Australian Military Regulations (Amendment) (Cth)
STATUTORY RULES.
_______
REGULATIONS UNDER THE DEFENCE ACT 1903-1941.*
I,
THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the
advice of the Federal Executive Council, hereby make the following Regulations
under the
Dated this twenty-ninth day of September, 1943.
GOWRIE
Governor-General.
By His Excellency’s Command,
F. M. FORDE
Minister of State for the Army.
________
Amendments of the Australian Military Regulations.
“Division 6.—Australian Army Legal Department.......................... 575—585”
and inserting in their stead the following words and figures:—
“Division 6.—Judge-Advocate-General........................................... 575”
“Division 6a.—Australian Army Legal Corps.......................... 576, 585a”.
(
a ) by omitting from, paragraph (b ) of sub-regulation (1) the words “Australian Army Legal Department” and inserting in their stead the words “Australian Army Legal Corps”; and
* Notified in the
Statutory Rules 1927, No. 149, as amended by Statutory Rules 1928, Nos. 23, 28 and 126; 1929, No. 123; 1930, Nos. 26, 67 and 92; 1931, No. 13; 1932, Nos. 80, 87 and 125; 1933, Nos. 49 and 77; 1934, Nos. 26 and 80; 1935, Nos. 99 and 109; 1936, Nos. 21, 44 and 100; 1937, No. 45; 1938, Nos. 75, 90 and 93; 1939, Nos. 31, 51, 58, 115, 123, 131, 160 and 173; 1940, Nos. 2, 10, 29, 59, 150, 183, 184, 185, 186, 199, 237, 252, 272 and 273; 1941, Nos. 3, 4, 14, 43, 135, 153, 155, 205, 245, 246, 260 and 311; 1942, Nos. 35, 59, 60, 85, 114, 166, 179, 211, 231, 289, 333, 334, 350, 417, 477, 506, 508, 521, 522, 555 and 556 and 1943, Nos.17, 72, 126, 157, 174, 199 and 200.
4097.—Price 8d.
(
b ) by omitting from paragraph (b ) of sub-regulation (2) the words “Australian Army Legal Department” and inserting in their stead the words “Australian Army Legal Corps”.
“(
da ) For an offence committedwhether on war service or not by a N.C.O. of the rank of Corporal of the Permanent Forces or Citizen Forces:—Reduction to the ranks.”.
“278a.—(1) When a soldier is alleged to have been absent without leave from his duty for a period of 21 days, the C.O. of the absent soldier may direct an officer to investigate the alleged absence and the deficiency (if any) in the arms, ammunition, equipment, instruments, regimental necessaries, or clothing of the soldier, or in any public property issued to him for his use or entrusted to his care for military purposes, and, if the officer carrying out that investigation is satisfied that the soldier has absented himself without leave or other sufficient cause, that officer shall forward to the C.O. a declaration as to such absence and the period thereof and the deficiency (if any) in or to the effect of the following form:—
Declaration of Investigating Officer as to Illegal Absence.
Unit
Surname of absentee No. Rank
Christian names of absentee
I (No., rank, name and unit of investigating officer) solemnly and sincerely declare:
1. That, pursuant to orders received from my Commanding Officer, I have faithfully investigated the alleged illegal absence of (No., rank and name of soldier) and now declare that the said member absented himself without leave at hour on the day of 19 and that he is still so absent. The circumstances under which the member absented himself were as follows:—
Such declaration is based upon my inspection of the relevant rollbook and upon information, which I verily believe, supplied to me by the undermentioned person (s) who, I am satisfied, could testify to the facts from personal knowledge:—
(No., rank and name (s) of person (s) interviewed.)
2. That I further report that the said member is deficient in the items mentioned in the schedule hereto and that such items are irrecoverable. This report is based upon my inspection of the record of issues to the said member and upon information, which I verily believe, supplied to me by the undermentioned person (s) who, I am satisfied, could testify to the facts from personal knowledge:—
(No., rank and name (s) of person (s) interviewed.)
Item. | Unexpired value of each item. | Remarks. |
And
I make this solemn declaration by virtue of the
Declared this day of 19 .
Before me:
|
|
Certified that all necessary entries appear in unit records.
Rank.
Date: C.O. or Adjut.
“(2) The C.O. of a soldier whose absence from duty has been investigated pursuant to sub-regulation (1) of this regulation, shall, if so required by the order of a proper military authority, enter in the regimental books a record of the declaration of the investigating officer.
“(3) If the absent soldier does not afterwards surrender or is not apprehended, such declaration shall have the legal effect of a conviction by court martial for desertion.
“(4) The declaration of an investigating officer shall be preserved whether a record of the certificate is entered in the regimental books or not.
“(5) A soldier, the subject of an investigation under this regulation, shall be entitled to a copy of the declaration of the investigating officer which shall be supplied, on the application of the soldier, by the person having the custody of the original or of the record thereof in the regimental books.”.
(
a ) by inserting after sub-paragraph (iii) of paragraph (a ) of sub-regulation (1) the following paragraph:—“(iii
a ) After the word ‘years’ in paragraph (4) the following proviso was added:—‘Provided that, for the trial of a person charged with deserting or attempting to desert His Majesty’s
4697.—2
Service under section 12, or with absenting himself without leave under section 15, of this Act a district court martial may consist of one officer of field rank—
(
а ) who has served as an officer on the active list for not less than three years in some arm of the service other than the Australian Army Legal Corps or Australian Army Medical Corps and who is a duly admitted Barrister or Solicitor of the High Court of Australia or of the Supreme Court of a State of at least five years standing, or(
b ) is certified by the Director of Legal Services to have had sufficient commissioned service and legal training to fit him for appointment as sole member of such a court,and that officer shall exercise every power and function vested in the President of a district court martial by this Act requisite or necessary to carry out the functions of a district court martial, and any provision contained in this Act, or the Rules of Procedure applicable to a district court martial shall apply so far as it is applicable to a district court martial consisting of one officer as hereinbefore provided, except that a district court martial so constituted shall not award a sentence of detention exceeding twelve months and shall not award any sentence of imprisonment.’;
(
b ) by inserting after paragraph (c ) the following paragraphs:—“(
ca ) Rule of Procedure 25 (A) shall be read as if at the end thereof the following proviso were added:—‘Provided that, where the court is a district court martial consisting of one officer, an objection to that officer shall be disposed of as that officer thinks fit and the grounds of objection and the manner of its disposal shall be noted by that officer in the proceedings of the court. If that officer considers he is not justified in proceeding with the trial, he shall adjourn the court and report to the convening officer for direction.’”.
“(
(
‘Where the court is a district court martial consisting of one officer, that officer shall take the oath’;
(
“(
a ) as if there were inserted therein, next after the words ‘Army Act’, the words ‘and the Defence Act of the Commonwealth of Australia and the Regulations made thereunder”; and(
b ) as if the words ‘Army Council’ were omitted and the words ‘Military Board’ inserted in their stead; and(
c ) as if after the words ‘and I do further swear that’ (first occurring), there were inserted the words ‘except in accordance with R.P. 50 and’,”.
“(
c ) as if at the end thereof the following sub-rules were added:—‘(G) A court martial may amend any charge contained in a charge sheet provided that the statement of offence is, after amendment, within the particulars originally alleged in respect of that charge.
‘(H) A court martial may amend the statement of particulars contained in any charge, provided that the amended particulars in respect of any charge of desertion or absence without leave fall within the period of absence originally alleged.
‘(I) If any amendment is made under paragraph (G) or (H) of this R.P., the accused shall be granted any adjournment which the interest of justice appears to demand and which he may require in consequence of such amendment.’”.
(
a ) by omitting from paragraph (b ) of sub-regulation (2) the word “and” (last occurring); and(
b ) by adding, at the end of that sub-regulation the following word and paragraph:—“; and (
e ) R.P. 50, as if there were added at the end thereof the following words:—‘After the President and Judge-Advocate (if any) have signed the sentence, the President shall deliver, or cause to be delivered, to the accused, in a sealed cover, particulars in writing of the finding and sentence of the court, together with a statement that the finding and sentence are not final until they are confirmed. Failure to comply with the requirements of this rule shall not invalidate the proceedings.”.
“(2) A petition shall be referred for report and advice to the Judge-Advocate-General or a Deputy Judge-Advocate-General before consideration by the appropriate authority.”.
“(
ka ) A declaration of an officer under A.M.R. 278a, or a document purporting to be certified to be a true copy by the officer having the custody of the original, shall be admissible as primary evidence of the facts stated in the declaration without proof of the appointment of the officer to make the investigation, or of the signature of the original, or of the handwriting of the officer, or of his having the custody of the original.”.
“388b. In any proceedings against a member of the Military Forces in respect of a military offence, whether before a civil court or court martial, that member may, if so advised by his counsel or defending officer, make any admissions of fact.
(2) Any
admissions made pursuant to the last preceding sub-regulation shall be
“575.—(1) The Governor-General may appoint a Judge-Advocate-General and Deputy Judge-Advocates-General.
“(2) The Judge-Advocate-General shall be a civilian, but shall be entitled to the status and privileges of a major-general.
“(3) Except in time of war, no Judge-Advocate-General or Deputy Judge-Advocate-General shall hold office for more than four years unless re-appointed.
“(4) The duties of the Judge-Advocate-General shall be—
(
a ) to advise the Governor-General, the Minister for the Army, the Military Board and Principal Staff Officers on such matters of law or mixed law and fact as they refer to him for his advice;(
b ) to examine and advise on all court martial proceedings not reported upon by a Deputy Judge-Advocate-General;(
c ) to examine and advise on all petitions in respect of courts martial;(
d ) to give such rulings and opinions on military law as he thinks necessary or advisable; and(
e ) to consider amendments of regulations affecting the Military Forces.
“(5) The duties of a Deputy Judge-Advocate-General shall be—
(
a ) if at the Head-quarters of the Military Forces in the Commonwealth, to assist the Judge-Advocate-General, and in his absence or when the office is vacant, if he is the senior Deputy Judge-Advocate-General, to perform the duties of the Judge-Advocate-General; or(
b ) if attached to the staff of a formation or other command, to perform, subject to the directions of the Judge-Advocate-General, within the formation or other command and for the officer commanding, the like duties to (those of the Judge-Advocate-General.
“(6) The Judge-Advocate-General or a Deputy Judge-Advocate-General may, in relation to any matters or class of matters, or in relation to any particular part of Australia, by writing under his hand delegate all or any of the powers and functions vested in him by virtue of his appointment so that the delegated powers and functions may be exercised or performed by the delegate with respect to the matters or class of matters or the part of Australia specified in the instrument of delegation.
“(7) When a Judge-Advocate-General or Deputy Judge-Advocate-General makes a recommendation with reference to the finding or sentence of a court martial, the authority to whom the recommendation is made shall inform him of the action which is taken thereon.
“(8) Notwithstanding anything contained in these Regulations—
(
a ) A Deputy Judge-Advocate-General may be transferred or seconded from his appointment and, if out of the Commonwealth, returned to Australia only by the Governor-General; and(
b ) An officer of the Australian Army Legal Corps attached to the staff of the Judge-Advocate-General or of a Deputy Judge-Advocate-General shall not be transferred, removed, suspended or seconded, or, if out of the Commonwealth, returned to Australia, without previous reference to and the approval of the Judge-Advocate-General or the Deputy Judge-Advocate-General, as the case may be.
“(9) A Deputy Judge-Advocate-General shall communicate on questions of military law directly with the Judge-Advocate-General, or, during his absence or a vacancy in the office of Judge-Advocate-General, with the senior Deputy Judge-Advocate-General at the Headquarters of the Military Forces in the Commonwealth.
“(10) All members of the Australian Military Forces shall be bound by the rulings and opinions on questions of military law given by the Judge-Advocate-General, or, during his absence or a vacancy in
the office of Judge Advocate-General, by the Senior Deputy Judge-Advocate-General at the Head-quarters of the Military Forces in the Commonwealth.
(11) Subject to the provisions of sub-regulation (10) of this regulation, the rulings and opinions of a Deputy Judge-Advocate-General attached to a body of the Military Forces out of the Commonwealth, on any subject of military law, shall be binding on a legal officer attached to that body.
“576.—(1) There shall be an Australian Army Legal Corps, consisting of officers of the Military Forces appointed to that Corps, or transferred to, or seconded for duty with, that Corps from other portions of the Military Forces.
“(2) No person who is not—
(
a ) a barrister or solicitor of the High Court of Australia, or of the Supreme Court of a State, or(
b ) a person recognized by the Director of Legal Services as possessing in any part of His Majesty’s Dominions a status and qualification equivalent to those of a person mentioned in paragraph (a ) of this sub-regulation, and(
c ) over the age of twenty-five years,
shall be appointed or transferred to, or seconded for duty with, or continue to hold office in, the Australian Army Legal Corps.
“(3) An officer shall not be seconded for duty with the staff of the Judge-Advocate-General or a Deputy Judge-Advocate-General, or appointed to the Directorate of Legal Services at the Head-quarters of the Australian Military Forces or to be a legal officer at the head-quarters of any formation or other command, unless he is a member of the Australian Army Legal Corps.
“577.—(1) Except as otherwise provided by these Regulations, the rank of officers of the Australian Army Legal Corps shall be substantive.
“(2) The substantive or temporary rank of an officer of the Australian Army Legal Corps, shall not be higher than that of a Brigadier.
“(3) Officers of the Australian Army Legal Corps shall not exercise any military command except over such officers and soldiers as are detailed for duty under their orders or in the performance of any duties allotted to them under these Regulations.
“(4) Notwithstanding anything contained in these Regulations, officers of the Australian Army Legal Corps shall be entitled, according to rank, to the presidency of courts martial and courts of inquiry.
“578.—(1) First appointment to the Australian Army Legal Corps shall be in the rank of acting lieutenant for a period of three months and, at the termination of that period, if the Director of Legal Services certifies that the officer’s service has been satisfactory, the officer shall be given the substantive rank of Captain:
Provided that the period of acting rank may be dispensed with and first appointment made to higher rank in any special case upon the recommendation of the Director of Legal Services.
“(2) An officer transferred to the Australian Army Legal Corps—
(
a ) who holds a rank lower than that of captain shall be promoted to the rank of captain; or(
b ) who holds the rank of captain or a higher rank shall retain his rank:
Provided that in either case, in special circumstances, a higher rank may be conferred on the recommendation of the Director of Legal Services.
“(3) An officer seconded for duty with the Australian Army Legal Corps who holds a rank lower than that of captain shall be granted the temporary rank of captain, or, in special circumstances and on the recommendation of the Director of Legal Services, a higher temporary rank.
“(4) Appointment and transfer to, seconding for duty with, and promotion in, the Australian Army Legal Corps shall be made by selection without examination and with due consideration, not only to the service (if any) of the candidate, but also to the practicability, having regard to his place of residence, of his performing the duties of the vacant office.
“(5) Promotion of an officer while seconded for duty with the Australian Army Legal Corps shall be to temporary rank only:
Provided that when an officer so seconded is eligible for promotion and would be promoted if serving with his unit, he may be promoted, and, thereupon, shall rejoin his unit.
“(6) Except in time of war an officer seconded for duty with the Australian Army Legal Corps shall not remain seconded for more than four years, but, while seconded, may, on the recommendation of the Director of Legal Services, be granted a transfer to the Australian Army Legal Corps with substantive rank equivalent to any temporary rank which he held immediately before his transfer.
“579. Except in time of war, an officer appointed or transferred to the Australian Army Legal Corps shall not be transferred or re-transferred to any other unit of the Military Forces except to fill an available vacancy for which he is qualified by examination.
“580.—(1) Notwithstanding anything contained in these Regulations, persons qualified for appointment to the Australian Army Legal Corps may be appointed to the Reserve of Officers, Australian Army Legal Corps.
“(2) An officer appointed or transferred to the Australian Army Legal Corps for whom no suitable appointment or duty is available may be transferred to the Reserve of Officers, Australian Army Legal Corps.
“(3) Officers appointed or transferred under this regulation may, notwithstanding anything contained in these Regulations, remain on the Reserve of Officers, Australian Army Legal Corps, until they reach the age of retirement.
“581.—(1) Officers of the Australian Army Legal Corps shall, subject to A.M.R. 575 (2), be available for appointment as Judge-Advocate-General, Deputy Judge-Advocate-General, to the staff of the Judge-Advocate-General or of a Deputy Judge-Advocate-General, to the
Directorate of Legal Services at the Head-quarters of the Australian Military Forces or as legal officers at the head-quarters of any formation or other command.
“(2) Except in time of war, officers of the Australian Army Legal Corps shall not, except with the approval of the Director of Legal Services, hold the same appointment for more than four years, unless re-appointed.
“582.—(1) The duties of a legal officer at the head-quarters of any formation or other command shall be—
(
a ) to advise upon and settle the form of charges when submitted to him;(
b ) to act as judge-advocate at such courts martial and trials by courts martial as he shall be appointed to or for;(
c ) to act as president or a member of a court martial when a judge-advocate is not appointed and the convening authority considers that a legal officer should be appointed;(
d ) to act as prosecutor at a trial by court martial when the convening authority considers that a legal officer should be appointed;(
e ) to act as president or a member of a court of inquiry when the convening authority considers that the nature of the inquiry is such as to render the appointment of a legal officer advisable;(
f ) to examine and advise upon the proceedings of such trials by court martial as shall be referred to him;(
g ) to advise upon such questions of military law, including the conduct of prosecutions for offences against the D.A., as shall be referred to him;(
h ) to instruct in military law, including the conduct of prosecutions for offences against the D.A., the officers of the formation or other command to which he is attached; and(
i ) when employed on war service, to perform such other duties of a legal nature as shall be assigned by the officer under whose command he is serving.
“(2) An officer of the Australian Army Legal Corps shall not express any opinion on a sentence, except as to its legality, unless in his opinion the sentence is excessive, or he is requested to do so by superior authority.
“(3) An officer of the Australian Army Legal Corps, whether belonging to the Active or Reserve Military Forces, who is not acting as Director of Legal Services or attached to that Directorate or at the head-quarters of any formation or other command may be detailed to perform or assist in performing any of the duties of a legal officer.
“(4) Except in time of war, officers of the Australian Army Legal Corps shall not be required to attend parades or camps of continuous training, except to the extent necessary for the performance of their duties, but may be required to deliver lectures, hold classes, and conduct examinations in military law at camps of continuous training, schools of instruction, or elsewhere.
“583.—(1) All matters relating to any appointment, promotion or transfer to, in, or in connexion with, the Australian Army Legal Corps shall, subject to these Regulations, be under the control of—
(
a ) in connexion with any portion of the Military Forces within the Commonwealth—the Director of Legal Services; or(
b ) in connexion with any body of the Military Forces out of the Commonwealth—the senior officer of the Australian Army Legal Corps (not being a Deputy Judge-Advocate-General) attached to that body of the Forces.
“(2) A certificate of the Director of Legal Services that the person concerned is suitable for the appointment or promotion shall be obtained when an appointment or promotion to or in the Australian Army Legal Corps is contemplated and no such appointment or promotion shall be made without such certificate.
“(3) An officer of the Australian Army Legal Corps at the head-quarters of a formation or other command shall be under the command of the officer commanding the formation or other command, but any officer not so attached shall be under the command of the Director of Legal Services.
“584.—(1) The legal officer, or the senior legal officer of a formation or other command forming part of a larger formation or other command, shall communicate on questions of military law directly with the legal officer or senior legal officer at the next larger formation or command to which the officer communicating belongs.
“(2) In respect of any matter upon which no ruling has been given by the Judge-Advocate-General, legal officers shall be bound, by the ruling, direction or opinion of the officer with whom they are required by the last preceding sub-regulation to communicate, or, in the case of difference, by the ruling, direction or opinion of the legal officer or senior legal officer of the largest formation or other command to whom the question has been referred:
Provided that, on the application of any legal officer, a question shall be referred, for opinion, to the Director of Legal Services, who may, if it appears to him desirable, submit the question to the Judge-Advocate-General for his ruling.
“585. An officer of the Australian Army Legal Corps shall be classified as efficient for each year in which he satisfactorily performs the duties allotted to him.
“585a. The duties of the Director of Legal Services in respect of the Australian Army Legal Corps shall include—
(
a ) the supervision, control, working and efficiency of legal service within the Australian Military Forces;(
b ) the submission of reports upon and the making of recommendations with reference to the instruction in military law of officers of the Military Forces;(
c ) advising upon and settling of the form of charges referred to him; and(
d ) advising upon all matters relating to court martial proceedings prior to confirmation referred for his opinion.”.
By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra
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