"required standard", in relation to performing a duty, means the standard to which a reasonably capable and careful defence member of the same training and experience would perform the duty.

5 Section 36A

Repeal the section, substitute:

36A Unauthorised discharge of weapon

A person who is a defence member or a defence civilian is guilty of an offence if:

(a) the person engages in conduct; and
(b) the conduct causes, or contributes to, the discharge of a weapon; and
(c) the discharge of the weapon is not authorised.

Penalty: Imprisonment for 6 months.

36B Negligent discharge of weapon

A person who is a defence member or a defence civilian is guilty of an offence if:

(a) the person engages in conduct; and
(b) the conduct causes, or contributes to, the discharge of a weapon; and
(c) the person is negligent as to that result.

Penalty: Imprisonment for 6 months.

6 Section 40B

Repeal the section.

7 Subsection 72(1)

After "20AA", insert "of the Crimes Act 1914 ".

8 Subsection 101C(2)

Omit all the words and paragraphs after "commencement", substitute "of the interview cautioned the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.".

Note: The heading to section 101C is replaced by the heading "Questioning and cautioning of person in custody".

9 After subsection 101C(2)

Insert:

(2A)

A caution for the purpose of subsection (2) must be given in, or translated into, a language in which the person being cautioned is able to communicate with reasonable fluency, but need not be given in writing.

(2B)

An investigating officer who is required by subsection (2) to caution a person must, if practicable, tape record the giving of the caution and the person's response (if any).

(2C)

If:

(a) an investigating officer cautions a person under this section; and
(b) the giving of the caution and the person's response (if any) to the caution are not tape recorded;

then, in any proceedings before a service tribunal, the prosecution has the burden of proving that it was not practicable to tape record the giving of the caution or the person's response (if any) to the caution.

10 Paragraph 101D(4)(a)

After "person", insert "under this section".

Note: The heading to section 101D is replaced by the heading "Cautioning once decision to charge or summon has been made".

11 Subsection 103(1)

After "subsection 129A(3)", insert "or 130(5)".

12 At the end of subsection 103(1)

Add:

Note: A charge referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see subsection 129C(1).

13 At the end of subsection 103(2)

Add:

Note: A charge referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see subsection 129C(1).

14 At the end of subsection 103(4)

Add:

Note: A charge referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see subsection 129C(1).

15 At the end of subsection 103(6)

Add:

Note: A case referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see subsection 129C(2).

16 At the end of section 103

Add:

(8)

If a convening authority believes that he or she would be:

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

in the exercise of a power under this section in relation to:

(c) a charge; or
(d) an order for a new trial; or
(e) a conviction;

the convening authority may refer the charge, order or conviction to another convening authority.

(9)

If a convening authority believes that the interests of justice require this in respect of the exercise of a power under this section in relation to:

(a) a charge; or
(b) an order for a new trial; or
(c) a conviction;

the convening authority may refer the charge, order or conviction to another convening authority.

(10)

If:

(a) a charge, order or conviction is referred to a convening authority for the purposes of the exercise of a power of the convening authority under this section; and
(b) the convening authority does not, because of the terms of his or her appointment, have the power to convene a general court martial; and
(c) the convening authority is of the opinion that the convening of a general court martial could be an appropriate exercise of power under this section in relation to the charge, order or conviction;

the convening authority may refer the charge, order or conviction to a convening authority who has the power to convene a general court martial.

(11)

If a convening authority (the first convening authority ) refers a charge, order or conviction to another convening authority (the second convening authority ) under subsection (8), (9) or (10):

(a) the first convening authority must not exercise a power under subsections (1) to (7) in relation to the charge, order or conviction; and
(b) the subsection of this section that relates to the referral of the charge, order or conviction to the first convening authority applies as if the charge, order or conviction had been referred to the second convening authority.
17 Section 118

Repeal the section.

18 At the end of subsection 119(1)

Add:

Note: A convening authority must not appoint a person as a member, reserve member or judge advocate of a court martial unless the person has been nominated by the Judge Advocate General: see section 129B.

19 At the end of section 123

Add:

Note: A convening authority must not appoint a person as a member, reserve member or judge advocate of a court martial unless the person has been nominated by the Judge Advocate General: see section 129B.

20 At the end of subsection 124(3)

Add:

Note: A convening authority must not appoint a person as a judge advocate of a court martial unless the person has been nominated by the Judge Advocate General: see section 129B.

21 At the end of section 127

Add:

Note: A member of the judge advocates' panel is appointed for a maximum period of 3 years but is eligible for reappointment: see subsection 196(2A).

22 At the end of subsection 129A(4)

Add:

Note: A charge or case referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see section 129C.

23 At the end of Part VII

Add:

129B Judge Advocate General to nominate members of courts martial

(1)

A convening authority must not appoint a person as:

(a) the President of a court martial; or
(b) a member or reserve member of a court martial; or
(c) a judge advocate of a court martial;

unless the Judge Advocate General has nominated the person for the position.

(2)

The Judge Advocate General must not nominate a person for one of the positions referred to in subsection (1) if the Judge Advocate General believes the person to be:

(a) biased or likely to be biased; or
(b) likely to be thought, on reasonable grounds, to be biased.
129C Judge Advocate General to nominate Defence Force magistrates

(1)

A convening authority must not refer a charge to a Defence Force magistrate unless the Judge Advocate General has nominated the magistrate to try the charge.

(2)

A convening authority must not refer a case to a Defence Force magistrate to take action under Part IV in relation to a convicted person unless the Judge Advocate General has nominated the magistrate to take action in relation to the person.

24 At the end of Division 1 of Part IX

Add:

150A Meaning of competent reviewing authority

A reviewing authority is a competent reviewing authority for the purposes of reviewing the proceedings of a service tribunal that relate to a particular charge only if the reviewing authority did not exercise any of the powers or perform any of the functions of a convening authority in relation to the charge.

25 At the end of section 151

Add:

(6)

If the legal officer does not transmit the record of proceedings and the report of the results of the review to a reviewing authority, the commanding officer must give written notice of the results of the review to the person who was convicted of the service offence.

26 Subsection 152(1)

Omit "reviewing authority", substitute "competent reviewing authority".

27 At the end of section 152

Add:

(3)

After reviewing the proceedings, the reviewing authority must give the person who was convicted of the service offence, or who was the person in relation to whom a direction under subsection 145(2) or (5) was given, written notice of the results of the review.

28 Subsection 153(1)

Omit ", within 90 days after that conviction or the giving of that direction or such further period as a reviewing authority allows, lodge with the", substitute "lodge with a competent".

29 After subsection 153(1)

Insert:

(1A)

The person must lodge the petition within 30 days after:

(a) if a commanding officer reviews the proceedings of the service tribunal under section 151 and gives the person notice of the results of the review under subsection 151(6)—the notice is given; or
(b) in any other case—the person is given notice of the results of the review under subsection 152(3);

unless the reviewing authority extends the period during which the petition may be lodged.

(1B)

If the reviewing authority extends the period during which the petition may be lodged, the petition must be lodged within that extended period.

30 Subsection 153(2)

Omit "a reviewing authority", substitute "a competent reviewing authority".

31 After subsection 154(1)

Insert:

(1A)

An appointment under paragraph (1)(a) is for the period, not exceeding 3 years, specified in the instrument of appointment.

(1B)

A legal officer appointed under paragraph (1)(a) may be reappointed for a further period or periods.

32 Subsection 155(1)

Omit "Chief of Staff", substitute "Chief of the Defence Force or the service chief".

33 Subsection 155(2)

Omit "Chief of Staff", substitute "Chief of the Defence Force or the service chief".

34 Section 169A

Insert: