EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 185

 

Issued by the authority of the Minister for Defence Science and Personnel

 

Defence Force Discipline Act 1982

Defence Force Discipline Amendment Regulations 2008 (No. 1)

 

 

Subsection 197(1) of the Defence Force Discipline Act 1982 provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

 

The Defence Force Discipline Amendment Regulations 2008 (No. 1) make consequential amendments to the Defence Force Discipline Regulations 1985 to reflect amendments made by the Defence Legislation Amendment Act 2006 (DLAA06) and the Defence Legislation Amendment Act 2008 (DLAA08).

 

Following the 2003 Senate Foreign Affairs, Defence and Trade Committee Inquiry into the Effectiveness of Australia’s Military Justice System and its subsequent report in June 2005, a number of reforms to the military justice system were implemented. Key reforms include the creation of the Australian Military Court (AMC), which replaced the system of trials by court martial or Defence Force magistrate and amendments to the Defence Force Discipline Appeal Tribunal appeals regime. These reforms were included in the Defence Legislation Amendment Act 2006 (DLAA06).

 

The introduction of a right to appeal to the AMC from summary proceedings, the ability of the Director of Military Prosecutions to seek a determination on a question of law from the Defence Force Discipline Appeal Tribunal, a re-designed right to elect trial by the AMC in the first instance and other amendments designed to simplify the summary proceedings system under the Defence Force Discipline Act 1982 (DFDA) (including a revised evidentiary framework applicable in a summary trial and amended review system of summary proceedings) were incorporated in the Defence Legislation Amendment Act 2008 (DLAA08).

 

The amendments contained in the Regulations, among other things, align new punishment provisions inserted by DLAA08 with the Defence Force Discipline Regulations 1985, which enable certain summary authorities to impose certain punishments in respect of officer cadets.

 

Details of the Regulations are contained in the Attachment.

 

The Acts specify no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are legislative instruments for the purpose of the Legislative Instruments Act 2003.

 

The Regulations commence on the commencement of Schedules 1 to 6 to the Defence Legislation Amendment Act 2008. Schedules 1 to 6 commences on 20 September 2008.

 

There has been no consultation in the making of this instrument as it relates to the management and service of members of the ADF.

 

 

 

ATTACHMENT

 

 

Defence Force Discipline Amendment Regulations 2008 (No. 1)

 

Regulations 1 to 3 contain amendment, citation and commencement details for the Defence Force Discipline Regulations 1985 and the Defence Force Discipline Amendment Regulations 2008 (No. 1).

 

Items [1], [2] and [4] omit the reference to ‘a service tribunal’ and substitute it with a reference to ‘the Australian Military Court’.

 

Item [3] substitutes regulation 26, which pertains to the admissibility of evidence before a summary authority. New regulation 26 ensures that, for the purposes of subsection 111A(1) of the DFDA, both oral evidence and a record of evidence are admissible in circumstances where the person charged is not disadvantaged by the admission of that evidence and he or she consents to the evidence being admitted.

 

Item [5] omits regulation 28, relating to certificates in respect of the analysis of narcotic goods. The content of this regulation is included in the Summary Authority Rules.

 

Items [6] and [7] make consequential amendments to regulations 29 and 30 respectively, to reflect the correct citation of Commonwealth and Australian Capital Territory Evidence legislation.

 

Item [8] omits and substitutes regulation 33 to reflect the amendments to the Defence Force Discipline Act 1982 (DFDA) by the DLAA08 applicable to officer cadets and in respect of minor disciplinary infringements under the Discipline Officer scheme in Part IXA of the DFDA. This item aligns new punishment provisions inserted by Tables B and C of Schedule 3 of the DLAA08 with the Principal Regulations, which enables certain summary authorities to impose certain punishments in respect of officer cadets and junior officers.

 

Item [9] provides for transitional arrangements. It makes it clear that the amendments made by Schedule 6 of DLAA08 apply in relation to a minor disciplinary infringement committed before the commencement day by a person subject to Part IXA of the ‘old DFDA’ (officer cadet and member below non commissioned officer). The amendment applies if, before the commencement day, the person had not been infringed under the ‘old DFDA’ or the person had been infringed under the ‘old DFDA’, but no action to deal with the infringement had been taken under the ‘old DFDA’.

 

Item [10] amends the heading to Schedule 1 to the Principal Regulations to reflect amendments made to regulation 29 (references to Australian Capital Territory Evidence legislation).