Commonwealth Numbered Acts Commonwealth Numbered ActsSection 67
1. Subject to clause 2, a court martial or a Defence Force magistrate may impose punishments on convicted persons in accordance with the table in this Schedule.
2. A restricted court martial or a Defence Force magistrate shall not impose any of the following punishments:
(a) imprisonment for life;
(b) imprisonment for a period exceeding 6 months;
(c) detention for a period exceeding 6 months.
TABLE OF PUNISHMENTS
|
Column 1 |
Column 2 |
|
Convicted Person |
Punishment |
|
Officer |
Imprisonment |
|
Member of the Defence Force who is not an officer |
Imprisonment |
|
Person who is not a member of the Defence Force |
Imprisonment |
175 After Schedule 4
Insert:
Section 196
OATH
I, A.B., do swear that I will well and truly serve Her Majesty in the office of judge advocate and I will do right to all manner of people according to law, without fear or favour, affection or ill‑will: So help me God!
AFFIRMATION
I, A.B., do solemnly and sincerely promise and declare that I will well and truly serve Her Majesty in the office of judge advocate and that I will do right to all manner of people according to law, without fear or favour, affection or ill‑will.
176 Schedule 7
Repeal the Schedule.
Part 2 -- Consequential amendments of other Acts
177 Paragraph 89(1)(a)
Repeal the paragraph, substitute:
(a) insult a member of a court martial, a judge advocate, a Defence Force magistrate or a summary authority in or in relation to the exercise of his or her powers or functions as such a member, judge advocate, magistrate or authority, as the case may be;
178 Paragraph 89(1)(d)
Repeal the paragraph, substitute:
(d) do any other act or thing that would, if a service tribunal were a court of record, constitute a contempt of that court.
179 Subsection 89(2)
Repeal the subsection, substitute:
(2) In this section, court martial , judge advocate , Defence Force magistrate and summary authority have the same respective meanings as they have in the Defence Force Discipline Act 1982 .
180 Subsections 116C(2) and (2A)
Repeal the subsections, substitute:
(2) Whenever a part of the Defence Force and a part of the forces of another country to which this subsection applies are acting in combination, either within or beyond the territorial limits of Australia, an officer of the forces of that other country may be appointed by the Governor‑General, by order in writing, to command the combined force, or any part of the combined force, and an officer so appointed:
(a) has, subject to such restrictions and limitations as are specified by the Chief of the Defence Force by order in writing, over members of the Defence Force serving in that combined force or part of that force, the same powers of command and discipline, including the power to impose punishments; and
(b) may be invested by the Governor‑General, by order in writing, with the same power to convene, and confirm the findings and sentences of, courts‑martial;
as if he or she were an officer of the Defence Force holding that appointment and the rank in that Force corresponding with the rank that he or she holds in the force to which he or she belongs.
181 Saving provision
An appointment by the Governor‑General that was in force, immediately before the commencement of item 180, under subsection 116C(2) of the Defence Act 1903 as then in force, continues to have effect after that commencement as if it were an appointment under subsection 116C(2) of that Act as in force after that commencement.
Defence Force Discipline Appeals Act 1955
182 Title
Omit " the Australian Military Court ", substitute " courts martial and Defence Force magistrates ".
183 Section 4
Before "In", insert "(1)".
184 Section 4
Insert:
"appellant" means a person who appeals, or applies for leave to appeal under this Act to the Tribunal.
185 Section 4 (definition of Australian Military Court )
Repeal the definition.
186 Section 4 (definition of convicted person )
Omit "the Australian Military Court (other than under Part IX of the Defence Force Discipline Act 1982 )", substitute "a court martial or a Defence Force magistrate".
187 Section 4 (definition of conviction )
Omit "the Australian Military Court (other than under Part IX of the Defence Force Discipline Act 1982 )", substitute "a court martial or a Defence Force magistrate".
188 Section 4
Insert:
"court martial" means a court martial convened under the Defence Force Discipline Act 1982.
189 Section 4
Insert:
"Defence Force magistrate" means a Defence Force magistrate appointed under section 127 of the Defence Force Discipline Act 1982 .
190 Section 4 (definition of Director of Military Prosecutions )
Repeal the definition.
191 Section 4 (definition of Military Judge )
Repeal the definition.
192 Section 4 (definition of offender appellant )
Repeal the definition.
193 Section 4 (definition of prescribed acquittal )
Omit "the Australian Military Court (other than under Part IX of the Defence Force Discipline Act 1982 )", substitute "a court martial or a Defence Force magistrate".
194 Section 4 (definition of prescribed acquitted person )
Omit "the Australian Military Court (other than under Part IX of the Defence Force Discipline Act 1982 ) , substitute "a court martial or a Defence Force magistrate".
195 Section 4 (definition of punishment )
Repeal the definition.
196 Section 4
Insert:
"review and reviewing authority" have the same respective meanings as they have in the Defence Force Discipline Act 1982 .
197 Section 4
Insert:
"service tribunal" has the same meaning as it has in the Defence Force Discipline Act 1982 .
198 At the end of section 4
Add:
(2) For the purposes of this Act, where, in a review under Part VIIIA of the Defence Force Discipline Act 1982 of the proceedings before a court martial or a Defence Force magistrate, the reviewing authority:
(a) substitutes for the conviction of a service offence a prescribed acquittal of that service offence or a conviction of another service offence; or
(b) takes such action in relation to the convicted person as could have been taken under Part IV of that Act by the court martial or the Defence Force magistrate;
the conviction or prescribed acquittal so substituted or the action so taken, as the case may be, shall be deemed to have been made or taken, as the case may be, by the court martial or the Defence Force magistrate.
199 Subsection 15(2)
Repeal the subsection, substitute:
(2) Where an appeal, or a matter preliminary or incidental to an appeal, is to be heard in a place outside Australia, the President may, if he or she thinks fit, direct that paragraph (b) of the last preceding subsection shall not apply in relation to the appeal or matter.
200 Section 16
Repeal the section, substitute:
16 Member ceasing to sit on an appeal
(1) Where:
(a) the hearing of an appeal, or of a matter preliminary or incidental to an appeal, has been commenced before the Tribunal but, before the appeal or matter has been finally determined, a member sitting on the hearing has ceased to be a member or, for any reason, has ceased to sit on the hearing; and
(b) the remaining members sitting on the hearing are not less than 3 in number and, except in the case of an appeal or matter in relation to which the President has given a direction under subsection (2) of the last preceding section, include the President, the Deputy President or a member who is qualified to be appointed as President;
the Tribunal constituted by the remaining members may, if the hearing has not been completed, complete the hearing and, if a majority of those members concur in the decision, but not otherwise, determine the appeal or matter.
(2) If, for any reason, the Tribunal constituted by the remaining members does not complete the hearing or determine the appeal or matter, the Tribunal constituted in accordance with the last preceding section shall, subject to the next succeeding section, hear and determine the appeal or matter and, for that purpose, may have regard to the evidence given, the arguments adduced and the reasons for any decision given during the previous hearing.
201 Paragraphs 17(1)(c), (d) and (f)
Omit "offender".
202 Paragraph 17(1)(f)
Omit "or (3A)".
203 Part III (heading)
Repeal the heading, substitute:
Part III -- Appeals to the Tribunal
204 Division 1A of Part III
Repeal the Division.
205 Subsection 20(2)
Omit "the Australian Military Court", substitute "the court martial or the Defence Force magistrate".
206 Subsections 20(3) and (4)
Repeal the subsections.
207 Subsection 21(2)
Repeal the subsection, substitute:
(2) In subsection (1), appropriate period , in relation to proceedings before a service tribunal that have resulted in a conviction or a prescribed acquittal, means the period of 30 days commencing immediately after:
(a) the day on which the results of a review under section 152 of the Defence Force Discipline Act 1982 of the proceedings are notified to the convicted person or the prescribed acquitted person; or
(b) the last day of the period of 30 days after the conviction or prescribed acquittal;
whichever is earlier.
208 Section 22
Repeal the section, substitute:
22 Frivolous or vexatious appeals
Where:
(a) the Tribunal dismisses an appeal against a conviction or an application for leave to appeal against a conviction; and
(b) it appears to the Tribunal that the appeal or application was frivolous or vexatious;
the Tribunal may order that any punishment of imprisonment or detention imposed on the appellant or applicant in the proceedings in relation to which the appeal or application was brought shall be taken to commence on the day on which the Tribunal dismisses the appeal or application.
209 Subsection 23(1)
Omit "against a conviction or prescribed acquittal".
210 Paragraph 23(1)(c)
Omit "the Australian Military Court", substitute "the court martial or the Defence Force magistrate".
211 Subsection 23(2)
Omit "against a conviction or prescribed acquittal".
212 Paragraphs 23(2)(a) and (c)
Omit "the Australian Military Court", substitute "the court martial or the Defence Force magistrate".
213 Subsection 23(3)
Omit "offender".
214 Subsection 23(4)
Omit "against a conviction or prescribed acquittal".
215 Subsection 23(4)
Omit "the Australian Military Court", substitute "the court martial or the Defence Force magistrate".
216 Subsection 23(4)
Omit "offender" (wherever occurring).
217 Paragraph 26(1)(a)
Omit "the Military Judge or the military jury", substitute "the court martial or the Defence Force magistrate".
218 Subparagraph 26(1)(a)(ii)
Omit "the Australian Military Court", substitute "the court martial or the Defence Force magistrate".
219 Paragraph 26(1)(b)
Omit "the Military Judge or the military jury, by reason of its, his or her", substitute "the court martial or the Defence Force magistrate, by reason of its or his or her".
220 Subsection 26(2)
Omit "the Australian Military Court if the Court had convicted the person", substitute "court martial or the Defence Force magistrate that convicted the convicted person of the original offence if the court martial or Defence Force magistrate had convicted him or her".
221 Subsection 26(4)
Repeal the subsection.
222 Section 27
Repeal the section.
223 Paragraph 31(1)(b)
Omit "the Australian Military Court", substitute "the court martial or the Defence Force magistrate".
224 Paragraph 31(1)(c)
Omit "offender" (wherever occurring).
225 Paragraph 31(1)(e)
Omit "a question of law referred to the Tribunal under section 19A or".
226 Subsection 35(1)
Omit "offender".
227 Section 36
Repeal the section, substitute:
36 Tribunal may obtain reports to assist in determination of appeals
Where, upon the hearing of an appeal under this Act against a conviction or a prescribed acquittal by a court martial or a Defence Force magistrate, the Tribunal thinks it necessary or expedient in the interests of justice to do so, the Tribunal may direct such steps to be taken as are necessary to obtain from the person who was the judge advocate of the court martial or from the Defence Force magistrate, a report giving his or her opinion upon the case, or upon a point arising in the case, or containing a statement as to any facts the ascertainment of which appears to the Tribunal to be material for the purpose of the determination of the appeal.
228 Subsection 37(1)
Omit "by an offender appellant".
229 Subsection 37(1)
Omit "offender" (second and third occurring).
230 Subsection 37(1A)
Repeal the subsection.
231 Subsection 37(2)
Omit "offender" (wherever occurring).
232 Subsection 37(2)
Omit "or (1A)".
233 Subsection 37(3)
Omit "an appeal by an offender appellant or an application for leave to appeal by an offender appellant, it may, if it thinks fit, order the offender appellant", substitute "an appeal or an application for leave to appeal, it may, if it thinks fit, order the appellant".
234 Subsection 39(1)
Omit "offender".
Note: The heading to section 39 is altered by omitting " offender ".
235 Subsection 39(1)
Omit "an appeal before the Tribunal to which he or she is a party", substitute "his or her appeal before the Tribunal".
236 Subsections 39(2) and (3)
Omit "offender".
237 Subsection 39(3)
Omit "an appeal to which he or she is a party" substitute "his or her appeal".
238 Subsection 40(3)
Omit "offender".
239 Section 42
Omit "by an offender appellant".
Note: The heading to section 42 is altered by omitting " by offender appellants ".
240 Subsection 51(1)
Omit "the offender appellant or the Director of Military Prosecutions", substitute "appellant or Chief of the Defence Force or a service chief".
241 Subsection 52(1)
Omit "offender appellant or the Director of Military Prosecutions", substitute "appellant or Chief of the Defence Force or a service chief".
242 Paragraph 52(5)(c)
Omit "the Australian Military Court", substitute "a court martial or a Defence Force magistrate".
243 Paragraph 60(d)
Omit "offender".
244 Paragraph 60(d)
Omit "(other than the Director of Military Prosecutions)".
245 Paragraph 60(f)
Omit "offender".
246 Paragraph 60(g)
Omit ", a prescribed acquittal, a punishment imposed or a court order made by the Australian Military Court", substitute "or a prescribed acquittal by a court martial or a Defence Force magistrate".
247 Subparagraphs 60(g)(i) and (ii)
Repeal the subparagraphs, substitute:
(i) a record of the proceedings of the court martial or Defence Force magistrate; and
(ii) a record of any review with respect to the proceedings of the court martial or Defence Force magistrate; and
(iii) documents that were before the court martial, Defence Force magistrate or reviewing authority in connection with the proceedings, or the review of the proceedings, as the case may be; and
248 Paragraph 60(ga)
Repeal the paragraph.
249 Subsection 4(1) (paragraph (a) of the definition of Judge )
Omit "or the Australian Military Court".
250 Subsection 500A(14) (definition of court )
Repeal the definition, substitute:
"court" includes a court martial or similar military tribunal.
251 Subsection 501(12) (definition of court )
Repeal the definition, substitute:
"court" includes a court martial or similar military tribunal.
Schedule 2 -- Application and transitional provisions relating to proceedings
Part 1 -- Definitions and preliminary
1 Definitions
In this Schedule:
AMC means the Australian Military Court purportedly established by Division 3 of Part VII of the old Defence Force Discipline Act .
amended Defence Force Discipline Act means the Defence Force Discipline Act 1982 as amended by this Act.
commencement day means the day on which this Act commences.
DFDAT means the Defence Force Discipline Appeal Tribunal established by the Defence Force Discipline Appeals Act 1955 .
High Court decision date means 26 August 2009.
old Defence Force Discipline Act means the Defence Force Discipline Act 1982 as purportedly in force immediately before the High Court decision date.
Registrar has the same meaning as in the old Defence Force Discipline Act.
Part IV order means a restitution order or a reparation order purportedly made under Part IV of the old Defence Force Discipline Act .
2 Application of amendments
(1) The amendments made by Schedule 1 apply in relation to a service offence committed by a person on or after the commencement day.
(2) The amendments made by Schedule 1 apply in relation to a service offence committed by a person before the commencement day if:
(a) before the commencement day, the person had not been charged with the service offence under the old Defence Force Discipline Act ; or
(b) before the commencement day, the person had been charged with the service offence under the old Defence Force Discipline Act , but neither a summary authority nor the AMC had taken, or had purportedly taken, any action in relation to the charge; or
(c) the amendments apply because of the operation of the transitional provisions of Part 2 of this Schedule.
Note: The transitional provisions deal with particular situations where a person had been charged with a service offence before the commencement day, but the amendments are to apply (for example, because action in relation to the offence is underway but had not been completed on or before the commencement day).
Part 2 -- Transitional provisions
Division 1--Incomplete AMC proceedings
3 Charges purportedly referred to the AMC other than as a result of an election--no punishment imposed
(1) This item applies to a charge of a service offence against a person if:
(a) on or before the High Court decision date, the Director of Military Prosecutions requested the Registrar to refer the charge to the AMC; and
(b) the request was not made under subsection 103(4) of the old Defence Force Discipline Act (which deals with referrals resulting from an election); and
(c) either:
(i) the AMC had not, on or before the High Court decision date, purported to convict the person, dismiss the charge or acquit the person; or
(ii) the AMC had, on or before the High Court decision date, purported to convict the person, but had not, on or before that date, purported to impose a punishment on the person or make a Part IV order in relation to the charge.
(2) The charge is taken to be referred to the Director of Military Prosecutions on the commencement day, and the Director of Military Prosecutions may deal with the charge under section 103 of the amended Defence Force Discipline Act.
4 Charges purportedly referred to the AMC as a result of an election etc.--no punishment imposed
(1) This item applies to a charge of a service offence against a person if:
(a) on or before the High Court decision date:
(i) the Director of Military Prosecutions requested the Registrar under subsection 103(4) of the old Defence Force Discipline Act (which deals with referrals resulting from an election) to refer the charge to the AMC; or
(ii) the person had made an election under section 111C or 131AA of the old Defence Force Discipline Act in relation to the charge, but the Director of Military Prosecutions had not, on or before that date, taken action under subsection 103(4) of the old Defence Force Discipline Act in relation to the charge; and
(b) the AMC had not, on or before the High Court decision date, purported to convict the person, dismiss the charge or acquit the person.
(2) As soon as reasonably practicable after the commencement day, action must be taken under Part VII of the amended Defence Force Discipline Act to refer the charge to a summary authority to be dealt with as if no action in relation to the charge had been, or had purportedly been taken, under Part VII of the old Defence Force Discipline Act .
5 Part‑heard purported appeals to the AMC
(1) This item applies to an appeal purportedly made to the AMC against any of the following:
(a) a person's conviction by a summary authority of a service offence;
(b) a punishment imposed, or a Part IV order made, by the summary authority in respect of a person's conviction by a summary authority for a service offence;
if:
(c) the appeal was purportedly made on or before the High Court decision date; and
(d) in the case of an appeal against a conviction--the AMC had not, on or before that date, purportedly done any of the following:
(i) dismissed the appeal;
(ii) quashed the conviction; and
(e) in the case of an appeal against a punishment imposed, or a Part IV order made--the AMC had not, on or before that date, purportedly done either of the following:
(i) confirmed, quashed or varied the punishment;
(ii) confirmed, revoked or varied the Part IV order.
(2) The person may lodge with a competent reviewing authority a petition for a review of the proceedings of the summary authority under section 153 of the amended Defence Force Discipline Act.
(3) The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.
(4) If the person lodges a petition under section 153 of the amended Defence Force Discipline Act because of the operation of this item, then sections 153, 154, 155, 156 and 162, and Division 5 of Part VIIIA, and any other provisions of the amended Defence Force Discipline Act necessary for the effectual operation of those provisions, apply to the review.
Division 2--Incomplete summary authority proceedings
6 Division does not apply if an election required
This Division does not apply to, or in relation to, the proceedings of a summary authority in relation to a charge of a service offence against a person if the person was required to be given the opportunity to elect to have the charge of the service offence purportedly tried by the AMC.
7 Summary authority proceedings started but not completed before commencement
(1) This item applies if:
(a) before the commencement day, a person had been charged with a service offence under the old Defence Force Discipline Act ; and
(b) a summary authority had commenced dealing with the charge; and
(c) on or before the commencement day:
(i) the proceedings of the summary authority had not been completed; or
(ii) the proceedings of the summary authority had been completed, but no action had been taken by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act in relation to the proceedings of the summary authority.
(2) If the proceedings of the summary authority had not been completed on or before the commencement day, the proceedings of the summary authority are to continue under the amended Defence Force Discipline Act .
(3) If the proceedings of the summary authority had been completed on or before the commencement day, but no action had been taken under Part VIIIA of the old Defence Force Discipline Act in relation to the proceedings of the summary authority:
(a) a reviewing authority must, as soon as reasonably practicable on or after the commencement day, take action under Part VIIIA of the amended Defence Force Discipline Act in relation to the charge; and
(b) that Part applies in relation to the charge on and after the commencement day.
8 Summary authority proceedings--review proceedings started but not completed before commencement
(1) This item applies if, on or before the commencement day:
(a) a person was charged with a service offence; and
(b) a summary authority:
(i) imposed, or purported to impose, a punishment on the person; or
(ii) made, or purported to make, a Part IV order in relation to the person; and
(c) action had commenced in relation to the proceedings of the summary authority by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act, but review under that Part had not been completed.
(2) A reviewing authority must, as soon as reasonably practicable on or after the commencement day, take action in relation to the proceedings of the summary authority under Part VIIIA of the amended Defence Force Discipline Act as if no action had been taken, on or before the commencement day, by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act and that Part applies in relation to the proceedings of the summary authority.
9 Trials resulting in punishment by a summary authority--review proceedings completed before commencement day
(1) This item applies if, during the period beginning on 20 September 2008 and ending on the commencement day:
(a) a person was charged with a service offence; and
(b) a summary authority:
(i) imposed, or purported to impose, a punishment on the person; or
(ii) made, or purported to make, a Part IV order in relation to the person; and
(c) on or before the commencement day, review under Part VIIIA of the old Defence Force Discipline Act of the proceedings of the summary authority had been completed.
(2) The person may lodge with a competent reviewing authority a petition for review of the proceedings or purported proceedings of the summary authority, so far as those proceedings related to the punishment or Part IV order, under section 153 of the amended Defence Force Discipline Act .
(3) The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.
(4) If the person lodges a petition for a review because of the operation of this item, sections 153, 154, 155, 156 and 162 and Division 5 of Part VIIIA, and any other provision of the amended Defence Force Discipline Act necessary for the effectual operation of those provisions, apply to the review.
(5) A person may only lodge a petition for a review of proceedings or purported proceedings of a summary authority, so far as those proceedings related to a punishment or Part IV order, if the person is not entitled to lodge a such a petition in relation to the punishment or Part IV order because of the operation of another provision of this Schedule.
(6) If:
(a) before 20 September 2008 a person was charged with a service offence; and
(b) no action to deal with the charge had been taken before that day;
this item applies as if the person had been charge with the offence on 20 September 2008.
10 Stays of punishment
(1) This item applies if:
(a) before the commencement day, a summary authority had ordered under section 176 of the old Defence Force Discipline Act that the execution of a punishment be stayed pending the determination of a purported appeal to the AMC; and
(b) the AMC had not purportedly determined the appeal.
(2) The stay of the punishment is taken, by force of this item, to continue in force until the end of the period of 60 days beginning on the commencement day.
(3) This item does not prevent a reviewing authority from ordering that the execution of the punishment is to be stayed in whole or in part pending the determination of a review under Part VIIIA of the amended Defence Force Discipline Act that is conducted because of the operation of item 5.