Australian Military Regulations (Amendment) (Cth)

STATUTORY RULES.

1943. No. 174.

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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 Defence Act 1903-1941.

Dated this fifth day of July, 1943.

GOWRIE

Governor-General.

By His Excellency’s Command,

F. M. FORDE

Minister of State for the Army.

 

Amendments of the Australian Military Regulations.

Definitions.

1.Regulation 3 of the Australian Military Regulations is amended—

(a) by omitting from sub-regulation (1) the definition of “Formation, &c.” and inserting in its stead the following definition:—

“‘Formation, &c.’ means the whole of the officers and soldiers belonging or attached to an army, corps, division, armoured division, Lines of Communication Area, Lines of Communication Sub-Area or to such other portions of the Military Forces as shall from time to time be appointed a formation, &c., by the Military Board.”; and

(b) by inserting in the definition of “Formation, &c., commander” in that sub-regulation, after the words “ commander of a formation, &c.,”, the words “not below the rank of colonel,”.

Extra Departmental employment, &c.

2. Regulation 211 of the Australian Military Regulations is amended by inserting in sub-regulation (1), after the word “shall”, the words “, unless, in time of war, he is on furlough pending his retirement”.

 

* Notified in the Commonwealth Gazette on 8th July, 1943.

  Statutory Rules 127, 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. 20 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, 134, 160 and 173; 1940, Nos. 2, 16, 20, 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 and 126.

2992.—Price 5d.

 

Disabilities attending suspension (Peace and war service).

3. Regulation 230 of the Australian Military Regulations is amended by inserting in paragraph (a) of sub-regulation (7), after the word “suspension”, the words “other than subsistence allowance during any period in which the officer or soldier is not being provided with rations and with quarters or tentage”.

Illegal or excessive punishments.

4.Regulation 265 of the Australian Military Regulations is amended—

(a) by omitting from sub-regulation (1) the words “punishment awarded by” and inserting in their stead the words “finding of, or punishment awarded by,”; and

(b) by omitting from sub-regulation (1) the word “award” and inserting in its stead the words “finding and award or award (as the case may be)”.

When pay and allowances not to be stopped.

5.Regulation 295 of the Australian Military Regulations is amended—

(a) by omitting from sub-regulation (1) the words “An officer or soldier shall not be disentitled to receive pay or allowances” and inserting in their stead the words “The pay or allowances of an officer or soldier shall not be stopped under D.A. 119” ;

(b) by omitting from that sub-regulation paragraph (a) and inserting in its stead the following paragraph:—

“(a) if the officer or soldier is found guilty of a charge dealt with by a court martial, in respect of any day between the signature by the president of the court martial of the original sentence and promulgation, unless, after confirmation, the sentence is, or includes, penal servitude, imprisonment or detention; or”;

(c) by inserting in paragraph (c) of that sub-regulation, after the word “charge” (second occurring), the words “or of being in close arrest”; and

(d) by inserting in paragraph (e) of that sub-regulation, after the word “imposed”, the words “by his C.O.”.

Adaptation and Modification of A.A. 56 (5) and R.P. 44 (B) and (C), 47, 48, 50 and Appendix II.

6.—(1.) Regulation 319 of the Australian Military Regulations is amended—

(a) by omitting from paragraph (a) of sub-regulation (2) the word “and” (last occurring);

(b) by adding at the end of that sub-regulation the following paragraphs:—

“; and (c) R.P.48, as if there were, added at the end thereof the words ‘The Court shall insert below the punishment awarded by it a statement to the following effect “The Court has taken into consideration in awarding the punishment above set out that the accused has been …….. days in open arrest and ….... days in close arrest.” ’;

 

“(d) The Second Appendix to the R.P. as if there were inserted, after the paragraph headed ‘Sentence’, the following paragraph:—

‘TIME ACCUSED WAS IN ARREST.

The Court has taken into consideration in awarding the punishment above set out that the accused has been............................................... days in open arrest and ....  days in close arrest.’”.

(2.) This regulation shall come into operation as on the expiration of one month after its notification in the Gazette.

Modification and Adaptation of A.A. 57a (Peace and war service).

7.Regulation 345 of the Australian Military Regulations is amended—

(a) by inserting after paragraph (a) the following paragraph:—

“(aa) Sub-sections (1), (2), (3), (4), (6) and (7) are omitted and the following sub-sections respectively inserted in their stead:—

(1) Where a soldier is sentenced to penal servitude, imprisonment, detention or field punishment, the confirming authority to whom the sentence is submitted for confirmation may, when confirming the sentence, direct that the sentence shall not be carried into effect until the orders of a superior military authority have been obtained.

(2) A superior military authority may in the case of any soldier so sentenced—

(a) direct that the sentence shall not be carried into effect until his orders have been obtained;

(b) suspend the sentence whether or not the soldier has already been committed to prison or detention barracks, or commenced to suffer field punishment.

(3) Where a sentence of penal servitude, imprisonment, detention or field punishment is suspended under this section before the soldier has been committed to prison or detention barracks or commenced to suffer field punishment, the soldier, if in custody, shall be released and notwithstanding anything in this Act, the sentence shall not begin to run until the soldier is ordered to be committed to prison, or detention barracks, or to suffer field punishment under that sentence.

 

(4) Where a sentence of penal servitude, imprisonment, detention or field punishment is suspended under this section after the soldier has been committed to prison or detention barracks or commenced to suffer field punishment, he shall be released (if in custody) and the currency of the sentence shall be suspended from the day on which he is released, or, if he is not in custody, from the date specified by the superior military authority suspending the sentence, until he is again ordered to be committed to prison or detention barracks or to suffer field punishment under the same sentence.

(6) A superior military authority may, at any time, while a sentence is suspended under this section, order that the soldier be committed to prison, detention barracks or other place of detention within the meaning of the Australian Military Regulations or commence to suffer field punishment, and from the date of such order the sentence shall cease to be suspended.

(7) Where a soldier whilst a sentence on him is so suspended is sentenced to penal servitude, imprisonment, detention or field punishment for a fresh offence, a superior military authority may direct that the two sentences shall either run concurrently or consecutively, so, however, that the aggregate term of imprisonment or detention served under two or more sentences of imprisonment or detention shall not exceed two consecutive years except when one of the sentences is of imprisonment exceeding two years, and in that case the sentences shall run concurrently, or that the aggregate term of field punishment under two or more sentences of field punishment shall not exceed three months; provided that, where the sentence for such fresh offence is a sentence of penal servitude, then, whether or not that sentence is suspended, any previous sentence of imprisonment detention or field punishment which has been suspended shall be avoided.”; and

(b) by omitting paragraphs (d) and (e).

 

Documentary Evidence.

8. Regulation 388 of the Australian Military Regulations is amended—

(a) by omitting the words “or a court martial” and inserting in their stead the words “, a court martial or a C.O.”;

(b) by inserting in paragraph (h) after the words “assistant provost-martial” (first occurring) the words “or any other member of the Australian Army Provost Corps,”;

(c) by inserting in that paragraph after the words “assistant provost-marshal” (second occurring) the words “or the member of the Australian Army Provost Corps to whom the surrender or by whom the arrest was made.”

(d) by inserting in paragraph (i) after the word “authority” the word “or officer” ; and

(e) by adding at the end thereof the following paragraph:—

“(m) The averment of the prosecution or prosecuting officer that any package referred to in the charge which purports to have been posted or otherwise despatched by the member charged or some other person specified in the averment shall in any proceedings relating to that package be prima facie evidence that the package was posted or dispatched by that member or other person, as the case may be”.

Proof in proceedings for failure to enlist, &c.

9. Regulation 388a of the Australian Military Regulations is amended by omitting sub-regulation (1.) and inserting in its stead the following sub-regulation:—

“(1.) In any proceedings against a person for refusing or neglecting to take the oath or for failure to enlist, register, enrol or attend for or submit to medical examination when required by the Defence Act or any regulation made thereunder so to do, the averments of the prosecutor or any of them contained in the information or complaint—

(a) that the defendant on the date therein mentioned—

(i) was a male inhabitant of Australia;

(ii) was not exempt by or under the Defence Act or any other Act or any Regulations made under any Act from service in any part of the Defence Force or training under the Defence Act or liability to enrol under these Regulations, as the case may be;

(iii) had resided in Australia for six months;

(iv) was a British subject;

(v) was of the age or between the ages mentioned in the information or complaint;

(vi) was a member of a class called upon by proclamation to enlist pursuant to the Defence Act;

2992.—2

 

(vii) resided within a distance of five miles, reckoned by the nearest practicable route, from the nearest place appointed for training, or within any distance prescribed by any regulation or specified in any order or notice given or issued in pursuance of those Regulations requiring him to enrol or attend for or submit to medical examination; or

(b) that any letter, writing or other document of whatsoever nature relevant to the charge was written or signed by the defendant or was posted in an envelope by the defendant,

shall be prima facie evidence of the matter or matters averred.”.

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By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.