Australian Military Court Amendment Rules 2008 (No. 2) (Cth)

Australian Military Court Amendment Rules 2008 (No. 2)¹

Select Legislative Instrument 2008 No. 172

I, IAN DENIS WESTWOOD, AM, Chief Military Judge, make the following Rules under section 149A of the Defence Force Discipline Act 1982.

Dated 20 August 2008

I. D. WESTWOOD

Chief Military Judge

Name of Rules

These Rules are the Australian Military Court Amendment Rules 2008 (No. 2).

Commencement

These Rules commence on the day after they are registered.

Amendment of Australian Military Court Rules 2007

Schedule 1 amends the Australian Military Court Rules 2007.

Schedule 1 Amendments

(regulation 3)

[1] Rule 4, definition of defending officer

substitute

defending officer means a person who is instructed by an accused person to represent the accused person before the Australian Military Court and is entitled to do so under section 136 of the Act.

[2] Rule 4, definition of prosecuting officer

substitute

prosecuting officer means the Director of Military Prosecutions or a person authorised to represent the Director of Military Prosecutions under section 188GB of the Act.

[3] Rule 5

substitute

5 Seal and stamp of Australian Military Court

Note 1 Subsection 119 (1) of the Act provides that the design of the seal of the Australian Military Court is to be determined in writing by the Minister. The Minister has determined the design of the seal, and a copy of that design is at Form 1 of Schedule 2.

Note 2 Subsection 119 (2) of the Act provides that the seal of the Australian Military Court must be kept in such custody as the Chief Military Judge directs.

(1) For subsection 119 (3) of the Act, the seal of the Australian Military Court must be affixed to the following documents:

(a) rules of the Australian Military Court;

(b) practice notes issued by the Chief Military Judge under rule 69;

(d) any other document specified in a practice note as a document to which the seal is to be affixed;

(e) any other document that the Australian Military Court directs as a document to which the seal is to be affixed.

Note Subsection 119 (3) provides that the seal of the Australian Military Court must be affixed to documents as provided by the Act or any other Act or by the Australian Military Court Rules.

(2) For subsection 120 (3) of the Act, the stamp of the Australian Military Court must be affixed to the following documents:

(a) summons issued by the Australian Military Court;

(b) any other document specified in these Rules as a document to which the stamp is to be affixed;

(d) any other document that the Australian Military Court directs as a document to which the stamp is to be affixed.

Note Subsection 120 (3) provides that the stamp of the Australian Military Court must be affixed to documents as provided by the Act or any other Act or by the Australian Military Court Rules.

(3) If a document is required to have the seal or stamp affixed, the requirement is satisfied if a facsimile of the seal or stamp is affixed on the document by electronic means by, or at the direction of, the person affixing the seal or stamp.

(4) The stamp, or stamps, of the Australian Military Court must be kept in the custody of one or more of the following:

(a) a Military Judge;

(b) the Registrar;

[4] Paragraph 12 (3) (c)

omit

or counsel

[5] Subrule 12 (4)

omit

or counsel

[6] Paragraph 20 (1) (c)

omit

not less that 16 years

insert

not less than 16 years

[7] Subrule 23 (1)

substitute

(1) The Registrar must issue a notice informing the accused person of his or her right to make an election for mode of trial if:

(a) a charge is referred to the Registrar; and

(b) that charge is a charge in relation to which:

(i) the accused person may make an election for mode of trial; and

(ii) the Director of Military Prosecutions has not, up to and immediately before the issuing of the notice, informed the Registrar of a decision that the offence is to be tried by a Military Judge alone.

Note 1 An accused person may not make an election for the mode of trial in relation to a charge of a class 1 offence — see section 132A of the Act.

Note 2 An accused person may make an election for the mode of trial in relation to a charge, or charges, of class 2 and class 3 offences, unless:

(a) one of the charges against the accused person is for a class 1 offence — see section 132AA of the Act; or

(b) a co‑accused does not make an election for the mode of trial to be by Military Judge alone — see sections 132AA and 132AB of the Act; or

(c) the charge is of a class 3 offence and the Director of Military Prosecutions has decided that the offence is to be tried by a Military Judge alone — see subsections 103A (2) and 132AB (2) of the Act.

[8] Subrule 34 (1)

after

military juror

insert

or reserve military juror

[9] Paragraph 34 (1) (b)

after

military juror’s

insert

, or reserve military juror’s, place of duty, as the case may be

[10] Rule 37

substitute

37 Objection by accused person on grounds of ineligibility etc

At any time before a military jury is assembled the accused person or the Director of Military Prosecutions may lodge an objection with the Registrar to any military juror or reserve military juror, on the ground that the military juror or reserve military juror:

(a) is ineligible; or

(b) is, or is likely to be, biased; or

[11] Subrule 43 (1)

substitute

(1) The Registrar must arrange for a person to act in the position of a recorder.

(1A) If the following positions are required at proceedings before the Australian Military Court, the Registrar must arrange for persons to act in the positions:

(a) an interpreter;

(b) a military jury court officer.

[12] Subparagraph 43 (5) (c) (ii)

omit

Court;

insert

Court; and

[13] Paragraph 47 (2) (b)

omit

law

insert

the law

[14] Subrule 62 (2)

omit

[15] After subrule 64 (4)

insert

(5) The Chief Military Judge must keep a proper record of the proceedings of the Australian Military Court.

(6) The proper record must be kept in the custody of:

(a) the Chief Military Judge; or

(b) a person nominated in writing by the Chief Military Judge.

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See