Defence Force Discipline Amendment Rules 2006 (No. 1) (Cth)
Defence Force Discipline Amendment Rules 2006 (No. 1)
Defence Force Discipline Act 1982
I, LEONARD WILLIAM ROBERTS‑SMITH, Judge Advocate General, make these Rules under section 149 of the Defence Force Discipline Act 1982.
Dated 2 June 2006
L. W. ROBERTS-SMITH
Judge Advocate General
Name of Rules
These Rules are the Defence Force Discipline Amendment Rules 2006 (No. 1).
Commencement
These Rules commence on 12 June 2006.
Amendment of Defence Force Discipline Rules 1985
Schedule 1 amends the Defence Force Discipline Rules 1985.
Schedule 1 Amendments
(rule 3)
[1] Subrule 3 (2)
omit
a convening authority under paragraph
insert
the Director of Military Prosecutions under section 105A, paragraphs
[2] Rule 11
substitute
Directions by Registrar of Military Justice regarding charges
(1) If the Registrar of Military Justice convenes a court martial or refers a charge or charges to a Defence Force magistrate (otherwise than under subsection 103 (6) or (7) of the Act), the Registrar must, subject to these Rules, make directions under subrules (2) and (3) as instructed by the Director of Military Prosecutions.
(2) If there is more than 1 charge the Registrar must direct whether some or all of the charges are to be included in the same charge sheet or separate charge sheets.
(3) If there is more than 1 accused person the Registrar must direct whether some or all of them are to be tried jointly or separately.
[3] Rule 14
omit
The appropriate authority shall
insert
(1) The relevant authority must
[4] Rule 14
insert
(2) In this rule, relevant authority means:
(a) the Chief of the Defence Force; or
(b) a delegate of the Chief of the Defence Force of at least the rank of Colonel (or an equivalent rank).
[5] Rule 21
omit
A person
insert
(1) A person
[6] Rule 21
insert
(2) At the request of the appropriate authority the functions in subrule (1) are to be carried out by:
(a) the Chief of the Defence Force; or
(b) a delegate of the Chief of the Defence Force of at least the rank of Colonel (or an equivalent rank); or
(c) the Director of Military Prosecutions.
[7] Subrule 23 (4)
substitute
(4) If, at any time after the charge is read, the summary authority requires further information before the authority decides:
(a) if the charge is within the authority’s jurisdiction to try — whether the authority should try the charge; or
(b) if the charge is not within the authority’s jurisdiction to try and the authority is of the opinion that there is insufficient evidence to support the charge — to direct that the charge not be further proceeded with; or
(c) in any case — whether the authority should refer the charge to another summary authority or to the Director of Military Prosecutions, as the case may be;
then:
(d) the authority must call upon the prosecutor to outline the case for the prosecution and the prosecutor must state briefly:
(i) the elements of the offence charged that, on a trial of the charge, would have to be proved in order to obtain a conviction; and
(ii) the alleged facts that, on a trial of the charge, the prosecutor would rely on to support the charge; and
(iii) the nature of the evidence that, on a trial of the charge, the prosecutor would propose to adduce to prove the alleged facts; and
(e) if, after paragraph (d) is complied with, the authority considers that it should hear evidence in support of the charge before it makes a decision, the authority may hear as much of that evidence as it thinks fit.
[8] Part VI, heading
substitute
Part VI Registrar of Military Justice and Director of Military Prosecutions
[9] After rule 28
insert
28A Order referring charge or case to superior summary authority or commanding officer
When the Director of Military Prosecutions refers a charge or a case to a superior summary authority or a commanding officer, the Director must, in the order referring the charge or the case, specify the superior summary authority or the commanding officer to whom the charge or case is referred.
[10] Rule 29
omit each mention of
a convening authority
insert
the Registrar of Military Justice
[11] Rule 29
omit each mention of
the authority shall
insert
the Registrar must
[12] Subparagraph 29 (1) (b) (iii)
after
proceedings
insert
(if held)
[13] Subparagraph 29 (2) (b) (ii)
after
proceedings
insert
(if held)
[14] Rule 30
substitute
Inspection of exhibits before trial
(1) An accused person who has been sent a list of exhibits in accordance with rule 29 must, on application by that person to the Registrar of Military Justice, be permitted by the custodian of the exhibit to inspect and to copy any exhibit.
(2) The custodian of the exhibit must ensure that proper precautions are taken for the safety of the exhibit during an inspection under subrule (1).
[15] Subrule 55 (2)
substitute
(2) If the proceedings of a hearing before a summary authority are recorded by means of shorthand or sound recording apparatus and the proceedings result in:
(a) a referral to the Director of Military Prosecutions; or
(b) a conviction on 1 or more charges on the charge sheet, including alternative charges;
the recorder must prepare, or cause to be prepared, a transcript in writing which must be authenticated by the person who made the transcript.
[16] Schedule 1, Part 1, items 69 and 70
omit
[17] Further amendments
| Provision | omit | insert |
| Rule 28 | a convening authority | the Registrar of Military Justice |
| Rule 28 | authority shall, | Registrar must, |
| Schedule 1, Part 1, item 51, column 3 | an inferior | a subordinate |
| Schedule 1, Part 1, item 56, column 2 | subsection 36A (1) | section 36A |
| Schedule 1, Part 1, item 57, column 2 | subsection 36A (2) | section 36B |
| Schedule 1, Part 1, item 93, column 2 | subparagraph 53 (1) (b) (I) | subparagraph 53 (1) (b) (i) |
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