Australian Military Regulations (Amendment) (Cth)
STATUTORY RULES
REGULATIONS UNDER THE DEFENCE ACT 1903-1965.*
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-fifth day of November, 1966.
CASEY
Governor-General.
By His Excellency’s Command,
MALCOLM FRASER
Minister of State for the Army.
Amendments of the Australian Military Regulations
“ Division 7.—Investigation of Charges and power of Commanding officer and superior authority 237-255
Division 8.—Summary and minor punishments of soldiers 256-265 ”
and inserting in their stead the words—
“ Division 7.—Powers of Commanding Officers, Investigation of charges, and summary disposal of charges, against soldiers 237-265a ”.
(2.) Regulation 2 of the Australian Military Regulations is further amended by inserting after the words—
“ Division 19. —Military prisons and places of detention 359-370 ”
the words—
“ Division 19a.—Field Punishment 370a ”.
(
a ) by omitting from sub-regulation (1.) the definitions of “ Commanding Officer ”, “ Company, &c.” and “ War service ”; and
* Notified in the
Statutory Rules 1927, No. 149, as amended
to date. For subsequent amendments of the Australian Military Regulations
8289/66.—Price 25c (2s. 6d.) 9/15.11.1966
(
b )by adding at the end thereof the following sub-regulations:—“ (7.) In these Regulations, unless the contrary intention appears, references to the Commanding Officer of a member shall be read—
(
a ) in a regulation referring to arrests, the investigation of charges, summary or minor punishments, courts martial or the execution of sentences— as referring to the person who is the Commanding Officer of the member for the purposes of Division 7 of Part IV. of these Regulations; and(
b ) in any other regulations—as referring to the officer who is the Commanding Officer of the member according to the custom of the Service.
“ (8.) In these Regulations, unless the contrary intention appears—
(
a ) references to a member on war service shall be read as including references to a member deemed to be on war service by virtue of section 54 of the Defence Act; and(
b )references to a person on war service shall be read as including references to a person, being a member, deemed to be on war service by virtue of section 54 of the Defence Act.”.
(
a ) by omitting from the table in paragraph (b ) of sub-regulation
(2a.) the words—
|
|
(
b ) by omitting from sub-regulation (2b.) the figures “ 130, 134a,” and inserting in their stead the figures “ 129, 130, 134a, 135a ”.
(
a ) by omitting from sub-paragraph (iii) of paragraph (c ) the word “ and ”; and(
b )by inserting after sub-paragraph (iii) of paragraph (c ) the following sub-paragraphs:—“ (iii
a ) As if paragraph (5) were omitted and the following paragraph inserted in its stead:—‘(5) Where a soldier on active service is guilty of an offence, a court martial may impose on the soldier in respect of the offence a sentence of field punishment for a period not exceeding 90 days.’;
“ (iii
b )As if paragraph (9) were omitted; ”.
“ 237. In this Division, unless the contrary intention appears—
‘ detachment ’ means a part of a unit (whether or not that part is itself a unit) that is detached from the headquarters of the unit in such circumstances that it is impracticable for the officer in command of the unit of which it is a part ordinarily to deal personally with charges against members of that detachment;
‘ offence ’ means—
(
a ) in the case of a person subject to military law who is on war service—an offence against the Army Act, the Defence Act or a regulation made under the Defence Act; and(
b )in the case of a person subject to military law who is not on war service—an offence against the Defence Act or a regulation made under the Defence Act;‘ superior authority ’, in relation to a commanding officer, means—
(
a ) the Military Board;(
b )the officer for the time being holding the appointment, or performing the duties, of Adjutant-General or Deputy Adjutant-General; or(
c ) an officer superior in command to the commanding officer;‘ unit ’ means a unit specified on the Order of Battle for the Military Forces.
“ 238.—(1.) For the purposes of this Division, subject to the next) succeeding sub-regulation, ‘ commanding officer ’ means—
(
a )an officer who is in command of a unit; or(
b )an officer on whom the powers and functions of a commanding officer are conferred by or under this regulation.
“ (2.) Where the officer in command of a unit holds a rank below the rank of major, the formation commander of the formation under whose command the unit is placed may appoint an officer holding a rank not below the rank of major to exercise the powers and perform the functions conferred by this Division on a commanding officer in relation to the members of that unit and, while that appointment remains in force, the officer in command of that unit is not a commanding officer for the purposes of this Division.
“ (3.) The officer in command of—
(
a ) the Royal Military College;(
b ) the Officer Cadet School;(
c ) the Australian Staff College;(
d ) the Jungle Training Centre; or(
e ) any other military instructional institution,
may appoint an officer holding a rank not below the rank of major to exercise the powers and perform the functions conferred by this Division on a commanding officer in relation to the members of the military forces who are posted to the establishment of, or attached to, the institution or are students at the institution.
“ (4.) Where a detachment is not itself a unit, unless the formation commander has appointed another officer under the next succeeding sub-regulation to exercise those powers and perform those functions, the officer in command of the detachment has, subject to sub-regulation (5.) of the next succeeding regulation, all the powers, and shall perform all the functions, conferred by this Division on a commanding officer in relation to the members of that detachment.
“ (5.) A formation commander may appoint an officer holding a rank not below the rank of major to exercise the powers and perform the functions conferred by this Division on a commanding officer in relation to—
(
a )members included in a class of members serving in or attached for duty to a unit or detachment under his command;(
b ) members of the military forces who are—(i) serving on continuous full time military service; and
(ii) posted to or performing military service with a unit under his command, being a unit the members of which are not generally serving on continuous full time military service; or
(
c ) members of a detachment under his command.
“ (6.) The Adjutant-General has all the powers and may exercise all the functions conferred on a commanding officer by this Division in relation to members of the military forces who are posted to the establishment of, or are serving at, the Headquarters of the Australian Military Forces.
“ (7.) The Adjutant-General may appoint an officer holding a rank not below the rank of major to exercise the powers and perform the functions conferred on a commanding officer by this Division in relation to—
(
a ) members of the Military Forces included in a specified class of members of the Military Forces; or(
b )a particular member of the Military Forces.
“ (8.) The officer in command of a unit may appoint an officer serving under his command to exercise, in relation to members included in a specified class of members of or attached to the unit or another unit under his command, such of the powers and perform such of the functions conferred on a commanding officer by this Division as are specified in the instrument of appointment or as the officer in command of the unit approves in a particular case.
“ (9.) An appointment for the purposes of a sub-regulation of this regulation shall be in writing under the hand of the officer making the appointment.
“ (10.) For the purposes of this Division, a power to appoint an officer to exercise the powers and perform the functions of a commanding officer in relation to certain members of the Military Forces shall be read as including—
(
a ) power to appoint an officer to exercise those powers and perform those functions in relation to all those members or in relation to such of those members as are included in a specified class of those members; and(
b )power to appoint an officer to exercise those powers and perform those functions in relation to such of those members as are included in a specified class of those members and another officer to exercise those powers and perform those functions in relation to such of those members as are included in another specified class of those members.
“ 239.—(1.) Where, under the last preceding regulation, the powers and functions of a commanding officer are conferred on an officer, being an officer who is not in command of a unit, in relation to certain members of the Military Forces, that officer shall not exercise the powers or perform the functions of a commanding officer in relation to any other members of the Military Forces.
“ (2.) Where a unit is temporarily under the command of the officer in command of another unit, being an officer holding a rank not below the rank of major, the officer in command of that first-mentioned unit may exercise such of the powers or perform such of the functions conferred by this Division on a commanding officer as the officer in command of that other unit has, under sub-regulation (8.) of the last preceding regulation, appointed him to exercise and perform, but no other such powers and functions.
“ (3.) Where—
(
a ) the Adjutant-General;(
b ) a formation commander; or(
c )an officer authorized to convene a general court martial or a district court martial,
is of the opinion that it is desirable, in the interests of justice, that a charge against a member of a unit should be dealt with by a person other than the officer in command of that unit, he may, by writing under his hand delivered to the officer in command of that unit, direct that that member be attached temporarily to another unit and, the officer in command of that first-mentioned unit then ceases to be entitled to exercise the powers and perform the functions of a commanding officer under this Division in relation to that member.
“ (4.) A direction under the last preceding sub-regulation shall state the reason for which the officer giving the order considers that it is desirable in the interests of justice that the charge be so dealt with.
“ (5.) Where the officer in command of a detachment of a unit holds a rank below the rank of major—
(
a ) the formation commander of the formation under whose command the detachment is placed; or(
b ) the officer in command of the unit,
may, by writing under his hand delivered to the officer in command of the detachment, authorize him to exercise such of the powers, and perform such of the functions, of a commanding officer as are specified in the authority or as he approves the officer in command of the detachment exercising in a particular case, but no other such powers or functions.
“ 240.—(1.) Where the exercise of the powers and the performance οf the functions of a commanding officer by the officer in charge of a detachment have been restricted under the last preceding regulation, any purported exercise of those powers or performance of those functions in contravention of that restriction is, subject to the next succeeding sub-regulation, void and of no effect.
“ (2.) Where the officer in command of a detachment is of the opinion that, in a particular case, ‘the delay that would be occasioned by having a member dealt with by another commanding officer or obtaining the approval of his formation commander or commanding officer, as the case requires, to deal with the member would be prejudicial to the discipline of the detachment, he may exercise any of the powers or perform any of the functions conferred on a commanding officer by this Division notwithstanding any restrictions imposed on the exercise of those powers or performance of those functions by virtue of sub-regulation (5.) of the last preceding sub-regulation.
“ (3.) Where the officer in command of a detachment exercises the powers or performs the functions conferred on a commanding officer by this Division in pursuance of the last preceding sub-regulation, he shall, as soon as practicable after exercising those powers or performing those functions, inform the formation commander of the manner in which and the circumstances in which he exercised the powers or performed the functions and of his reasons for doing so.
“ 241.—(1.) In the application of the Army Act and the Rules of Procedure to and in relation to the Military Forces, references in that Act or in those Rules to a commanding officer shall be read as references to a commanding officer within the meaning of this Division.
“ (2.) For the purposes of this Division—
(
a ) references in the Army Act and Rules of Procedure to the Army Act shall be road as including references to the Defence Act and the regulations in force under the Defence Act; and(
b )references in the Army Act and the Rules of Procedure to the King’s Regulations shall be read as references to the regulations in force under the Defence Act.
“ (3.) In the application of the Rules of Procedure to and in relation to the Military Forces—
(
a ) rule 5 of the Rules of Procedure shall be read as if the words “or a civil court having jurisdiction “ were inserted after the word “court-martial” in paragraph (i) of sub-rule (A) of that rule; and(
b )rule 8 of the Rules of Procedure shall be read as if the words “the Australian Military Regulations “ were substituted for the words “ rules 3 and 4 ” in sub-rule (A) of that rule.
“ 242.—(1.) In this regulation, ‘ charge report ’, in relation to an offence alleged to have been committed by a person subject to military law, means the account in writing of the offence signed by the person preferring the charge.
“ (2.) As soon as practicable after a person subject to military law is charged with an offence, a commanding officer shall consider the charge report relating to the offence and any information furnished to him in connexion with the charge report and—
(
a )if he is of the opinion that, for any reason, the charge ought not to be proceeded with—shall dismiss the charge; or(
b )if he is of the opinion that the charge ought to be proceeded with—shall—(i) if the person charged is an officer whose rank is below the rank of major, or is a warrant officer employed on continuous full time military service—take steps to have the person brought before a court martial or a civil court or dealt with summarily under the provisions of these Regulations; or
(ii) in any other case—take steps to have the person brought before a court martial or a civil court or investigate the charge in accordance with this regulation.
“ (3.) Except as provided in the next succeeding sub-regulation, a commanding officer investigating a charge shall not at any time during the investigation ask the person charged to plead to the charge or to say whether or not he admits any of the matters mentioned in the charge report.
“ (4.) A commanding officer investigating a charge against a person—
(
a )shall commence the investigation by reading the charge report relating to the charge to, or causing that charge report to be read to, the person and asking him whether the name and particulars in the charge report of the person charged are identical with his name and particulars; and(
b )shall then cause to be read to the person charged each statement in writing made in relation to the charge that the person charged consents to being read and hear, in the presence of the person charged, the evidence of any other person (not being the person charged) who is available to give evidence in relation to the charge.
“ (5.) The commanding officer shall not cause a statement in writing made by a person to be read upon the investigation of a charge unless he has informed the person charged of the name of the person who made the statement and afforded the person charged an opportunity of stating that he consents to the statement being read.
“ (6.) Except where a summary of evidence or an abstract of evidence is taken, the commanding officer shall, when he has complied with sub-regulation (4.) of this regulation, consider all the evidence that is before him in relation to the charge, that is to say, any statements read to the person charged and any evidence given orally in relation to the charge, and—
(
a ) if he is of the opinion that it is insufficient to support the charge or that, for any other reason, the charge ought not to be proceeded with—shall dismiss the charge; or(
b ) in any other case—shall inform the person charged that—(i) he is not compelled to say anything unless he wishes to do so;
(ii) he may, if he wishes, give evidence on oath but, if he does so, he may be cross-examined;
(iii) he may make a statement relating to the matters referred to in the charge and, if he does so, he will not be subjected to cross-examination;
(iv) he may, if he wishes, call witnesses to give evidence; and
(v) if he calls witnesses, the witnesses will, if the evidence of other witnesses in the investigation was given on oath, be required to give evidence on oath,
and then proceed to hear the evidence or statement (if any) of the person charged and the evidence of any witnesses called by that person.
“ (7.) When the commanding officer has heard all the evidence, he shall consider the evidence before him in connexion with the charge, together with any statement made by the person charged, and shall either dismiss the charge or, subject to the next succeeding sub-regulation—
(
a ) take steps for bringing the person charged for trial by court martial or a civil court;(
b )remand the person charged for the charge to be heard by a a superior military authority; or(
c ) deal with the charge summarily.
“ (8.) A commanding officer shall not deal summarily with a charge against a person, being a charge of a kind that he is authorized to deal with summarily, unless—
(
a )the commanding officer is satisfied beyond reasonable doubt that the person charged is guilty of the offence charged; and(
b )either the person charged has elected to have the charge dealt with summarily by the commanding officer or the commanding officer is of the opinion-—(i) that the sentence he would impose if he were to convict the person charged of the offence would be, if the person is a non-commissioned officer, a fine, or deduction from pay, not exceeding Twenty dollars, severe reprimand, reprimand or admonition or, if the person is a private soldier, a fine, or deduction from pay, not exceeding Twenty dollars, confinement to barracks, extra guards or pickets or admonition; and
(ii) that the conviction or any sentence that he might impose, or the conviction and any sentence that he might impose, would not involve any forfeiture of, or deduction from, pay exceeding Twenty dollars.
“ (9.) Where a commanding officer decides not to dismiss a charge, he may, before deciding how to deal with the person charged, inform himself of, and have regard to, the conduct sheet of the person charged.
“ (10.) Where a commanding officer deals with a charge summarily in accordance with these Regulations, the commanding officer shall convict the person charged of the offence charged and impose a sentence on him that he is authorized to impose by virtue of regulation 256 of these Regulations.
“ (11.) Subject to regulations 245 and 247 of these Regulations, a commanding officer shall hear and determine all charges pending against a soldier at the one time and shall impose one sentence only in respect of those charges of which the commanding officer convicts him.
“ (12.) Where a commanding officer imposes one sentence in respect of two or more offences, the sentence shall be a sentence that the commanding officer is authorized to impose in respect of any one of those offences.
“ 243.—(1.) Where a commanding officer investigating a charge adjourns the investigation for the taking of a summary of evidence or an abstract of evidence, the summary or abstract shall, if taken by an officer other than the commanding officer, be furnished to a commanding officer as soon as practicable after it has been taken.
“ (2.) As soon as practicable after a commanding officer has taken a summary of evidence or abstract of evidence or has received a summary of evidence or abstract of evidence taken by another officer, the commanding officer shall consider the evidence contained in the summary or abstract and—
(
a )if he is of the opinion that there is insufficient evidence to support the charge or that, for any other reason, the charge ought not to be proceeded with—dismiss the charge;(
b )take steps to have the person charged tried by court martial or a civil court;(
c )take steps to have the charge heard by a superior military authority; or(
d )complete the investigation of the charge in accordance with the succeeding provisions of this regulation.
“ (3.) A commanding officer shall complete the investigation of a charge—
(
a )if the person charged consents in writing to the statements contained in the summary of evidence or the abstract of evidence being treated as evidence before the commanding officer—(i) in a case where the person charged made a statement, gave evidence on oath or called witnesses in the course of the taking of the summary or abstract— in the manner provided by the next succeeding sub-regulation; or
(ii) in any other case—by informing the person charged as required by paragraph (
b )of sub-regulation (6.) of the last preceding sub-regulation and then proceeding in accordance with that paragraph and sub-regulations (7.) to (11.), inclusive, of that regulation; or(
b ) if the person charged does not so consent—by hearing the evidence of the witnesses and then, notwithstanding that a summary of evidence or abstract of evidence has been taken, proceeding in accordance with sub-regulations (6.) to (11.), inclusive, of that regulation.
“ (4.) The manner in which a commanding officer shall complete the
investigation of a charge when required to do so as provided in subparagraph
(i) of paragraph (
(
a )first, the commanding officer shall inform the person charged as required by paragraph (b )of sub-regulation (6.) of the last preceding regulation;
(
b )secondly, the commanding officer shall ask the person charged whether, at that stage of the investigation, he wishes to make any statement, give any evidence on oath or call any witnesses;(
c ) thirdly, the commanding officer shall proceed to hear any statement or evidence that the person wishes to make or give, and the evidence of any witnesses that he calls, at that stage of the investigation; and(
d )fourthly, the commanding officer shall complete the investigation in the manner provided by sub-regulations (7.) to (11.). inclusive, of the last preceding regulation.
“ 243a. A commanding officer investigating a charge may amend the charge report at any time during the investigation for the purpose of—
(
a ) correcting the name and description of the person charged;(
b )ensuring that the wording of the charge is in accordance with the wording of the section of the act or of the regulation creating the offence with which the person is charged;(
c ) adding a further charge that, as a result of the evidence given in the course of the investigation, the commanding officer considers that the person should be charged with; or(
d )substituting for a charge specified in the charge report another charge that, as a result of the evidence given in the course of the investigation, the commanding officer considers that the person should be charged with in place of the charge so specified.
“ 243b.—(1.) A commanding officer investigating a charge may, at any time, adjourn the investigation to a date and place specified by him—
(
a )if he considers that a summary of evidence or an abstract of evidence should be taken on the ground that—(i) the charge can be more conveniently investigated if the evidence is taken down in writing;
(ii) a person whose evidence is material cannot be compelled to attend as a witness before the commanding officer;
(iii) the person charged should be tried by a court martial or by a civilian court; or
(iv) it is, for some other reason, in the interests of justice to do so;
(
b )for the purpose of permitting a witness not then available to give evidence to be called to give evidence; or(
c ) if, for any other reason, he considers that it is in the interests of justice to do so.
“ (2.) Where a commanding officer adjourns the hearing of an investigation, he shall remand the person charged to appear on the date and at the place so specified.
“ 243c.—(1.) Where the commanding officer directs, or the person against whom a charge is being investigated requests, that the evidence of the witnesses be taken on oath, a witness shall, before giving evidence, make before the person investigating the charge a like oath or solemn declaration as a witness before a court martial is required to make.
“ (2.) A person against whom a charge is being investigated may cross-examine a witness who gives evidence upon the investigation.
“ (3.) Where, in the course of an investigation of a charge, the person charged gives evidence on oath, or calls his wife to give evidence, the provisions of rule 80 of the Rules of Procedure apply as if the investigation were the hearing of the charge by a court martial.
“ 243d.—(1.) Where a commanding officer investigating a charge adjourns the investigation for the taking of a summary of evidence or an abstract of evidence, the commanding officer shall himself proceed to take a summary of evidence or abstract of evidence or appoint another officer to take a summary of evidence or abstract of evidence.
“ (2.) A summary of evidence or an abstract of evidence shall be taken in the manner provided by the Rules of Procedure.
“ (3.) Where it is, for any reason, impracticable—
(
a )for the officer appointed to take a summary of evidence or abstract of evidence to commence the taking of the summary or extract; or(
b )for the officer taking a summary of evidence or abstract of evidence to continue the taking of the summary or abstract, a commanding officer may appoint another officer to take, or continue the taking of, the summary of evidence or abstract of evidence in place of that officer.
“ 243e.—(1.) Where a member of the military forces is not employed on continuous full time military service and is not rendering military service for a period exceeding 48 hours, a charge against the member may be investigated in the absence of the member as provided by this regulation.
“ (2.) Where a charge is investigated in the absence of the member charged, regulations 242 and 243 of these Regulations do not apply to or in relation to the investigation except to the extent specified in this regulation.
“ (3.) Where a charge is made against a member referred to in sub-regulation (1.) of this regulation, the commanding officer shall, by notice under his hand served on the member in like manner as a notice under regulation 193 b of these Regulations may be served on a member by virtue of regulation 193d of these Regulations, inform him that he has been charged with an offence and furnish him with particulars of—
(
a ) the charge against him;(
b )the time and place appointed for investigating the charge; and(
c ) the names of the witnesses whom it is proposed to call to give evidence upon the investigation of the charge.
“ (4.) Where the member attends at the time and place appointed for the investigation of the charge against him, the charge shall be investigated as provided by regulations 242 and 243 of these Regulations.
“ (5.) Where the member does not attend at the time and place appointed for investigating the charge, the charge shall be investigated as provided by sub-regulations (6.) to (9.), inclusive, of this regulation.
“ (6.) The commanding officer shall hear the evidence of each of the witnesses available to give evidence concerning the charge.
“ (7.) When the commanding officer has heard all the evidence concerning the charge, or, if the investigation was adjourned for the taking of a summary of evidence or abstract of evidence, where he has taken the summary of evidence or abstract of evidence or received the summary of evidence or abstract of evidence if it was taken by another officer, the commanding officer shall consider the evidence and—
(
a ) dismiss the charge;(
b )take steps to have the person tried by court martial or a civilian court;(
c ) refer the charge for investigation by a superior miltary authority; or(
d )if the charge is a charge of a kind that he is authorized to deal with summarily and he is satisfied beyond reasonable doubt that the person charged is guilty of the offence charged— convict him of the offence.
“ (8.) Where the commanding officer deals with a charge summarily, he may impose a sentence on the person charged in accordance with regulation 256 of these Regulations, including a sentence that, if the charge had been dealt with in the presence of the person charged, he could only have imposed if that person had elected to have the charge dealt with summarily.
“ (9.) A sentence imposed under the last preceding sub-regulation is of no force or effect unless it is confirmed under the next succeeding regulation.
“ (10.) Where the charge is investigated under this regulation in. the absence of the person charged, the commanding officer shall take, or cause to be taken, a summary or abstract of the evidence given in connexion with the charge.
“ (11.) Regulations 243a and 243 b of these Regulations apply to and in relation to the investigation of a charge as provided by sub-regulations (6.) to (9.), inclusive, of this regulation.
“ (12.) Where the investigation of a charge against a member referred to in sub-regulation (1.) of this regulation is commenced in the presence of that member but is then adjourned and the member does not attend at the time and place fixed for the further investigation of the charge, the hearing of the charge may be completed in accordance with the provisions of this regulation as if it had been commenced in the absence of the member charged.
“ (13.) To the extent to which they are inconsistent with the provisions of this regulation, rules 4 and 5 of the Rules of Procedure do not apply to or in relation to the investigation of a charge against a member referred to in sub-regulation (1.) of this regulation that is conducted as provided by this regulation.
“ 243f.—(1.) Where the commanding officer convicts the person in his absence under the last preceding regulation, he shall, as soon as practicable after convicting the person, forward to his formation commander a report setting out particulars of the conviction and sentence together with a copy of the evidence given upon the investigation of the charge.
“ (2.) Upon receipt of a report under the last preceding sub-regulation, the formation commander shall review the evidence, conviction and sentence and either confirm the conviction or quash the conviction and sentence.
“ (3.) Where the. formation commander confirms a conviction, he shall review the sentence and—
(
a )if the sentence is not a sentence that could have been imposed under these Regulations by the commanding officer in respect of the offence—shall quash the sentence and impose a sentence that the commanding officer could have imposed in respect of the offence;(
b )if the sentence is a sentence that could have been imposed by the commanding officer in respect of the offence but the formation commander considers that the sentence is too severe—shall quash the sentence and substitute for it any less severe sentence that the commanding officer could have imposed in respect of the offence; or(
c ) in any other case—confirm the sentence.
“ (4.) Where the conviction is confirmed under this regulation, the conviction and sentence shall be promulgated to the person charged in the like manner as the conviction and sentence of a court martial is promulgated.
“ (5.) Where a sentence imposed under sub-regulation (8.) of the last preceding regulation is confirmed or a formation commander substitutes for a sentence so imposed a less severe sentence, the sentence or the sentence so substituted, as the case may be, has effect as if it had been imposed on the day on which it is promulgated to the person charged.
“ 243g.—(1.) Where a person who has ceased to be a member of the military forces is charged with an offence in respect of which he is liable to be tried by court martial, the charge shall be investigated as provided by this regulation and not otherwise.
“ (2.) The charge shall be investigated by an officer, holding a rank not below the rank of major, appointed by the Adjutant-General or a formation commander to investigate the charge.
“ (3.) Where the person has been arrested and is in custody, the charge shall be investigated or the investigation of the charge shall be completed, as the case requires, subject to sub-regulations (5.) and (6.) of this regulation as if it were a charge against a member being investigated by a commanding officer under regulation 242 of these Regulations.
“ (4.) Where the person charged is not in custody, the charge may be investigated in the absence of the person and, for that purpose, regulation 243e of these Regulations applies, subject to the next two succeeding sub-regulations, as if the person were a member of the military forces not employed on continuous full time military service and not rendering military service for a period exceeding 48 hours.
“ (5.) When the officer investigating a charge under this regulation has completed the investigation, he shall—
(
a )if he is of the opinion that, for any reason, the charge ought not be proceeded with—dismiss the charge; or(
b ) in any other case—take steps for bringing the person charged for trial by court martial.
“ (6.) The officer investigating a charge under this regulation may, at any stage of the investigation, cause the evidence relating to the offence to be taken down in writing.”.
“ 256.—(1.) Subject to the next succeeding sub-regulation, where the commanding officer (not being an officer who is exercising the powers and performing the functions conferred on a commanding officer by virtue of an appointment under sub-regulation (8.) of regulation 238 of these Regulations) who investigates a charge against a soldier not on war service summarily convicts the soldier, he may, subject to any restrictions imposed on his exercise of the powers and performance of the functions of a commanding officer under these Regulations, impose on the soldier a sentence or, subject to sub-regulations (3.) and (4.) of this regulation, two or more of the sentences specified in the second column of the following table in relation to the class of soldiers specified in the first column of that table in which the soldier is included:—
Class of soldier | Sentence | Restrictions |
Warrant officers.......... | reduction in rank......... | 1. Not to be imposed on a warrant officer employed on continuous full time military service |
2. Not to be imposed unless the evidence has been taken down in writing | ||
3. Not to be imposed unless the warrant officer has elected to be dealt with summarily | ||
Non-commissioned officers | dismissal..................... | 1. Not to be imposed on a non-commissioned officer employed on continuous full time military service, serving under Part IV. of the Act or serving under the National Service Act |
2. Not to be imposed unless the evidence has been taken down in writing | ||
3. Not to be imposed unless the non-commissioned officer has elected to be dealt with summarily | ||
reduction in rank......... | 1. Not to be imposed on a non-commissioned officer employed on continuous full time military service | |
2. Not to be imposed unless the evidence has been taken down in writing | ||
3. Not to be imposed unless the non-commissioned officer has elected to be dealt with summarily | ||
fine not exceeding 40 dollars | Fine exceeding 20 dollars not to be imposed unless the non-commissioned officer has elected to be dealt with summarily | |
deduction from pay not exceeding 40 dollars | 1. A non-commissioned officer may be punished for an offence— | |
| ||
|
Class of soldier | Sentence | Restrictions |
Non-commissioned
Officers— | but shall not be punished by a deduction from pay in any other case | |
2. A non-commissioned officer shall not be sentenced to a deduction from pay exceeding 20 dollars unless he has elected to be dealt with summarily | ||
severe reprimand reprimand admonition | ||
| Private soldiers............ | dismissal | 1. Not to be imposed on a private soldier employed on continuous full time military service, serving under Part IV. of the Act or serving under the National Service Act |
2. Not to be imposed unless the evidence has been taken down in writing | ||
3. Not to be imposed unless the private soldier has elected to be dealt with summarily | ||
detention for a period not exceeding 7 days | 1. Not to be imposed unless the private soldier has elected to be dealt with summarily | |
2. Not to be imposed unless the private soldier is employed on continuous full time military service |
fine not exceeding 40 dollars | Fine exceeding 20 dollars not to be imposed unless the private soldier has elected to be dealt with summarily |
deduction from pay not exceeding 40 dollars | 1. A private soldier may be punished for an offence— |
| |
| |
but shall not be punished by a deduction from pay in any other case | |
2. A private soldier shall not be sentenced to a deduction from pay exceeding 20 dollars unless he has elected to be dealt with summarily | |
confinement to barracks for a period not exceeding 14 days extra guards or pickets | Not to be imposed unless the private soldier is employed on continuous full time military service |
Not to be imposed for an offence other than an offence committed while a member of a guard or picket or an offence related to the performance of duty as such a member | |
admonition |
“ (2.) The imposition on a soldier included in a class of soldiers specified in the first column of the table in the last preceding sub-regulation of a sentence specified in the second column of that table in relation to that class of soldiers is subject to the restrictions (if any) specified in the third column of that table in relation to that sentence.
“ (3.) A commanding officer may impose on a non-commissioned officer, in respect of an offence, both a fine and a deduction from pay,
being a deduction not exceeding Ten dollars, and may also impose on a non-commissioned officer, in addition to either or both of those sentences, one of the following sentences, that is to say, severe reprimand, reprimand or admonition, but shall not otherwise impose on a non-commissioned officer in respect of an offence two or more of the sentences specified in the table in sub-regulation (1.) of this regulation.
“ (4.) Two or more of the sentences specified in the second column of the table in sub-regulation (1.) of this regulation in relation to a class of soldiers shall not be imposed by a commanding officer on a private soldier in respect of an offence unless they are two or more of the following sentences:—
(
a ) detention;(
b ) fine;(
c ) deduction from pay, being a deduction not exceeding Ten dollars;(
d ) confinement to barracks;(
e ) extra guards or pickets; or(
f ) admonition.
“ 256a. The Army Act, in its application to members of the Military Forces on war service, is modified by omitting section 46 and inserting in its stead the following section:—
‘ 46.—(1.) Where a soldier on war service is charged with an offence, a commanding officer shall investigate the charge in like manner as he would investigate a like charge against a soldier not on war service ‘and, for that purpose, he has all the powers conferred on a commanding officer by the Defence Act and the Australian Military Regulations in relation to the investigation of charges against soldiers not on war service.
‘ (2.) Subject to the next succeeding sub-section, where the commanding officer (not being an officer who is exercising the powers and performing the functions conferred on a commanding officer by virtue of an appointment under sub-regulation (8.) of regulation 238 of the Australian Military Regulations) who investigates a charge against a soldier on war service summarily convicts the soldier, he may, subject to any restrictions imposed on his exercise of the powers and performance of the functions of a commanding officer under those Regulations, impose on the soldier a sentence or, subject to sub-sections (4.), (5.) and (6.) of this section, two or more of the sentences specified in the second column of the following table in relation to the class of soldier specified in the first column of that table in which the soldier is included:—
Class of soldiers | Sentence | Restrictions |
| reversion from that rank to the rank that he would hold if he were not holding a rank temporarily reversion from that rank to a rank higher than the rank that he would hold if he were not holding a rank temporarily | Not to be imposed unless the non-commissioned officer elects to be dealt with summarily |
1. Not to be imposed unless the non-commissioned officer elects to be dealt with summarily | ||
2.Not to be imposed unless there is an appointment, the rank for which is that lower rank, to which the non-commissioned officer could be appointed |
Class of soldiers | Sentence | Restrictions |
| fine not exceeding 40 dollars | Fine exceeding 20 dollars not to be imposed unless the non-commissioned officer elects to be dealt with summarily |
deduction from pay not exceeding 40 dollars | 1. A non-commissioned officer may be punished for an offence— | |
| ||
| ||
but shall not be punished by a deduction from pay in any other case | ||
2. A non-commissioned officer shall not be sentenced to a deduction from pay exceeding 20 dollars unless he has elected to be dealt with summarily | ||
severe reprimand reprimand admonition | ||
| reduction in rank | Not to be imposed unless the non-commissioned officer elects to be dealt with summarily |
fine not exceeding 40 dollars | Fine exceeding 20 dollars not to be imposed unless the non-commissioned officer elects to be dealt with summarily | |
deduction from pay not exceeding 40 dollars | 1. A non-commissioned officer may be punished for an offence— | |
| ||
| ||
but shall not be punished by a deduction from pay in any other case | ||
2. A non-commissioned officer shall not be sentenced to a deduction from pay exceeding 20 dollars unless he has elected to be dealt with summarily | ||
severe reprimand reprimand admonition |
Class of soldiers | Sentence | Restrictions |
| fine not exceeding 40 dollars | Fine exceeding 20 dollars not to be imposed unless the non-commissioned officer elects to be dealt with summarily |
deduction from pay not exceeding 40 dollars | 1. A non-commissioned officer may be punished for an offence— | |
| ||
| ||
but shall not be punished by a deduction from pay in any other case | ||
2. A non-commissioned officer shall not be sentenced to a deduction from pay exceeding 20 dollars unless he has elected to be dealt with summarily | ||
severe reprimand reprimand admonition | ||
Private soldier………. | detention not exceeding 28 days | Not to be awarded unless soldier elects to be dealt with summarily |
field punishment not exceeding 28 days | 1. Not to be awarded unless the private soldier is on active service | |
2. Not to be awarded unless soldier elects to be dealt with summarily | ||
forfeiture of pay for a period not exceeding 28 days commencing on the day of the award | 1. Not to be awarded unless the private soldier is on active service | |
2. Forfeiture amounting in the aggregate to more than 20 dollars not to be awarded unless the soldier elects to be dealt with summarily | ||
fine not exceeding 40 dollars | Fine in excess of 20 dollars not to be awarded unless the soldier elects to be dealt with summarily | |
deduction from pay not exceeding 40 dollars | 1. A private soldier may be punished for an offence— | |
| ||
| ||
but shall not be punished by a deduction from pay in any other case |
Class of soldiers | Sentence | Restrictions |
Private soldier— | 2. A private soldier shall not be sentenced to a deduction from pay exceeding 20 dollars unless he elects to be dealt with summarily | |
confinement to barracks not exceeding 14 days | ||
extra guards or pickets | Not to be imposed for an offence other than an offence committed while a member of a guard or picket or related to the performance of duty as such a member | |
admonition |
‘ (3.) The imposition on a soldier included in a class of soldiers specified in the first column of the table in the last preceding sub-section of a sentence specified in the second column of that table in relation to that class of soldiers is subject to the restrictions (if any) specified in the third column of that table in relation to that sentence.
‘ (4.) A commanding officer may impose on a non-commissioned officer, in respect of an offence, both a fine and a deduction from pay, being a deduction not exceeding Ten dollars, and may also impose on a non-commissioned officer, in addition to either or both of those sentences, one of the following sentences, that is to say, severe reprimand, reprimand or admonition, but shall not otherwise impose on a non-commissioned officer in respect of an offence two or more of the sentences specified in the table in sub-section (2.) of this section.
‘ (5.) Subject to the next two succeeding sub-sections, two or more of the sentences specified in the second column of the table in sub-section (2.) of this section in relation to a private soldier shall not be imposed by a commanding officer on a private soldier in respect of an offence unless they are two or more of the following sentences:—
(
a ) detention, not exceeding 7 days;(
b ) forfeiture of pay;(
c ) fine;(
d ) deduction from pay not exceeding Ten dollars;(
e ) confinement to barracks not exceeding 14 days;(
f ) extra guards or pickets; or(
g ) admonition.
‘ (6.) Where a sentence of detention for a period exceeding 7 days is imposed in respect of an offence, one or both of the following punishments, but no other punishment, may also be imposed in respect of the offence:—
(
a ) a fine not exceeding Forty dollars; and(
b )deduction from pay not exceeding Ten dollars.
‘ (7.) Where a sentence of field punishment is imposed on a private soldier in respect of an offence, any one or more of the following sentences, but no other sentence, may also be imposed on the soldier in respect of the offence:—
(
a ) a fine not exceeding Forty dollars;(
b )deduction from pay not exceeding Ten dollars; and(
c )if the sentence of field punishment is not to be served in custody —forfeiture of pay for a period not exceeding 28 days commencing on the day of the award.
‘ (8.) Regulation 260 of the Australian Military Regulations applies to and in relation to the imposition of a sentence under this section by a commanding officer who is exercising the powers and performing the functions of a commanding officer by virtue of an appointment under sub-regulation (8.) of regulation 238 of those Regulations as if the sentence were imposed under the Australian Military Regulations.
‘ (9.) Regulations 256b, 264, 265 and 265a of the Australian Military Regulations apply to and in relation to a sentence imposed on a soldier on war service by a commanding officer under this section as if it were a sentence imposed on a soldier not on war service under the Australian Military Regulations.
‘ (10.) In this section, a
reference to a commanding officer shall be read as a reference to an officer
who is a commanding officer for the purposes of
“ 256b.—(1.) Where a commanding officer sentences a warrant officer or non-commissioned officer to reduction in rank or a non-commissioned officer or private soldier to be dismissed—
(
a ) the sentence has no force or effect unless it is confirmed in accordance with this regulation; and(
b )the commanding officer shall, as soon as practicable after the sentence is imposed, forward to his formation commander a report setting out particulars of the offence and the sentence together with a copy of the evidence given at the hearing of the charge.
“ (2.) Where a formation commander receives a report and copy of evidence in accordance with the last preceding sub-regulation, the formation commander shall review the evidence, conviction and sentence and—
(
a )if he considers that the charge ought not to have been proceeded with or that, for any other reason, the conviction ought not to be confirmed—shall quash the conviction and sentence; or(
b ) in any other case—shall confirm the conviction.
“ (3.) Where the formation commander confirms the conviction, be shall review the sentence and—
(
a )if the sentence is not a sentence that could have been imposed under these Regulations by the commanding officer in respect of the offence—shall quash the sentence and impose a sentence that the commanding officer could have imposed in respect of the offence;(
b )if the sentence is a sentence that could have been imposed by the commanding officer in respect of the offence but the formation commander considers that the sentence is too severe—shall quash the sentence and substitute for it any less severe sentence that the commanding officer could have imposed in respect of the offence; or(
c ) in any other case—shall confirm the sentence.
“ (4.) Where a formation commander has reviewed a sentence imposed by the commanding officer, the sentence shall be promulgated to the member concerned in the like manner as the sentence of a court martial is promulgated.
“ (5.) Where a sentence referred to in sub-regulation (1.) of this regulation is confirmed or a formation commander substitutes for such a sentence a less severe sentence, the sentence or the sentence so substituted, as the case may be, has effect as if it had been imposed on the day on which it is promulgated to the member concerned.”.
“ (3.) The term of confinement to barracks awarded by a commanding officer begins on the day of the award.”.
“ 260.—(1.) Where a commanding officer appoints, under sub-regulation (8.) of regulation 238 of these Regulations, an officer to exercise the powers and perform the functions of a commanding officer, the officer so appointed shall not impose, in respect of an offence investigated by him—
(
a )in the case of an offence committed by a non-commissioned officer—a sentence other than one of the following sentences:—(i) reprimand; or
(ii) admonition; or
(
b )in the case of an offence committed by a private soldier—a sentence other than one or more of the following sentences:—(i) a fine not exceeding Ten dollars;
(ii) confinement to barracks not exceeding 7 days;
(iii) extra guards or pickets; or
(iv) admonition.
“ (2.) A private soldier shall not be sentenced to be confined to barracks under the last preceding sub-regulation unless he is employed on continuous full time military service.
“ (3.) A sentence of extra guards or pickets shall not be imposed on a private soldier except in respect of an offence committed by the soldier while a member of a guard or picket or an offence related to the performance of duty as such a member.
“ (4.) Where an officer referred to in sub-regulation (1.) of this regulation imposes a sentence, the officer shall, as soon as practicable after the sentence is imposed, forward to his commanding officer a report setting out particulars of the offence and the sentence.
“ (5.) A commanding officer who receives a report referred to in the last preceding sub-regulation in relation to an offence shall review the conviction and sentence and, upon that review, may—
(
a ) quash the conviction and sentence and order that the conviction and sentence be removed from the records of the soldier concerned;(
b )revoke the whole or part of the sentence; or(
c ) substitute for the sentence a sentence that is less severe than the sentence imposed in respect of the offence.”.
“ 263a. A sentence of dismissal takes effect on the day on which the sentence is promulgated.
“ 264.—(1.) Subject to this regulation, a sentence imposed by a commanding officer that is not subject to confirmation shall not be varied after the member on whom the sentence is imposed is removed from the presence of the commanding officer.
“ (2.) Where a commanding officer has convicted a soldier and imposed on the soldier a sentence that is not subject to confirmation, the commanding officer may, at any time, review the conviction and sentence and—
(
a )quash the conviction and sentence and order that the conviction and sentence be removed from the records of the soldier;(
b )revoke the whole or a part of the sentence; or(
c ) substitute for the sentence a sentence that is less severe than the sentence imposed by him.
“ 265.—(1.) Where the commanding officer who investigated a charge against a soldier convicts the soldier and imposes a sentence on him—
(
a )if the conviction is not subject to confirmation—a superior authority to the commanding officer; or(
b ) if the conviction has been confirmed by a formation commander —a superior authority to the formation commander,
may, at any time, review the conviction and sentence and, upon such a review, shall—
(
c ) if the superior authority considers that the charge ought not to have been proceeded with or that, for any other reason, the conviction ought to be quashed—quash the conviction and sentence; or(
d ) in any other case—confirm the conviction.
“ (2.) Where a superior authority quashes a conviction, the conviction and sentence shall be removed from the records of the soldier.
“ (3.) Where a commanding officer has convicted a soldier on two or more charges and imposed one sentence in respect of all those charges and the conviction on one or more of those charges is quashed, the superior authority shall review the sentence and may either confirm the sentence or quash the sentence and impose such other less severe sentence as the commanding officer might have imposed in respect of the charges.
“ (4.) Where a superior authority is of the opinion that a sentence imposed by the commanding officer is not a sentence that the commanding officer was authorized to impose or that the sentence is too severe, the superior authority may quash the sentence and impose such less severe sentence as the commanding officer might have imposed in respect of the offence.
“ 265a.—(1.) For the purposes of this Division, a sentence specified in the following list of sentences shall, in relation to a member not on war service, be taken to be less severe than any sentence that precedes it in that list:—
Dismissal
Reduction in rank
Detention
Fine
Deduction from pay
Confinement to barracks
Severe reprimand
Reprimand
Extra guards or pickets
Admonition.
“ (2.) For the purposes of this Division, a sentence specified in the following list of sentences shall, in relation to a member on war service, be taken to be less severe than any sentence that precedes it in that list:—
Reversion of non-commissioned officer from a rank held temporarily to the rank that he would hold if he were not holding a rank temporarily
Reversion of a non-commissioned officer from a rank held temporarily to a rank higher than the rank that he would hold if he were not holding a rank temporarily
Reduction in rank
Detention.
Field punishment
Forfeiture of pay
Fine
Deduction from pay
Confinement to barracks
Severe reprimand
Reprimand
Extra guards or pickets
Admonition
“ (3.) For the purposes of this Division—
(
a )a sentence of field punishment shall not be taken to be less severe than a sentence of detention unless the period of field punishment is less than the period of detention;(
b )a sentence of fine or deduction from pay shall not be taken to be less severe than a sentence of forfeiture of pay unless the amount of the fine or of the deduction is less than the amount of the forfeiture; and(
c ) a sentence of deduction from pay shall not be taken to be less severe than a sentence of a fine unless the amount to be deducted is less than the amount of the fine.”.
their stead the
words “ if no sentence or if one or more of the sentences specified in
sub-paragraph (i) of paragraph (
“ (
ba ) Rule of Procedure 20 shall be read as if—(i) the words “ and subject to paragraph (C) of this rule ” were omitted from paragraph (A); and
(ii) paragraphs (B) and (C) were omitted; ”.
“ Division 19a.—Field Punishment.
“ 370a.—(1.) Where a person subject to military law is to serve a sentence of field punishment imposed on him by a court martial or a commanding officer under the Army Act—
(
a ) the person shall perform such duties or drills, additional to the duties or drills that he would be required to perform if he were not serving a sentence of field punishment, as a commanding officer directs; and(
b )the person shall suffer loss of such privileges as a commanding officer directs.
“ (2.) Where a sentence of field punishment is served in custody, the Australian Military (Places of Detention) Regulations apply to and in relation to the serving of the sentence as if the person were serving a sentence of detention.
“ (3.) Where a sentence of field punishment is served by a person otherwise than in custody, regulations 30, 31, 33 and 34 of the Australian Military (Places of Detention) Regulations apply to and in relation to the placing of the person in restraint in like manner as they apply to a person serving a sentence of detention, and the person serving the sentence of field punishment shall not be placed in restraint except as provided in those regulations.”.
By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra
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