australia Bill 2012 includes specific powers of the Chief Justice
in discharging his or her broad responsibility for ensuring the effective, orderly and
expeditious discharge of the business of the Court under subclause 53(1).
745. Proposed new paragraph 53(2)(c) extends the Chief Justice's specific powers
to include a power to deal with a complaint about the performance by another judge
or Federal Magistrate of his or her judicial or official duties. The paragraph requires
the Chief Justice to deal with such a complaint in accordance with the process set out
in new subclause 53(2A) (inserted by Item 60 of Schedule 3 to this Bill).
746. A complaint about performance by another judge or Federal Magistrate of his
or her judicial or official duties will not include complaints about matters in cases that
are capable of being raised in an appeal. Such complaints are properly matters for
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judicial determination. It may be necessary for the Chief Justice (or other complaint
handler) to consider whether the complaint relates to a matter capable of being raised
on appeal.
747. The performance of official duties would extend the circumstances in which a
complaint may be dealt with. An example would include where a judge or Federal
Magistrate is representing the Court in an official capacity or where the judge or
Federal Magistrate is undertaking certain official functions in their personal capacity
(whether in Australia or overseas).
748. Proposed new paragraph 53(2)(d) gives the Chief Justice power to take any
measures that he or she believes are reasonably necessary to maintain public
confidence in the Court. This includes the ability to temporarily restrict another judge
or Federal Magistrate to non-sitting duties. This power operates whether or not there
has been a complaint about the judicial officer.
749. This paragraph enables a Chief Justice to take timely action that he or she
believes is reasonably necessary to maintain public confidence in the Court. The
Chief Justice would need to establish a clear basis for his or her belief that measures
are reasonably necessary to maintain public confidence in the Court. Measures are
characterised in terms of facilitating the smooth operation of the Court, rather than
disciplinary action directed at a judge or Federal Magistrate. The type of measure that
might be taken would be consistent with the Chief Justice's responsibilities for
ensuring the effective discharge of the business of the court.
750. Proposed new paragraphs 53(2)(c) and (d) do not limit action that the
Chief Justice may take in discharging his or her general obligation to ensure the
effective, orderly and expeditious discharge of the business of the Court. The
paragraphs support the existing powers of the Chief Justice by providing express
mechanism by which complaints arising in a wide variety of circumstances may be
dealt with.
751. Clause 19 of the Military Court of Australia Bill 2012 will enable the next
most senior Military Court Judge who is available and willing to do so to exercise
these powers where the Chief Justice is absent from duty or there is a vacancy in the
office of Chief Justice.
752. Clause 3 of the Military Court of Australia Bill 2012 defines `Judge' to mean a
Judge of the Military Court (including the Chief Justice), and `Federal Magistrate' to
mean a Federal Magistrate of the Military Court.
Item 60 - After subsection 53(2)
753. This item inserts new subclauses 53(2A) and (2B) into the Military Court of
Australia Bill 2012 to outline the process to be followed by the Chief Justice of the
Military Court in dealing with a complaint about the performance by another judge or
Federal Magistrate of the Military Court of his or her performance of their judicial or
official duties. New paragraph 53(2)(c) requires the Chief Justice to deal with such a
complaint pursuant to the process set out in the new subclauses 53(2A).
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754. Where a complaint is made about another judge or Federal Magistrate, new
subclause 53(2A) enables the Chief Justice to deal with the complaint as outlined in
the subclause. The Chief Justice may do either or both of the options under new
paragraphs 53(2A)(a) and (b).
755. Under new paragraph 53(2A)(a), the Chief Justice may decide whether or not
to handle the complaint. The Chief Justice may then take one of the following
actions:
· dismiss the complaint (paragraph 53(2A)(a)(i))
· handle the complaint if the Chief Justice has a relevant belief in relation to the
complaint about the other judge (53(2A)(a)(ii)). A definition of `relevant
belief' is inserted into the Military Court of Australia Bill 2012 by Item 57 of
Schedule 3 to this Bill. A definition of `handle' a complaint is inserted by
Item 56 of Schedule 3 to this Bill.
· arrange for any other complaint handlers to handle, or assist to handle, the
complaint if the Chief Justice has a relevant belief in relation to the complaint
about the other judge (paragraph 53(2A)(a)(iii)).
756. Under new paragraph 53(2A)(b), the Chief Justice may arrange for any other
complaint handlers to decide whether or not to handle the complaint, and then take
one of the following actions:
· dismiss the complaint (paragraph 53(2A)(b)(i))
· handle the complaint if the complaint handler has a relevant belief in relation
to the complaint about the other judge (paragraph 53(2A)(b)(ii)).
757. The powers of another complaint handler under new paragraph 53(2A)(b) are
similar to those of the Chief Justice under new paragraph 53(2A)(a) . This enables the
Chief Justice to arrange with a complaint handler to deal with complaint without
needing to conduct preliminary investigations into a complaint. Authorisations may
be made on a standing basis (see new subclause 53(2B) inserted by this item).
758. The note to subclause 53(2A) clarifies that a complaint handler (other than the
Chief Justice) may handle a complaint by referring it to the Chief Justice. The Chief
Justice may then do either or both of the things referred to in paragraphs (a) or (b) in
respect of the complaint.
759. This subclause gives the Chief Justice a high degree of flexibility to deal with
complaints as they consider appropriate, including to manage complaints on a case by
case basis.
760. A complaint about performance by another Judge or Federal Magistrate of his
or her judicial or official duties will not include complaints about matters in cases that
are capable of being raised in an appeal. Such complaints are properly matters for
judicial determination. It may be necessary for the Chief Justice or other complaint
handler to consider whether the complaint relates to a matter capable of being raised
on appeal.
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761. These powers do not limit the ability of a Chief Justice to refer a matter to the
Parliament for consideration of removal of a judge or Federal Magistrate under
paragraph 72(ii) of the Constitution if they consider this justified at any time.
762. The actions the Chief Justice or complaint handler may take to `handle' a
complaint include investigating a complaint, referring the complaint to another
person, or disposing of a complaint (see definition of `handle' a complaint inserted by
Item 56 of Schedule 3 to this Bill). The ability of the Chief Justice or a complaint
handler to dismiss a complaint summarily under proposed paragraphs 53(2A)(a)(i)
and (b)(i) does not affect the ability of a person handling a complaint to dispose of a
complaint by dismissing it where the person considers this to be appropriate in the
circumstances, including where the complaint has not been substantiated following
investigation of the complaint.
763. A `complaint handler' includes a person or member of a body authorised by
the Chief Justice to handle a complaint under subclause 53(2B) (see below and Item
56 of Schedule 3 to this Bill).
764. Subclause 53(2B) gives power to the Chief Justice to authorise a person or
body to assist the Chief Justice to handle complaints, decide whether or not to handle
complaints, dismiss complaints or handle complaints. Authorisations may be made
either generally or in relation to a specified complaint. An authorisation must be in
writing.
765. Subclause 53(2B) gives discretion to the Chief Justice as to the person or body
which may be authorised to consider and handle a complaint. This is necessary to
ensure a high degree of flexibility for the Chief Justice in complaints handling
processes, which may involve a wide variety of circumstances. An authorisation in
writing provides certainty for the person or body involved in dealing with complaints.
766. It is expected that a person authorised to handle a complaint would not be a
current judge or Federal Magistrate of the same court as the judge or Federal
Magistrate who is the subject of the complaint, and that the person would be of
appropriate seniority to handle a complaint. For example, where a person authorised
to consider or handle a complaint is a sitting or retired judge, it is expected that they
would be of equivalent or higher seniority to the judge who is the subject of an
investigation.
Item 61 - At the end of subsection 53(3)
767. This item inserts a note at the end of subclause 53(3) to refer to proposed new
clause 48A inserted into the Military Court of Australia Bill 2012 by this Bill.
Subclause 53(3) affords certain protection and immunity to the Chief Justice of the
Military Court in the exercise of the functions or powers mentioned in
paragraph 53(2)(a) of the Military Court of Australia Bill 2012.
768. New clause 48A is inserted by item 58 of the Bill and affords certain
protections to persons involved in dealing with complaints about judges. The
protections under new clause 48A would be in addition to existing protections and
immunities of the Chief Justice.
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Item 62 - At the end of subsection 53(4)
769. This item includes new subclauses 53(2A) or 53(2B) within the scope of
subclause 53(4) of the Military Court of Australia Bill 2012. Subclause 53(2)
excludes the jurisdiction of the Federal Court of Australia under section 39B of the
Judiciary Act 1903 with respect to a matter relating to the exercise by the Chief
Justice of the functions or powers mentioned in subsection 53(2).
770. New subclauses 53(2A) and (2B), together, enable the Chief Justice to deal
with complaints about the performance by another judge or Federal Magistrate of his
or her judicial or official duties, including authorising a person or body to consider,
handle or assist with the handling of complaints (see Item 60 of Schedule 3 to this
Bill).
771. This amendment has the effect that the Federal Court of Australia will not
have jurisdiction with respect to a matter relating to the exercise by the Chief Justice
of the Military Court of his or her functions and powers relating to the handling of
complaints about judicial officers under new subclauses 53(2A) and (2B).
Item 63 - Application of items 55 to 63
772. This item provides for the application of the amendments made by items 54 to
62 of Schedule 3 to this Bill. Items 54 to 62 provide powers, protections and
immunities in relation to complaints about judges or Federal Magistrates within the
Military Court.
773. The amendments will apply on or after commencement of this item in relation
to a complaint, regardless of whether a complaint was made before, on or after
commencement, and regardless of whether the circumstances that gave rise to the
complaint occurred before, on or after that commencement.
774. This item enables the new judicial complaints handling process to be used
where a complaint relates to behaviour or conduct that was engaged in prior to
commencement of this item.
Division 3--Amendments relating to suppression and non-publication orders
Australian Crime Commission Act 2002
Item 64 - Schedule 1 Prescribed provisions
775. This item amends Schedule 1 to the Australian Crime Commission Act 2002,
which contains a list of provisions prescribed for the purposes of section 20 of that
Act. Section 20 of the Australian Crime Commission Act 2002 provides that, subject
to a prescribed provision, a person shall not refuse or fail to comply with a notice to
produce certain information under that section.
776. The item omits the reference to section 168 of the Military Court of Australia
Act 2012, since this provision is being repealed by this Part. Instead, reference will be
included to the new provisions dealing with suppression and non-publication orders,
being Part 11A of the Military Court of Australia Act 2012. These provisions mirror
suppression and non-publication order provisions included in the Access to Justice
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(Federal Jurisdiction) Amendment Bill 2012. This amendment will commence as
specified in clause 2 of this Bill.
Military Court of Australia Act 2012
Item 65 - Section 3 (definition of information)
777. This item inserts a definition of `information' for the purposes of Part 11A.
This definition is only applicable to Part 11A. The definition of `information' is
deliberately broad and includes document. The term `document' is defined in the Acts
Interpretation Act 1901.
Item 66 - Section 3 (definition of news publisher)
778. This item inserts a definition of `news publisher'. The definition of `news
publisher' means persons engaged in the business of publishing news or a public or
community broadcasting service engaged in publishing news through public news
medium. This definition will extend to news publishers who publish via the internet,
as well as the more traditional print, television and radio news publishers (see
definition of `publish'). The definition of `persons' under the Acts Interpretation Act
1901 extends to bodies corporate as well as natural persons. This definition of `news
publisher' is relevant to the provisions giving standing to news publishers to appear
upon the hearing of an application for a suppression or non-publication order
(paragraph 180H(2)(d)) and allowing court officials to disclose the existence and
contents of suppression and non-publication orders to news publishers
(paragraph 180L(b)).
Item 67 - Section 3 (definition of non-publication order)
779. This item inserts a new definition of `non-publication order'. The definition
of `non-publication order' assists in highlighting the difference between this kind of
order and a suppression order. While a non-publication order prohibits the
publication of information (see definition of `publish'), it does not prohibit disclosure
of that information in another way. For example, a non-publication order might allow
the news publishers or the general public access to certain information, but not allow
them to publish it.
Item 68 -Section 3 (definition of party)
780. This item repeals the existing definition of `party' in section 3 and substitutes
a new definition. The definition of `party' for the purposes of the Act includes the
accused person and the Director of Military Prosecutions. The definition of party for
the purposes of Part 11A is broader and includes the victim, alleged victim or other
person named in evidence. This element of the definition may be relevant where an
application for a suppression or non-publication order is made based on the grounds
set out in paragraph 180G(1)(d) (where the order is necessary to avoid causing undue
distress or embarrassment to a party... in proceedings involving an offence of a sexual
nature). This is because evidence of such matters may be given in Military Court
proceedings.
Item 69 -Section 3 (definition of publish)
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781. The definition of `publish' for the purposes of Part 11A means dissemination
or provision of access to the public or a section of the public by any means, with some
examples being given of means of publication, including the internet.
Item 70 -Section 3 (definition of suppression order)
782. The definition of `suppression order' assists in highlighting the difference
between this kind of order and a `non-publication order'. A suppression order not
only prohibits the publication of information but also prohibits other forms of
disclosure, which could be narrower than publication (for example, disclosure to
particular persons).
Item 71 - Subsection 79(1) (note)
783. This item repeals the existing note which refers to the Court's powers to
protect witnesses pursuant to 167 and to restrict or prohibit the publication of
information about witnesses and evidence pursuant to section 168. A replacement
note will refer to the Court's powers pursuant to section 167 to protect witnesses and
to the Court's powers to make suppression and non-publication orders under the new
Part 11A.
Item 72 - Subsection 158(5)
784. This item removes the reference to section 168 in subsection 158(5) and
replaces it with a reference to Part 11A.
Item 73 - Subsection 167(1)
785. This item removes the existing note in subsection 167(1) which refers to s 168
and replaces it with a note that refers to the Court's powers to make suppression
and non-publication orders under Part 11A.
Item 74 - Section 168 Prohibition or restriction on publication of evidence etc
786. This item repeals section 168 of the Military Court of Australia Act 2012.
This section will no longer be necessary, since a more comprehensive regime for
making suppression and non-publication orders will be set out in Part 11A of the
Military Court of Australia Act 2012
787. Section 168 of the Military Court of Australia Act 2012 enables the Military
Court to make an order forbidding or suppressing the publication of particular
evidence, or the name of a party or witness, as appears to the Court to be necessary in
order to prevent prejudice to the administration of justice or the security of the
Commonwealth.
Item 75 - after Part 11 Insertion of Part 11A - Suppression and non-publication
orders
Division 1 - Introduction
788. This item adds a new Part 11A to the Military Court of Australia Act 2012, to
include the power to make suppression and non-publication orders consistent with the
powers given to other federal courts by virtue of the Access to Justice (Federal
Jurisdiction) Bill 2012.
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Clause 180A - Guide to this Part
789. This clause sets out a guide to Part 11A of the Bill. The guide will assist
readers to understand the purpose and content of the Part, and to more easily navigate
through the Part to find relevant provisions.
Division 2--Effect of this Part on other powers and laws
Clause 180B - Powers of the Court not affected
790. Clause 180B clarifies that the powers that are provided for by this Part do not
limit or affect other existing powers which the Military Court has (apart from this
Part) to regulate its proceedings or deal with a contempt of court. This includes the
Court's implied powers. The federal courts have such implied powers as are
incidental and necessary to exercise the jurisdiction or express powers conferred on
them by statute (DJL v The Central Authority (2000) 201 CLR 226 at 240-241).
Clause 180C - Other laws not affected
791. Clause 180C clarifies that nothing in this Part affects the operation of
provisions in other Acts that prohibit or restrict, or authorise the Military Court to
make an order prohibiting of restricting, the publication or other disclosure of
information in connection with proceedings, so that any such restrictions in other Acts
will continue to operate. (Under the Acts Interpretation Act 1901, `Act' means an Act
of the Commonwealth Parliament.) The provisions in this Part are intended to govern
the granting of suppression and non-publication orders under this Act.
Clause 180D - No limit on section 167
792. Clause 180D makes clear that Part 11A does not limit section 167 which deals
with protecting witnesses in proceedings in the Military Court.
Division 3 - Suppression and non-publication orders
Clause 180E - Safeguarding public interest in open justice
793. Clause 180E provides that the Military Court must take into account that a
primary objective of the administration of justice is to safeguard the public interest in
open justice when deciding whether to make a suppression order or non-publication
order. This reinforces that the principle of open justice is fundamentally important
and should not be overridden lightly, as discussed by the High Court in Hogan v
Hinch [2011] HCA 4 and Hogan v Australian Crime Commission [2010] HCA 21. In
particular, his Honour Chief Justice French commented in Hogan v Hinch at
paragraph 27 of the judgment that any suppression order powers conferred by statute
should be construed so as to minimise their intrusion on the open justice principle.
Clause 180F - Power to make orders
794. Clause 180F gives the Military Court power to make suppression and
non-publication orders. Such orders will bind all members of the public, not just
those present at the proceedings.
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795. The clause specifies the information which can be the subject of a suppression
or non-publication order. It allows for information tending to reveal the identity of, or
otherwise concerning, a party or witness (or anybody related to or otherwise
associated with that person) to be the subject of an order. Such an order will also be
able to be made in relation to evidence or information about evidence, information
obtained through discovery, produced under a subpoena or lodged with or filed in the
court.
796. This provision will provide the Military Court with flexibility to determine
exactly what information should be subject to an order and to what extent access to
that information should be limited. For example, it allows the Court to prevent the
identification of, or publication of information about, certain parties or witnesses to
proceedings but not others. By way of further example, it may be appropriate to order
that certain documents on a Court file or certain discovered documents could only be
inspected by specified persons.
797. This provision expressly allows the making of an order in respect of
information obtained by the process of discovery, produced under a subpoena or
lodged with or filed in Court. This will ensure that information can be the subject of a
suitable order even if it has not actually been formally produced as evidence before
the Court. The Military Court already has power to make such orders.
798. Subclause 180F(2) also provides that the Court may make such orders as it
think appropriate to give an effect to an order under subclause 180F(1). This
subclause, for example, gives the Court the clear power to make a `take down' order.
This is an order directing a publisher to remove certain information the subject of the
suppression or non-publication order, and could, for example, be directed to website
publishers or individuals who had posted certain content on the internet.
Clause 180G - Grounds for making an order
799. Clause 180G provides that the Military Court can only make suppression or
non-publication orders if one of the grounds set out in that section is satisfied. These
grounds are that:
a) the order is necessary to prevent prejudice to the proper administration
of justice
b) the order is necessary to prevent prejudice to the interests of the
Commonwealth or a State or Territory in relation to national or
international security
c) the order is necessary to protect the safety of any person
d) the order is necessary to avoid causing undue distress or
embarrassment to a party or witness in criminal proceedings involving
an offence of a sexual nature (including an act of indecency)
800. The various grounds that can found a suppression or non-publication order
under clause 180G all include the condition that such an order must be `necessary',
and should be read in light of the current jurisprudence about what that means in the
context of such orders being made. This reinforces again that such orders cannot be
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made lightly, bearing in mind the interest in open justice (as recognised by
clause 180E).
801. The High Court has stressed in Hogan v Australian Crime Commission [2010]
HCA 21 that the test that an order must be `necessary' has a high threshold so that it is
insufficient if the making of a suppression order is convenient, reasonable or sensible
- it must be necessary. The High Court has also indicated that, if an application is
subsequently made to vacate the order, it should be vacated unless the continuation of
the order remains necessary under the relevant statutory test.
Clause 180H - Procedure for making an order
802. Clause 180H establishes the procedures for making suppression and
non-publication orders. Subclause 180H(1) provides that such an order may be made
on the Court's own initiative or if a party or another person applies for an order whom
the Court considers has sufficient interest in the making of the order.
803. Subclause 180H(2) lists the people who are entitled to appear and be heard
when an application for such an order is being considered by the Court, being the
applicant for the order, a party to the proceedings, the Government or agency of the
Commonwealth or a State or Territory, a news publisher (as defined in section 3), or
any other person who the Court considers has a sufficient interest in whether the order
is made or not.
804. Subclause 180H(3) allows such orders to be made at any time during
proceedings or after proceedings have concluded. This acknowledges that
circumstances might change during or after proceedings that might warrant a
suppression or non-publication order being made at that time.
805. Subclause 180H(4) allows a suppression or a non-publication order to be made
subject to such exceptions and conditions as the Court thinks fit and specifies in the
order. This encourages the Court to carefully consider the breadth of the order, and
only make the order as wide as it needs to be in the circumstances, as well as
requiring the Court to fully set out these terms in the order.
806. Subclause 180H(5) requires the Court to specify the information to which the
order applies with sufficient particularity to ensure that the order is limited to
achieving the purpose for which the order is made. This provision requires the Court
to limit the breadth of the order, covering only what is required to achieve its purpose,
bearing in mind the principle of open justice.
Clause 180J - Interim orders
807. Subclause 180J(1) allows for the making of interim suppression or
non-publication orders without requiring the Court to assess the merits of the
substantive application, pending the substantive application being determined. Once
an interim order had been made, subclause 180J (2) will then require the Court to
determine the substantive application as a matter of urgency.
808. This clause is intended to allow the Court to make an order for an interim
period in urgent cases until the Court has had an opportunity to assess the merits of
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the substantive application. It is not intended that interim orders remain in place for
long periods of time.
Clause 180K - Duration of orders
809. The purpose of clause 180K is to ensure that the Court considers, and clearly
specifies, how long it is appropriate for orders to stay in force, so that orders are not
made for durations longer than necessary to achieve their purpose. This is intended to
reinforce the principle that suppression and non-publication orders should only be as
broad-reaching as is necessary to achieve their aim, consistent with the principles of
open justice.
810. Subclause 180K(1) provides that a suppression or non-publication order
operates for the period decided by the Court and specified in the order.
811. Subclause 180K(2) requires the Court to ensure that an order operates for no
longer than is reasonably necessary to achieve the purpose for which it is made.
812. Subclause 180K(3) allows for the duration of the order to be specified by
reference to a fixed or ascertainable period or by reference to the occurrence of a
specified future event.
813. In this respect, in Hogan v Australian Crime Commission [2010] HCA 21, the
High Court noted at paragraph 29 of the judgment that the power to make a
suppression order is interlocutory in nature, and that the power to make interlocutory
orders includes the power to later vary or vacate that order if there is a change of facts
or circumstances that warrants that course of action.
Clause 180L - Exception for court officials
814. Clause 180L provides that a suppression order does not prevent a person from
disclosing information provided that the disclosure is not by publication and is in the
course of performing functions or duties or exercising powers in a public official
capacity, either in connection with the conduct of proceedings or the recovery or
enforcement of any penalty imposed in proceedings, or in compliance with any
procedure adopted by the Court for informing a news publisher of the existence and
content of a suppression order or non-publication order made by the Court.
815. This provision ensures that Court officials can undertake certain specified
duties without infringing a suppression or non-publication order. In particular, Court
officials must be able to notify news publishers that suppression or non-publication
orders have been made so that news publishers can avoid breaching such orders.
Clause 180M - Contravention of order
816. Subclause 180M(1) provides that a person commits an offence if that person
does an act or omits to do an act which contravenes an order made by the Court under
section 180F (in other words, for breaching a non-publication or suppression order).
It provides for a maximum penalty of 12 months imprisonment, 60 penalty units or
both.
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817. If a person breaches a non-publication or suppression order, subclauses
180M(2), (3) and (4) provide that that person can either be punished for committing
an offence under subsection 180M(1) or for contempt of court, but not for both. This
is to ensure that a person is not subject to being punished twice for the same conduct.
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SCHEDULE 4--Repeal
Defence Force Discipline Appeals Act 1955
Item 1 - The whole of the Act
818. This item repeals the Defence Force Discipline Appeals Act 1955, which
establishes the DFDAT. The Tribunal has jurisdiction to hear appeals from courts
martial and Defence Force magistrates and, previously, the Australian Military Court.
However, as a non-judicial body, it could not have jurisdiction to review the decisions
of a Chapter III court. The jurisdiction of Tribunal will be absorbed by the Military
Court, which will have jurisdiction to hear appeals from judgments of the Military
Court at first instance. The Tribunal will be abolished once its jurisdiction to hear
appeals from the interim court martial and Defence Force magistrate system is
exhausted. This is achieved through amendments under Item 15 of Schedule 5 of this
Bill.
819. Transitional provisions in Part 4 of Schedule 5 of this Act provide for the
Defence Force Discipline Appeals Act 1955 to continue to apply for the purpose of
concluding proceedings that are already underway as at the date this item commences.
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SCHEDULE 5 --Application, saving and transitional provisions
Part 1--Definitions
Item 1 - Definitions
820. This item provides definitions relevant to the application, saving and
transitional provisions.
821. The definition of `Military Court proceedings start day' has been given the
same meaning as the day on which Part 1 of Schedule 1 to this Bill commences. Part
1 of Schedule 1 to this Bill commences at the earlier of either a day fixed by
Proclamation as the day on which the Military Court is to commence to exercise its
jurisdiction, or the last day of the period of ten months beginning on the day on which
this Bill receives the Royal Assent.
822. The definition of `new Defence Force Discipline Act 1982' has been included
and means the Defence Force Discipline Act 1982' that is in force on or after the
Military Court proceedings start day.
823. The definition of `old law' has been included to mean the Defence Force
Discipline Act 1982', the Defence Force Discipline Appeals Act 1955, and the
Defence Act 1903 as in force immediately before the Military Court proceedings start
day.
824. To ensure that proceedings that are not finalised prior to the Military Court
proceedings start day have been accounted for, a definition of `proceedings in relation
to a charge' has been provided. Proceedings in relation to charges covers dealing
with charges, the trial of a charges, taking action under Part IV of the old Defence
Force Discipline Act 1982', a review of proceedings under Part VIIIA of the old
Defence Force Discipline Act 1982', or an appeal or other proceeding in relation to
charges such as an appeal to the DFDAT or an appeal under the Defence Force
Discipline Appeals Act 1955.
825. A definition of `main amendments and repeals' has been included to mean
those amendments made by Part 1 of Schedule 1 of this Bill, Items 1 to 4 and Items 8
to 15 of Schedule 2 and the whole of Schedule 4. These amendments are those which
are necessary to establish the Military Court in the military justice system.
Part 2 - Proceedings in respect of service offences
Item 2 - Application of main amendments and repeals - general
826. This item provides that the main amendments and repeals will apply where an
offence is committed on or after the `Military Court proceedings start day'. (Subitem
2(1)). `Main amendments and repeals' are defined in Item 1 of Schedule 5 of this
Bill.
827. The main amendments and repeals will also apply to service offences that
have been committed before the Military Court proceedings start day, where:
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· a person has not been charged with a service offence before the Military Court
proceedings start day, or
· a person has been charged with a service offence, but proceedings to deal with
the charge had not been taken before the Military Court proceedings start day.
Item 3 - Continued application of old law to proceedings that had not been
finally determined before Military Court proceedings start day
828. This item provides that, if before the Military Court proceedings start day, a
person had been charged with a service offence and proceedings had commenced but
had not been finally determined, the old law continues to apply (subject to limited
exceptions). This means that the proceeding before the court martial or Defence
Force magistrate can continue to be finally determined under the old law, without
having to transition into the new system. `Proceedings in relation to a charge' is
defined broadly in this Part.
829. However, section 131B of the old Defence Force Discipline Act 1982 does not
apply in relation to a conviction by summary authority. New sections 190B and
190C, which deal with the effect of convictions for a service offence, will apply.
Item 4 - Charge not referred to a Defence Force magistrate before Military
Court proceedings start day
830. This item outlines the law that will apply to charges referred to the DMP
(other than under subsections 111C(3), 129A(3), 131AA(3) or 131A of the `old
Defence Force Discipline Act 1982'), where the DMP has requested the RMJ to refer
the charge to a Defence Force magistrate, and the RMJ has not done so, prior to the
Military Court proceedings start day. In this instance, the DMP's request to the RMJ
to have the charge referred to a Defence Force magistrate will be taken to have been
withdrawn, and the new law applies in relation to the charge.
Item 5 - Order convening a court martial not signed before Military Court
proceedings start day
831. This item outlines which law will apply to charges referred to the DMP (other
than under subsections 111C(3), 129A(3), 131AA(3) or 131A of the `old Defence
Force Discipline Act 1982'), when the DMP has requested the RMJ to convene a
court martial (other than under subsection 125(5) of the old law) and the RMJ has not
signed an order convening a court martial prior to the Military Court proceedings start
day. In this instance, the DMP's request for the charge to be referred to a court
martial will be taken to have been withdrawn and the new law applies in relation to
the charge.
Item 6 - Proceedings before summary authority--plea to charge not required
before Military Court proceedings start day
832. This item provides that the new law will apply where, before the Military
Court proceedings start day, a person has been charged with a service offence and the
summary authority has commenced dealing with the charges (but either the trial has
not commenced, or the trial has commenced but the person has not been required to
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enter a plea) and no referral has been made to the DMP following an election to be
tried by court martial or Defence Force magistrate. This has the effect of allowing the
accused to elect to have the matter heard by the Military Court instead by of the
summary authority.
Item 7 - New trial ordered by reviewing authority--proceedings before court
martial or Defence Force magistrate
833. This item provides that, if before the Military Court proceedings start day, a
reviewing authority had ordered a new trial of a person (under sections 160 or 166 of
the old Defence Force Discipline Act 1982) but the RMJ had not referred the charge
to a Defence Force magistrate or convened a court martial to re-try the charge, then
the new law applies as if a new trial had been ordered under sections 160 or 166 of the
new Defence Force Discipline Act 1982. This means that the re-trial may be by way
of a hearing in the Military Court.
834. The new law also applies to new trials ordered under sections 160 or 166 of
the old Defence Force Discipline Act 1982 on or after the Military Court proceedings
start day (as those provisions continue to apply for the review of court martial and
Defence Force magistrate trials, which carry over on or after the Military Court
proceedings start day).
Item 8 - New trial ordered by reviewing authority--proceedings before
summary authority
835. This item provides that if before the Military Court proceedings start day, a
reviewing authority had ordered a new trial of a person (under section 160 of the old
Defence Force Discipline Act 1982) but the new trial by a summary authority had not
commenced, or had commenced but the person has not entered a plea to the charge,
then the new law applies as if a new trial had been ordered under sections 160 of the
new Defence Force Discipline Act 1982. This means that the person may elect to be
re-tried by the Military Court instead of the summary authority.
836. The new law also applies to new summary authority trials ordered under
sections 160 of the old Defence Force Discipline Act 1982 on, or after, the Military
Court proceedings start day (as those provisions continue to apply for the review of
court martial and Defence Force magistrate trials, which carry over on or after the
Military Court proceedings start day). However, subitems 8(3) and 8(4) provide that
the old law will continue to apply after the Military Court proceedings start day if the
person has been charged with the service offence, the trial of the charges by a
summary authority had commenced and the person has been required to enter a plea
before the Military Court proceedings start day.
Item 9 - New trial ordered by the Defence Force Discipline Appeal Tribunal
837. This item provides that the new Defence Force Discipline Act 1982 applies in
relation to a charge where the Tribunal had ordered the new trial of a person for a
service offence and the RMJ had not referred the charge to a Defence Force
magistrate for trial or signed an order convening a court martial before the Military
Court proceedings start day. The new Defence Force Discipline Act 1982 will also
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apply where the Tribunal orders a new trial on or after the Military Court proceedings
start day.
Item 10 - New trial ordered by Federal Court
838. This item provides that the new Defence Force Discipline Act 1982 applies in
relation to a charge where the Federal Court had ordered the new trial of a person for
a service offence and the RMJ had not referred the charge to a Defence Force
magistrate for trial or signed an order convening a court martial before the Military
Court proceedings start day. The new Defence Force Discipline Act 1982 will also
apply where the Federal Court orders a new trial on or after the Military Court
proceedings start day.
Item 11 - Charges laid before Military Court proceedings start day
839. This item applies where charges have been laid by an authorised member of
the Defence Force, or the DMP.
840. Subitem 11(1) provides that, where a person has been charged and ordered to
appear before a summary authority under subsection 87(1) of the old Defence Force
Discipline Act 1982, and a provision of this Schedule applies the main amendments
and repeals in relation to the charges, the charges are taken to have been laid and the
person ordered to appear under subsection 87(1) of the new Defence Force Discipline
Act 1982.
841. Subitems 11(2) and 11(3) provide that if the DMP has charged a person under
subsection 87(1) and the DMP has made a request under subsection 87(1)(c) of the
old Defence Force Discipline Act 1982, and a provision of this Schedule applies the
main amendments and repeals in relation to the charges, the charges are taken to have
been laid and the DMP may act under subsection 87(A) of the new Defence Force
Discipline Act 1982.
842. Subitem 11(4) provides if before the Military Court proceedings start day a
person had been charged under a summons prepared under paragraph 87(1)(b) of the
old Defence Force Discipline Act 1982, and the main amendments and repeals apply
in relation to the charges under this Schedule, the summons continues to have effect
after the Military Court proceedings day as if it had been prepared under the new
Defence Force Discipline Act 1982.
Part 3 - Office Holders
Item 12 - Chief Judge Advocate
843. This item has the effect of saving the appointment of the Chief Judge
Advocate so that the person who holds the position of Chief Judge Advocate
immediately before the Military Court proceedings start day continues to hold the
office and can exercise their powers for the purpose of finalising cases to which the
old law applies. The appointment will cease when all proceedings under the old law
have been finally concluded (the `service tribunal proceedings completion day' to be
declared by the Defence Minister under item 16(1) of Schedule 5 to this Bill).
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844. Subitems 12(2) - 12(7) clarify the terms of appointment of the Chief Judge
Advocate continuing on and after the Military Court proceedings start day. Subitem
12(8) confirms that delegations from the Judge Advocate General to the person as
Chief Judge Advocate continue in force. Subitems 12(9) and 12(10) clarify the
benefits available to a person holding office as Chief Judge Advocate on ceasing to
hold office provided under the Military Justice (Interim Measures) Act (No.1) 2009.
Item 13 - Judge advocates
845. This item has the effect of saving the appointments of members of the judge
advocates' panel so that persons who hold this position immediately before the
Military Court proceedings start day continue to hold the office and can exercise their
powers for the purpose of finalising cases to which the old law applies. The
appointments will cease when all proceedings under the old law have been finally
concluded (the `service tribunal proceedings completion day' to be declared by the
Defence Minister under subitem 16(1) of Schedule 5 to this Bill).
846. Subitems 13(2)-13(6) clarify the terms of appointment of the members of the
judge advocates' panel continuing on and after the Military Court proceedings start
day. Subitems13 (9) and 13(10) clarify the benefits available to a person holding
office as a member of the judge advocates' panel on ceasing to hold office provided
under the Military Justice (Interim Measures) Act (No.1) 2009.
Item 14 - Defence Force magistrates
847. Subitems 14(1) and 14(2) have the effect of saving the appointments of the
Defence Force magistrates to enable proceedings to which the old law will apply after
the Military Court proceedings start day, to be completed. The appointments will
cease when all proceedings under the old law have been finally concluded (the
`service tribunal proceedings completion day' to be declared by the Defence Minister
under subitem 16(1) of Schedule 5 to this Bill).
848. Subitems 14(3) and 14(4) provide that a person who holds office as a Defence
Force magistrate under the old Defence Force Discipline Act 1982 immediately
before the Military Court proceedings start day is taken to hold office as a Defence
Force magistrate under the new Defence Force Discipline Act 1982. In the new
system, Defence Force magistrates are required to be able to hear charges where the
Military Court determines it is necessary but not possible for the Court to sit overseas.
Item 15 - Registrar of Military Justice
849. The effect of this item is to save the appointment of the RMJ so that the person
who holds the position immediately before the Military Court proceedings start day
continues to hold the office and can exercise their powers for the purpose of finalising
proceedings to which the old law applies. The appointment will cease when all
proceedings under the old law have been finally concluded (the `service tribunal
proceedings completion day' to be declared by the Defence Minister under subitem
16(1) of Schedule 5 to this Bill).
850. Subitems 15(4) and 15(5) enable a person to be appointed or reappointed, or
appointed to act as RMJ, on or after the Military Court proceedings start day. This
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will enable the system to operate effectively during transition to the new system. This
appointment or reappointment will cease when all proceedings under the old law have
been finally concluded (the `service tribunal proceedings completion day' to be
declared by the Defence Minister under subitem 16(1) of Schedule 5 to this Bill).
851. Subitem 15(6) clarifies that existing delegations by the RMJ continue in force
after the Military Court proceedings start day. Subitem 15(7) continues the effect of
certificates issued by the RMJ under section 175 of the old Defence Force Discipline
Act 1982 (stating that a specified amount of fine is due and payable by a person).
Section 175 provides that such certificates shall be received as in any civil court
without further proof and is prima facie evidence of the facts stated in it. The
certificates relate to the procedural matter of whether moneys are payable.
Item 16 - Declaration of service tribunal proceedings completion day
852. This item enables the Defence Minister to declare a specified day to be the
`service tribunal proceedings completion day'. This will be a day after all
proceedings under the old law have been completed. The declaration will be a
legislative instrument under the Legislative Instruments Act 2003, but will not be
subject to disallowance requirements of that Act. The declaration is necessary to
provide certainty about the date on which the appointments of several office holders
under the old law cease to have effect. Disallowance of the declaration would cause
uncertainty for these matters.
Part 4--Abolition of Defence Force Discipline Appeal Tribunal
Item 17 - Defence Force Discipline Appeal Tribunal continues in existence after
Military Court proceedings start day
853. This item provides for the DFDAT to continue to exist, despite the repeal of
the Defence Force Discipline Appeals Act 1982 by Schedule 4 to this Act, until the
`appeal proceedings completion day'. This is to ensure that there is a forum to which
accused persons can appeal where the case is one to which the old law applies after
the Military Court proceedings start day.
854. The Attorney-General must declare a specified day to be the `appeal
proceedings completion day' after all proceedings before the DFDAT or the Federal
Court of Australia have been finally determined. The declaration will be a legislative
instrument under the Legislative Instruments Act 2003, but will not be subject to
disallowance requirements of that Act. The declaration is necessary to provide
certainty about the date on which the appointments of several office holders under the
old law cease to have effect. Disallowance of the declaration would cause uncertainty
for these matters.
Item 18 - Tribunal members
855. This item provides for the continuation of a person's appointment as the
President of the Tribunal, Deputy President of the Tribunal and a member of the
Tribunal after the Military Court proceedings start day until the expiration of their
term of appointment or until the appeal proceedings completion day, which ever first
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occurs. The terms and conditions provided for in the Defence Force Discipline
Appeals Act 1955 will continue to apply for the same duration.
856. The item also provides that a person may be appointed or reappointed as the
President of the Tribunal, Deputy President of the Tribunal and a member of the
Tribunal on or after the Military Court proceedings start day, which would cease at
the earliest of the expiration of their term of appointment, or at the beginning at the
beginning of the appeal proceedings completion day.
Item 19 - Registrar and Deputy Registrars of the Tribunal
857. This item provides for the continuation of the office of the Registrar and
Deputy Registrar of the Tribunal, after the Military Court proceedings start day, until
the expiration of their term of appointment or until the completion day, which ever
first occurs. The terms and conditions provided for in the Defence Force Discipline
Appeals Act 1955 will continue to apply for the same duration
858. The item also provides that a person may be appointed or reappointed as
Registrar and Deputy Registrar of the Tribunal on or after the Military Court
proceedings start day, which would cease at the earliest of the expiration of their term
of appointment, or at the beginning at the beginning of the appeal proceedings
completion day.
Item 20 - Offences in relation to the Tribunal
859. Despite the repeal of the Defence Force Discipline Appeals Act 1955 by
Schedule 4 to this Bill, this item provides that a prosecution may be instituted, on or
after the Military Court proceedings start day, in respect of an offence against Part IV
of the Defence Force Discipline Appeals Act 1955 as that Act continues to apply
because of this Schedule.
Item 21 - Recovery of fines etc
860. This item provides for money to be recovered under section 174 of the old
Defence Force Discipline Act 1982 where a fine or reparation order was made by the
Tribunal on or after the Military Court proceedings start day. Section 174 enables
money payable from fines or reparation orders to be deducted from a person's pay or
recovered by action in a civil court.
Item 22 - Evidence of fines etc
861. This item provides that an authorised officer under section 175 of the new
Defence Force Discipline Act 1982, or Defence employee, may issue a certificate
stating that that a specified amount of fine or reparation order made by the Tribunal is
due and payable by a person. This will apply to fines and reparation orders made by
the Tribunal before, on, or after the Military Court proceedings start day. Consistent
with old section 175, the item provides that such certificates shall be received as in
any civil court without further proof and is prima facie evidence of the facts stated in
it. The certificates relate to the procedural matter of whether moneys are payable.
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Item 23 - Continuation of exception under the Age Discrimination Act 2004
862. This item provides for the continuation of the exception under the Age
Discrimination Act 2004 for anything done in direct compliance with the Defence
Force Discipline Appeals Act 1955 as it continues to apply by operation of this
Schedule. This Schedule includes mandatory age requirements.
Part 5 - Other provisions
Item 24 - Transitional--superior authorities
863. This item provides that an officer who was appointed as a superior authority
for the purposes of paragraph 5A(a) and (b) of the old Defence Force Discipline Act
1982, will also be taken to be a superior authority for the purposes of paragraph
5A(aa) of the new Defence Force Discipline Act 1982. This new paragraph 5A(aa)
gives superior authorities additional power to refer charges to a Defence Force
magistrate or convene a court martial when directed to do so by the DMP.
Item 25 - Saving--authorised members of the Defence Force
864. This item saves the appointment of authorised members under
subsection 87(6) of the old Defence Force Discipline Act 1982. Despite the repeal of
subsection 87(6), an authorisation under that subsection that is in effect immediately
before the Military Court proceedings start day, is taken to continue after the Military
Court proceedings start day as if the authorisation was made under subsection 87(7)
of the new Defence Force Discipline Act 1982. These authorisations have effect for
the purpose of charging and issuing summonses to persons believed to have
committed a service offence.
Item 26 - Saving--authorisation of officers for the purposes of section 90
865. This item saves the authorisation of officers for the purposes of section 90 of
the old Defence Force Discipline Act 1982 so that, after the Military Court
proceedings start day, they continue as if they were authorized under section 90 of the
new Defence Force Discipline Act 1982. These authorisations have effect for the
purpose of issuing warrants of arrest.
Item 27 - Application--persons in custody of commanding officer
866. This item saves the application of section 95 of the old Defence Force
Discipline Act 1982 after the Military Court proceedings start in relation to a person
who was charged under subsection 95(2) before the Military Court proceedings start
day. Section 95 provides for avoidance of delay after arrest, and includes procedures
to be followed to ensure that, once a person is charged, a commanding officer causes
proceedings to be commenced for dealing with the charge as soon as practicable.
This would apply in limited circumstances where a person had been arrested and was
in custody at the Military Court proceedings start day.
Item 28 - Saving--list of legal officers
867. This item provides that the list of legal officers established under subsection
101F(2) of the old Defence Force Discipline Act 1982 continues after the Military
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Court proceedings start day as if the list had been established under the subsection
101F(2) of the new Defence Force Discipline Act 1982. This list of legal officers is
used to identify persons who may be available to assist accused persons.
Item 29 - Saving--authorisation of officers for the purposes of section 101X
868. This clause saves the authorisation of officers, or an officer included in the
class of officers, authorised for the purposes of section 101X of the old Defence Force
Discipline Act 1982. The authorization continues to operate after the Military Court
proceedings start day as if the authorization was made for the purposes of section
101X of the new Defence Force Discipline Act 1982. These authorisations have
effect for the purpose of issuing warrants for specified types of search and seizure.
Item 30 - Saving--authorisation of officers for the purposes of section 101Y
869. This item saves the authorisation of officers, or an officer included in the class
of officers, authorised for the purposes of section 101Y of the old Defence Force
Discipline Act 1982. The authorisation continues to operate after the Military Court
proceedings start day as if the authorisation was made for the purposes of section
101Y of the new Defence Force Discipline Act 1982. These authorisations have
effect for the purpose of issuing warrants by telephone.
Item 31 - Saving--Court Martial and Defence Force Magistrate Rules
870. This item provides that despite the repeal of section 149A of the old Defence
Force Discipline Act 1982 by Item 105 of Schedule 1 of this Bill, which provides for
the Judge Advocate General to make Court Martial and Defence Force magistrate
Rules, the Court Martial and Defence Force magistrate Rules in force immediately
before the Military Court proceedings start day will continue to remain in force for the
purposes of proceedings before a court martial or Defence Force magistrate to which
the old law applies and will continue to so apply until all proceedings in relation to the
charges, cases or convictions are finally determined.
871. Item 165 of Schedule 1 to this Bill gives the Judge Advocate General the
power to make new Court Martial and Defence Force magistrate Rules under clause
46 of Schedule 3B for the purposes of proceedings before a court martial or a Defence
Force magistrate under the new law after the Military Court proceedings start day.
Item 32 - Saving--non-publication orders etc in proceedings before a court
martial or Defence Force magistrate
872. This item provides that an order under subsection 140(2) of the old Defence
Force Discipline Act 1982 immediately before the Military Court proceedings start
day continues in force after that day. These orders have the effect of excluding
members of the public from proceedings, or preventing publication of reports of
proceedings.
873. The item also saves the application of section 90 of the Defence Act 1903 in
relation to offences for contravening an order under section 140 of the old Defence
Force Discipline Act 1982 made before, on or after the Military Court proceedings
start day.
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Item 33 - Saving--things done under the old law before the Military Court
proceedings start day
874. This item is inserted to avoid doubt, and confirms that the main amendments
and repeals do not affect validity of actions under the old law before the Military
Court proceedings start day.
Item 34 - Application--amendment of service offences
875. This item provides that the amendments to offences in Part 2 of Schedule 1
apply to acts and omissions that take place after the commencement of this Part. For
the purposes of this item, where an act or omission is alleged to have taken place
between two dates, one before and one after the commencement of the amendments to
offences in Part 2 of Schedule 1 to this Bill, the act or omission will be alleged to
have taken place before that commencement. This will ensure that there is no
retrospective application of amendments to service offences.
Item 35 - Application--definition of Federal Magistrates in Acts Interpretation
Act 1901
876. This item provides that the amendments of section 16C of the Acts
Interpretation Act 1901 made by items 2 and 3 of Schedule 3 to this Bill apply, one
and after commencement of those items, in relation to Acts enacted before, on or after
that commencement. This has the effect that all references to Federal Magistrates in
other Commonwealth Acts will include references to Federal Magistrates of the
Military Court.
Part 6--Regulations
Item 36 - Regulations may deal with transitional etc matters
877. This item provides for the Governor-General to make regulations dealing with
matters of a transitional, saving or application nature in relation to amendments and
repeals made by this Act.
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