Military Justice (Interim Measures) Act (No. 1) 2009 (Cth)
This is a compilation of the
This compilation was prepared on 18 August 2015.
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
This Act may be cited as
Military Justice (Interim Measures) Act (No. 1) 2009 .
This Act commences on the day this Act receives the Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1
Subsection 3(1) (definition of appropriate authority ) Repeal the definition, substitute:
appropriate authority :
(a) in relation to proceedings before a court martial, means:
(i) the Registrar; or
(ii) the President of the court martial; and
(b) in relation to proceedings before a Defence Force magistrate, means:
(i) the Registrar; or
(ii) the Defence Force magistrate; or
(c) in relation to proceedings before a summary authority, means the summary authority.
2
Subsection 3(1) (definition of Australian Military Court ) Repeal the definition.
3
Subsection 3(1) (definition of Australian Military Court Rules ) Repeal the definition.
Insert:
Chief Judge Advocate means the Chief Judge Advocate appointed under section 188A.
5
Subsection 3(1) (definition of Chief Military Judge ) Repeal the definition.
Repeal the definition.
Repeal the definition.
Repeal the definition.
9
Subsection 3(1) (definition of competent reviewing authority ) Omit “subsection 150(2)”, substitute “section 150A”.
10
Subsection 3(1) (definition of convicted person ) After “tribunal”, insert “, a reviewing authority”.
Insert:
Court Martial and Defence Force Magistrate Rules means the rules made under section 149A.
Insert:
Defence Force magistrate means a Defence Force magistrate appointed under section 127.
Insert:
judge advocate , in relation to a court martial, means the judge advocate of the court martial.
Insert:
judge advocates’ panel means the panel referred to in subsection 196(1).
Repeal the definition.
Repeal the definition.
Insert:
prescribed acquittal means an acquittal of a service offence by a court martial or a Defence Force magistrate on the ground of unsoundness of mind.
Insert:
President , in relation to a court martial, means the President of the court martial.
19
Subsection 3(1) (definition of Provost Marshal Australian Defence Force ) Repeal the definition.
Repeal the definition, substitute:
Registrar means the Registrar of Military Justice appointed under section 188FB.
Repeal the definition, substitute:
review means a review by a reviewing authority, or by the Chief of the Defence Force or a service chief, in accordance with Part VIIIA, of the proceedings of a service tribunal.
22
Subsection 3(1) (definition of reviewing authority ) Omit “subsection 150(1)”, substitute “section 150”.
23
Subsection 3(1) (definition of rules of procedure ) Repeal the definition, substitute:
rules of procedure means the following:
(a) the Summary Authority Rules;
(b) the Court Martial and Defence Force Magistrate Rules.
24
Subsection 3(1) (definition of service tribunal ) Omit “the Australian Military Court”, substitute “a court martial, a Defence Force magistrate”.
Repeal the section, substitute:
The Chief of the Defence Force or a service chief may, by instrument in writing, appoint an officer, or each officer included in a class of officers, to be a superior authority for the purpose of:
(a) representing the interests of the Defence Force in relation to charges that are being considered by the Director of Military Prosecutions for possible trial by a Defence Force magistrate or a court martial; and
(b) exercising the powers and performing the functions conferred on superior authorities by or under this Act or the regulations.
Repeal the paragraph, substitute:
(a) insults a member of a court martial, a judge advocate, a Defence Force magistrate or a summary authority in or in relation to the exercise of his or her powers or functions as such a member, judge advocate, magistrate or authority; or
Repeal the paragraph, substitute:
(d) engages in any other conduct that would, if a service tribunal were a court of record, constitute a contempt of that court.
Repeal the subsections, substitute:
(5) If an offence under subsection (4) is committed by a person in relation to a service tribunal that is a court martial or a Defence Force magistrate, during proceedings before the tribunal, the tribunal, if it considers it expedient to do so, may then and there order that the person be taken into custody and call on the person to show cause why the person should not be convicted of the offence.
(6) If a service tribunal convicts a person under subsection (5), the maximum punishment for the offence is detention for 21 days.
Repeal the subsection, substitute:
(1) A court martial or a Defence Force magistrate must not impose a punishment in respect of a conviction except in accordance with this Part and Schedule 2.
Omit “summary authority”, substitute “service tribunal”
Omit “summary authority”, substitute “service tribunal”.
After “service tribunal”, insert “or a reviewing authority that has revoked a suspension of a punishment on the recommendation of a service tribunal”.
Omit “summary authority” (wherever occurring), substitute “service tribunal”.
Repeal the section, substitute:
(1) Where a convicted person requests a court martial or a Defence Force magistrate to take into consideration, for the purposes of this Part, any other service offence:
(a) that is similar to the service offence of which the person has been convicted; and
(b) that the tribunal has jurisdiction to try; and
(c) that the person admits having committed;
the court martial or the Defence Force magistrate, with the consent of the prosecution, may take the other service offence into consideration.
(2) A court martial or a Defence Force magistrate shall not impose a separate punishment or make a separate order under subsection 75(1) in respect of a service offence that it has taken into consideration under subsection (1).
(3) Where:
(a) a court martial or a Defence Force magistrate does not take a service offence into consideration under subsection (1) by reason of:
(i) the withholding of consent by the prosecution; or
(ii) the rejection of the convicted person’s request; or
(b) a reviewing authority, under subsection 162(2), annuls the taking into consideration by a court martial or a Defence Force magistrate of a service offence;
an admission under and for the purposes of paragraph (1)(c) in relation to that service offence is not admissible as evidence in:
(c) any other proceeding before a service tribunal in respect of that service offence; or
(d) any proceeding in a civil court in respect of a civil court offence that is substantially the same offence as that service offence.
Repeal the section, substitute:
(1) Subject to subsection (2), where a person convicted of a service offence by a service tribunal is already subject to a punishment that is suspended, the tribunal may revoke the suspension and, in that event, the punishment that was suspended shall, subject to subsections 172(1) and (2), take effect as if it had been imposed at the time of the revocation.
(2) A service tribunal shall not revoke the suspension of a punishment if the tribunal would not have had power to impose the punishment if it had convicted the person of the service offence for which the punishment was imposed.
(3) Where, by virtue of subsection (2), a service tribunal is not empowered to revoke a suspension that it considers should be revoked, the tribunal may recommend to a competent reviewing authority that the suspension be revoked by that authority.
(4) Where, under subsection (3), a service tribunal recommends to a competent reviewing authority that a suspension of a punishment be revoked, the authority may revoke the suspension and, in that event, the punishment that was suspended shall, subject to subsections 172(1) and (2), take effect as if it had been imposed at the time of the revocation.
After “78(1)”, insert “or 162(8)”.
Repeal the subparagraph, substitute:
(ii) request the Registrar to refer the charge to a Defence Force magistrate for trial;
(iii) request the Registrar to convene a court martial to try the charge.
Note: A charge referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see subsection 129C(1).
Repeal the subsection, substitute:
(1A) The Registrar may carry out an action under subsection (1) only if a judge advocate or a Defence Force magistrate directs the Registrar to carry out the action.
Omit “summary authority” (wherever occurring), substitute “service tribunal”.
Omit “summary authority”, substitute “service tribunal”.
Omit “172(5), substitute “172(3A), (4) or (5)”.
After “tribunal” insert “or, in the case of a court martial, the judge advocate of the court martial,”.
After “tribunal” insert “or, in the case of a court martial, the judge advocate of the court martial,”.
Repeal the subsection, substitute:
(5) If the judge advocate of a court martial permits evidence to be given under subsection (3) or (4), the judge advocate must inform the members of the court martial of the non‑compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, as the case may be, and give the members such warning about the evidence as he or she thinks appropriate in the circumstances.
After “tribunal” (second occurring) insert “or, in the case of a court martial, the judge advocate of the court martial,”.
Repeal the subsection, substitute:
(9) Subject to the power of a service tribunal, or, in the case of a court martial, the judge advocate of the court martial, to exclude evidence:
(a) on the ground of unfairness to the accused; or
(b) on the ground that it is evidence of a confession not shown to have been made voluntarily; or
(c) otherwise in the interests of justice;
the prosecution is not prevented from leading evidence of a confession by reason only of anything said by the accused, during, or at the end of, the reading to the accused of a record in writing containing the confession, concerning the accuracy of the record, but this subsection does not prevent a judge advocate from directing the members of a court martial with respect to the weight to be accorded to the statement as evidence.
After “tribunal” (first occurring), insert “or, in the case of a court martial, the judge advocate of the court martial,”.
After “tribunal” (second occurring), insert “or the judge advocate”.
Repeal the subsection, substitute:
(11) Where the judge advocate of a court martial, in pursuance of subsection (10), permits evidence to be given before the members of the court martial, the judge advocate shall, if he or she considers that the interests of justice so require, inform the members of the court martial of the non‑compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the members of the court martial such warning concerning the evidence as he or she thinks appropriate in the circumstances.
After “tribunal”, insert “or, in the case of a court martial, the judge advocate of the court martial,”.
Repeal the Division.
After “tribunal” (second occurring), insert “or, in the case of a court martial, the judge advocate of the court martial,”.
After “tribunal” (third and fourth occurring), insert “or judge advocate”.
After “tribunal”, insert “or judge advocate”.
After “tribunal”, insert “or, in the case of a court martial, the judge advocate of the court martial,”.
After “tribunal”, insert “or judge advocate”.
Omit “section 101ZAA,”.
Repeal the paragraph, substitute:
(c) request the Registrar to refer the charge to a Defence Force magistrate for trial; or
(d) request the Registrar to convene a general court martial or a restricted court martial to try the charge.
After “Note”, insert “1”.
60
At the end of subsection 103(1) (after the note) Add:
Note 2: A charge referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see subsection 129C(1).
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Omit “165”, substitute “166”.
Omit “the Australian Military Court” (first occurring), substitute “a reviewing authority”.
Omit “appeal relates to the Australian Military Court”, substitute “order relates to a court martial or Defence Force magistrate”.
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Repeal the paragraph, substitute:
(d) request the Registrar to refer the charge to a Defence Force magistrate for trial; or
(e) request the Registrar to convene a general court martial or a restricted court martial to try the charge.
Repeal the section.
Omit “the Australian Military Court” (wherever occurring), substitute “a court martial or Defence Force magistrate”.
Note: The heading to section 111B is altered by omitting “
the Australian Military Court ” and substituting “a court martial or Defence Force magistrate ”.
Repeal the note.
Omit “the Australian Military Court” (wherever occurring), substitute “a court martial or Defence Force magistrate”.
Note 1: The heading to section 111C is altered by omitting “
the Australian Military Court ” and substituting “a court martial or Defence Force magistrate ”.Note 2: The headings to subsections 111C(3) and (5) are altered by omitting “
the Australian Military Court ” and substituting “a court martial or Defence Force magistrate ”.
Omit “the Court”, substitute “a court martial or Defence Force magistrate”.
Repeal the Divisions, substitute:
(1) A court martial shall be either a general court martial or a restricted court martial.
(2) A general court martial shall consist of a President and not less than 4 other members.
(3) A restricted court martial shall consist of a President and not less than 2 other members.
(1) A court martial has, subject to section 63 and to subsection (1A) of this section, jurisdiction to try any charge against any person.
(1A) A court martial does not have jurisdiction to try a charge of a custodial offence.
(2) A court martial has jurisdiction to take action under Part IV in relation to a convicted person if it has been convened under subsection 125(6) or 129A(4) for that purpose.
(3) A court martial, before taking action under subsection (2), shall hear evidence relevant to the determination of what action should be taken.
(1) For the purposes of this Act, a person is eligible to be a member, or a reserve member, of a court martial if, and only if:
(a) the person is an officer;
(b) the person has been an officer for a continuous period of not less than 3 years or for periods amounting in the aggregate to not less than 3 years; and
(c) the person holds a rank that is not lower than the rank held by the accused person (being a member of the Defence Force) or by any of the accused persons (being members of the Defence Force).
(2) For the purposes of this Act, an officer is eligible to be President of a court martial if, and only if, the officer holds a rank that is not lower than:
(a) in the case of a general court martial—the naval rank of captain or the rank of colonel or group captain; or
(b) in the case of a restricted court martial—the rank of commander, lieutenant‑colonel or wing commander.
(2A) Subsection (2) does not apply in relation to a person who becomes President of a court martial in pursuance of:
(a) an appointment made by virtue of paragraph 124(1)(e); or
(b) subsection 126(1).
(3) The requirements set out in paragraph (1)(c) and subsection (2) apply only if, and to the extent that, the exigencies of service permit.
For the purposes of this Act, a person is eligible to be the judge advocate of a court martial if, and only if, the person is a member of the judge advocates’ panel.
(1) The Registrar must, in an order convening a court martial:
(a) appoint:
(i) the President and the other members;
(ii) an adequate number of reserve members; and
(iii) the judge advocate; and
(b) fix, or provide for the fixing of, the time and place for the assembling of the court martial.
Note: The Registrar must not appoint a person as the judge advocate of a court martial unless the person has been nominated by the Judge Advocate General: see section 129B.
(2) At any time before a court martial assembles to try a charge, the Registrar may:
(a) vary the order convening the court martial; or
(b) make an order under subsection (1) convening a new court martial.
(1) The Registrar must, as soon as practicable after he or she makes an order convening a court martial for the purpose of trying an accused person (including an order made by virtue of subsection 119(2)), cause a copy of that order to be given to the accused person.
(2) If an order convening a court martial is subsequently varied, the Registrar must notify the accused person accordingly.
At any time before a court martial is sworn or affirmed, the accused person may lodge an objection with the Registrar to any member or reserve member of the court martial or to the judge advocate on the ground that the member or judge advocate:
(a) is ineligible;
(b) is, or is likely to be, biased; or
(c) is likely to be thought, on reasonable grounds, to be biased.
A member or reserve member, or the judge advocate, of a court martial who believes himself or herself:
(a) to be biased, or likely to be biased; or
(b) likely to be thought, on reasonable grounds, to be biased;
shall notify the Registrar forthwith.
At any time before a court martial is sworn or affirmed, the Registrar may revoke the appointment of an officer to be a member or reserve member of the court martial or the judge advocate and appoint an officer to be a member or reserve member or the judge advocate, as the case may be, in the place of that first‑mentioned officer.
Note: The Registrar must not appoint a person as the judge advocate of a court martial unless the person has been nominated by the Judge Advocate General: see section 129B.
(1) Where, after a court martial has assembled but before it is sworn or affirmed, the judge advocate:
(a) finds that a member of the court martial who has not appeared at the place of assembly is not, or is not likely to be, available;
(b) upholds an objection entered under subsection 141(2) to a member of the court martial; or
(c) finds that, for some other reason, a member of the court martial should be excused from further attendance as such a member;
the judge advocate shall:
(d) where the member concerned is not the President—appoint a reserve member in the place of that member;
(e) where the member concerned is the President and the next senior member is not more than one rank junior to the President—appoint that next senior member to be the President in the place of the member concerned; or
(f) where the member concerned is the President and the next senior member is more than one rank junior to the President—report the situation to the Registrar and request the Registrar to appoint a President in the place of the member concerned.
(2) Where, after a court martial has assembled but before it is sworn or affirmed, the judge advocate finds that there are insufficient members and reserve members properly to constitute the court martial, the judge advocate shall report the situation to the Registrar and request the Registrar to appoint as many new members or new reserve members, or both, as the Registrar considers necessary.
(3) Where the judge advocate upholds an objection entered under subsection 141(3) to himself or herself, he or she shall report the situation to the Registrar and request the Registrar to appoint another judge advocate in his or her place.
Note: The Registrar must not appoint a person as a judge advocate of a court martial unless the person has been nominated by the Judge Advocate General: see section 129B.
(1) Where, after a court martial has assembled but before it is sworn or affirmed, the judge advocate considers that by reason of the exigencies of service or for any other reason it is desirable to do so, he or she may direct the Registrar to dissolve the court martial.
(2) Where:
(a) at any time after a court martial is sworn or affirmed, there is an insufficient number of members properly to constitute the court martial; or
(b) at any time after the accused person’s plea of guilty or not guilty has been recorded by a court martial, the judge advocate is unable to attend;
the Registrar must dissolve the court martial.
(3) Where, at any time after a court martial is sworn or affirmed, the judge advocate considers that, in the interests of justice, the court martial should be dissolved, the judge advocate must direct the Registrar to dissolve the court martial.
(4) Where:
(a) a court martial has adjourned the hearing of the proceedings before it; and
(b) the judge advocate considers that, by reason of the exigencies of service, it will not be practicable to continue the hearing of the proceedings at a later date;
the judge advocate must direct the Registrar to dissolve the court martial.
(5) Where a court martial is dissolved under subsection (1), (2), (3) or (4), the Director of Military Prosecutions may request the Registrar to convene another court martial in its stead.
(6) Where a court martial is dissolved as mentioned in subsection (2), (3) or (4) after it has convicted a person but before it has taken action under Part IV in relation to the convicted person, the Registrar may convene another court martial for the purpose of taking such action.
(7) A court martial, before taking action under subsection (6), shall hear evidence relevant to the determination of what action should be taken.
(8) For the purposes of this Part, a member of a court martial convened under subsection (6) shall not be taken to be biased by reason only of his or her having been a member of the court martial that was dissolved as mentioned in that subsection.
(1) Where the President is unable to attend at any time after the accused person’s plea of not guilty or guilty has been recorded by a court martial, the next senior member shall become the President of the court martial and the first‑mentioned President shall take no further part in the proceedings.
(2) Where a member of a court martial is unable to attend at any time after the accused person’s plea of not guilty or guilty has been recorded by a court martial, that member shall take no further part in the proceedings.
(1) The Judge Advocate General may, by instrument in writing, appoint officers to be Defence Force magistrates.
(2) An officer is not eligible to be a Defence Force magistrate unless the officer is a member of the judge advocates’ panel.
Note: A member of the judge advocates’ panel is appointed for a maximum period of 3 years but is eligible for reappointment: see subsection 196(2A).
(1) A Defence Force magistrate shall, before proceeding to discharge the duties of his or her office, make and subscribe an oath or affirmation in accordance with the form in Schedule 4.
(2) An oath or affirmation under this section shall be made before the Judge Advocate General or an officer authorized, in writing, by the Judge Advocate General for the purpose.
(1) A Defence Force magistrate has the same jurisdiction and powers as a restricted court martial (including the powers of the judge advocate of a restricted court martial).
(2) A Defence Force magistrate has jurisdiction to take action under Part IV in relation to a convicted person if the case has been referred to the magistrate under subsection 129A(4) for that purpose.
(3) A Defence Force magistrate, before taking action under subsection (2), shall hear evidence relevant to the determination of what action should be taken.
(1) If a charge or case has been referred to a Defence Force magistrate under subparagraph 87(1)(c)(ii), section 103 or subsection (4) of this section, the Registrar must terminate the reference if:
(a) at a time before the Defence Force magistrate commences to try the charge or hear the case, it appears to the Registrar that, by reason of the exigencies of service, or for any other reason, it is desirable to terminate the reference; or
(b) at a time after the Defence Force magistrate commences to try the charge or hear the case:
(i) it appears to the Defence Force magistrate that it would not be in the interests of justice for the Defence Force magistrate to continue; and
(ii) the Defence Force magistrate directs the Registrar to terminate the reference.
(2) Where:
(a) a charge or case has been referred to a Defence Force magistrate under subparagraph 87(1)(c)(ii), section 103 or subsection (4) of this section; and
(b) at a time after the Defence Force magistrate commences to try the charge or hear the case, the Defence Force magistrate is unable to conclude the trial of the charge or the hearing of the case because of death, illness, the exigencies of service or other circumstances;
the Registrar must terminate the reference.
(3) Where a reference of a charge is terminated by the Registrar under subsection (1) or (2) at a time before the dismissal of the charge or the acquittal or conviction of the accused person, the charge shall, by virtue of the termination of the reference, be taken to have been referred to the Director of Military Prosecutions.
(4) Where:
(a) a reference of a charge is terminated under subsection (1) or (2) after the conviction of the accused person and before action has been taken under Part IV in relation to the person; or
(b) a reference of a case is terminated under subsection (1) or (2) before action has been taken under Part IV in relation to the convicted person;
the Registrar may:
(c) refer the charge or case, as the case may be, to a Defence Force magistrate to take action under Part IV in relation to the person; or
(d) if no Defence Force magistrate is available or the Director of Military Prosecutions considers that it would be more appropriate for the matter to be dealt with by a court martial—convene a general court martial or a restricted court martial to take action under Part IV in relation to the person.
Note: A charge or case referred to a Defence Force magistrate must be referred to the magistrate nominated by the Judge Advocate General: see section 129C.
(1) The Registrar must not appoint a person as:
(a) the President of a court martial; or
(b) a member or reserve member of a court martial; or
(c) a judge advocate of a court martial;
if the Registrar believes the person to be:
(d) biased or likely to be biased; or
(e) likely to be thought, on reasonable grounds, to be biased.
(2) The Registrar must not appoint a person as a judge advocate of a court martial unless the Judge Advocate General has nominated that person for that position.
(3) The appropriate service chief must make available, for the purposes of a court martial, a defence member who is appointed to be a member of that court martial.
(1) The Registrar must not refer a charge to a Defence Force magistrate unless the Judge Advocate General has nominated the magistrate to try the charge.
(2) The Registrar must not refer a case to a Defence Force magistrate to take action under Part IV in relation to a convicted person unless the Judge Advocate General has nominated the magistrate to take action in relation to the person.
Renumber as section 129D.
Omit “the Australian Military Court” (wherever occurring), substitute “a court martial or Defence Force magistrate”.
Note: The heading to section 131 is altered by omitting “
the Australian Military Court ” and substituting “a court martial or Defence Force magistrate ”.
Repeal the note.
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Note: The heading to section 131AA is altered by omitting “
the Australian Military Court ” and substituting “a court martial or Defence Force magistrate ”.
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Note: The heading to subsection 131AA(3) is altered by omitting “
the Australian Military Court ” and substituting “a court martial or Defence Force magistrate ”.
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Note: The heading to subsection 131AA(5) is altered by omitting “
the Australian Military Court ” and substituting “a court martial or Defence Force magistrate ”.
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Omit “the Court”, substitute “the court martial or Defence Force magistrate”.
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Repeal the Division, substitute:
(1) A court martial shall try a charge in accordance with the following provisions:
(a) before the court martial commences to hear the evidence on the charge, the judge advocate shall ask the accused person whether he or she pleads guilty or not guilty to the charge and, if the accused person pleads guilty and the judge advocate is satisfied that the accused person understands the effect of that plea, the court martial shall convict the accused person;
(b) if the accused person pleads not guilty or if the judge advocate is not satisfied that the accused person, in pleading guilty, understands the effect of that plea, the court martial shall record a plea of not guilty and proceed to hear the evidence on the charge;
(c) if the judge advocate, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is insufficient to support the charge, the court martial shall dismiss the charge;
(d) if the judge advocate, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is sufficient to support the charge, the court martial shall proceed with the trial;
(e) if the court martial finds the accused person not guilty, the court martial shall acquit the accused person;
(f) if the court martial finds the accused person guilty, the court martial shall convict the accused person;
(g) if the court martial convicts the accused person, the court martial shall take action under Part IV in relation to the convicted person.
(2) Where an accused person:
(a) refuses to plead; or
(b) does not plead intelligibly;
the court martial shall record a plea of not guilty and proceed accordingly in accordance with subsection (1).
(3) Where, under paragraph (1)(a), an accused person pleads guilty to a service offence that is one (other than the first) of 2 or more charges stated in the charge sheet in the alternative, the court martial shall:
(a) if the Director of Military Prosecutions notifies the court martial that he or she does not object to the acceptance of the plea—accept the plea and proceed accordingly in accordance with subsection (1); or
(b) in any other case—record a plea of not guilty and proceed accordingly in accordance with subsection (1).
(4) Where an accused person who has pleaded not guilty withdraws his or her plea and pleads guilty, the court martial shall, if the judge advocate is satisfied that the accused person understands the effect of that plea, substitute a plea of guilty for the plea of not guilty and proceed accordingly in accordance with subsection (1).
(4A) Nothing in subsection (1) shall be taken to require the judge advocate to give either a ruling of the kind referred to in paragraph (1)(c) or a ruling of the kind referred to in paragraph (1)(d) unless:
(a) the accused person has submitted that the judge advocate should give a ruling of the first‑mentioned kind; or
(b) the interests of justice require that the judge advocate should give a ruling of the first‑mentioned kind.
(5) A court martial, before taking action under paragraph (1)(g), shall hear evidence relevant to the determination of what action should be taken.
(1) Subject to section 134, in any proceeding before a court martial:
(a) the President shall preside; and
(b) every question shall be determined by the members of the court martial.
(2) Every question determined by the members of the court martial shall be decided by a majority of the votes of the members.
(3) Subject to subsections (4) and (5), in the case of an equality of votes on any question referred to in subsection (2), the President has a casting vote.
(4) In the case of an equality of votes on the question whether an accused person is guilty or not guilty of a service offence, the court martial shall find the accused person not guilty.
(5) In the case of an equality of votes on the question whether an accused person, at the time of the act or omission the subject of the charge, was suffering from such unsoundness of mind as not to be responsible, in accordance with law, for that act or omission, the court martial shall find that the person was, at that time, suffering from such unsoundness of mind.
(6) Notwithstanding anything contained in this Act, the members of a court martial:
(a) in determining the question whether an accused person:
(i) is guilty or not guilty of a service offence; or
(ii) at the time of the act or omission the subject of the charge, was suffering from such unsoundness of mind as not to be responsible, in accordance with law, for that act or omission; or
(b) in determining what action shall be taken under Part IV in relation to a convicted person;
shall sit without any other person present.
(1) In proceedings before a court martial, the judge advocate shall give any ruling, and exercise any discretion, that, in accordance with the law in force in the Jervis Bay Territory, would be given or exercised by a judge in a trial by jury.
(2) Where, for any purpose in connection with the giving of a ruling, or the exercise of a discretion, by a judge in a trial by jury in the Jervis Bay Territory, the judge would, in accordance with the law in force in that Territory, sit in the absence of the jury, the judge advocate shall, for any purpose in connection with the giving of such a ruling, or the exercise of such a discretion, by the judge advocate, sit without the members of the court martial.
(3) Notwithstanding subsections (1) and (2), in a proceeding before a court martial, the members of the court martial shall determine what action shall be taken under Part IV in relation to a convicted person, but the judge advocate shall give a ruling on any question of law arising in connection with the making of such a determination.
(4) A ruling given by the judge advocate in accordance with subsection (1) or (3) and a decision made by the judge advocate under subsection 141(5) or (6) is binding on the court martial.
(5) The judge advocate when sitting without the members of a court martial may exercise such of the powers of the court martial or the President as are necessary for the performance of his or her duties.
(6) The powers conferred on the judge advocate by this section are in addition to any other powers conferred on the judge advocate by any other provision of this Act, the regulations or the rules of procedure.
(1) A Defence Force magistrate shall try a charge in accordance with the following provisions:
(a) before the Defence Force magistrate commences to hear the evidence on the charge, the Defence Force magistrate shall ask the accused person whether he or she pleads guilty or not guilty to the charge and, if the accused person pleads guilty and the Defence Force magistrate is satisfied that the accused person understands the effect of that plea, the Defence Force magistrate shall convict the accused person;
(b) if the accused person pleads not guilty or if the Defence Force magistrate is not satisfied that the accused person, in pleading guilty, understands the effect of that plea, the Defence Force magistrate shall record a plea of not guilty and proceed to hear the evidence on the charge;
(c) if the Defence Force magistrate, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is insufficient to support the charge, the Defence Force magistrate shall dismiss the charge;
(d) if the Defence Force magistrate, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is sufficient to support the charge, the Defence Force magistrate shall proceed with the trial;
(e) if the Defence Force magistrate finds the accused person not guilty, the Defence Force magistrate shall acquit the accused person;
(f) if the Defence Force magistrate finds the accused person guilty, the Defence Force magistrate shall convict the accused person;
(g) if the Defence Force magistrate convicts the accused person, the Defence Force magistrate shall take action under Part IV in relation to the convicted person.
(2) Where an accused person:
(a) refuses to plead; or
(b) does not plead intelligibly;
the Defence Force magistrate shall record a plea of not guilty and proceed accordingly in accordance with subsection (1).
(3) Where, under paragraph (1)(a), an accused person pleads guilty to a service offence that is one (other than the first) of 2 or more charges stated in the charge sheet in the alternative, the Defence Force magistrate shall:
(a) if the Director of Military Prosecutions notifies the Defence Force magistrate that he or she does not object to the acceptance of the plea—accept the plea and proceed accordingly in accordance with subsection (1); or
(b) in any other case—record a plea of not guilty and proceed accordingly in accordance with subsection (1).
(4) Where an accused person who has pleaded not guilty withdraws his or her plea and pleads guilty, the Defence Force magistrate shall, if the Defence Force magistrate is satisfied that the accused person understands the effect of that plea, substitute a plea of guilty for the plea of not guilty and proceed accordingly in accordance with subsection (1).
(4A) Nothing in subsection (1) shall be taken to require the Defence Force magistrate to give either a ruling of the kind referred to in paragraph (1)(c) or a ruling of the kind referred to in paragraph (1)(d) unless:
(a) the accused person has submitted that the Defence Force magistrate should give a ruling of the first‑mentioned kind; or
(b) the interests of justice require that the Defence Force magistrate should give a ruling of the first‑mentioned kind.
(5) A Defence Force magistrate, before taking action under paragraph (1)(g), shall hear evidence relevant to the determination of what action should be taken.
A person shall not represent a party before a court martial or a Defence Force magistrate unless the person is:
(a) where the trial is held in Australia—a member of the Defence Force or a legal practitioner; or
(b) where the trial is held in a place outside Australia—a person referred to in paragraph (a) or a person qualified to practise before the courts of that place.
(1) The Chief of the Defence Force shall if, and to the extent that, the exigencies of service permit, cause an accused person awaiting trial by a court martial or by a Defence Force magistrate to be afforded the opportunity to be represented at the trial, and to be advised before the trial, by a legal officer.
(2) An accused person who is advised or represented in accordance with subsection (1) shall be so advised or represented without expense to the accused person.
(3) Nothing in this section prevents the operation of any scheme of legal aid, advice or assistance under a law of the Commonwealth or of a State or Territory.
(4) The Chief of the Defence Force may delegate his or her powers under subsection (1) to a member of the Defence Force who holds a rank that is not lower than the naval rank of captain, or the rank of colonel or group captain.
Repeal the section.
After “tribunal”, (first occurring), insert “or, if the service tribunal is a court martial, the President of the court martial”.
After “tribunal”, (first occurring), insert “or, if the service tribunal is a court martial, the President of the court martial”.
After “tribunal”, (second occurring), insert “or President”.
Insert:
(2A) The President must not make an order under subsection (2) unless the President has first consulted the judge advocate.
Repeal the section, substitute:
(1) Subject to this section, the hearing of proceedings before a court martial or a Defence Force magistrate shall be in public.
(2) In proceedings before a court martial or a Defence Force magistrate, the President of the court martial or the Defence Force magistrate may, if the President considers it necessary in the interests of the security or defence of Australia, the proper administration of justice or public morals:
(a) order that some or all of the members of the public shall be excluded during the whole or a specified part of the proceedings; or
(b) order that no report of, or relating to, the whole or a specified part of the proceedings shall be published.
(3) The President of a court martial shall not make an order under subsection (2) unless the President has first consulted the judge advocate.
(4) Where proceedings before a court martial or a Defence Force magistrate are held in a secure place, the appropriate service chief shall cause such steps to be taken as will permit the public to have reasonable access, subject to an order (if any) in force under subsection (2), to the proceedings.
(5) In subsection (4),
secure place means a place the entry to which is controlled by guards who are constables or members of the Defence Force.
Repeal the subsection, substitute:
(2) At any time before a court martial is sworn or affirmed, the accused person may enter an objection to any member or reserve member of the court martial on the ground that the member:
(a) is ineligible; or
(b) is, or is likely to be, biased; or
(c) is likely to be thought, on reasonable grounds, to be biased.
(3) At any time before an accused person is asked to plead at a trial by a court martial, the accused person may enter an objection to the judge advocate on the ground that the judge advocate:
(a) is ineligible; or
(b) is, or is likely to be, biased; or
(c) is likely to be thought, on reasonable grounds, to be biased.
After “tribunal,” (first occurring) insert “other than a court martial,”.
Before “the service tribunal” insert “in the case of a court martial, the judge advocate of the court martial, or in any other case,”.
After “tribunal” (last occurring) insert “or the judge advocate”.
After “(2)”, insert “, (3)”.
Before “the service tribunal” insert “in the case of a court martial, the judge advocate of the court martial, or in any other case,”.
After “tribunal” (last occurring), insert “or the judge advocate”.
Repeal the subsections, substitute:
(7) An application or objection under subsection (1), (2) or (3) with respect to a trial by a court martial may be notified to the judge advocate of the court martial at any time after the making of the order convening the court martial and, on the notification of such an application or objection, the judge advocate shall sit without the members of the court martial for a hearing of that application or objection.
(8) Where a Defence Force magistrate or a judge advocate grants an application, or allows an objection, under this section, the Defence Force magistrate or the judge advocate may refer the charge against the accused person to the Director of Military Prosecutions.
Repeal the section, substitute:
(1) Where it appears to:
(a) a summary authority, before dealing with or trying a charge or at any stage of dealing with or trying a charge; or
(b) the Director of Military Prosecutions, at any stage when a charge is before him or her under section 103; or
(c) the judge advocate of a court martial, before the court martial tries a charge or at any stage of the trial of a charge; or
(d) a Defence Force magistrate, before trying a charge or at any stage of trying a charge;
that, for any reason, the charge should be amended, the summary authority, Director of Military Prosecutions, judge advocate or Defence Force magistrate, as the case may be, shall make such amendment of the charge as he or she thinks necessary unless the amendment cannot be made without injustice to the accused person.
(2) In subsection (1),
amendment includes the addition of a charge or the substitution of a charge for another charge.
Repeal the note.
Omit “the Australian Military Court”, substitute “a court martial or a Defence Force magistrate”.
Omit “132B or 132D”, substitute “132 or 135”.
Repeal the subsection, substitute:
(2) Where a court martial or a Defence Force magistrate is satisfied that an accused person, by reason of mental impairment, is not able to understand the proceedings against him or her and accordingly is unfit to stand trial, the court martial or the Defence Force magistrate shall so find and shall direct that the person be kept in strict custody until the pleasure of the Governor‑General is known.
Repeal the subsections, substitute:
(4) Where, in a trial of a charge by a court martial or a Defence Force magistrate, the court martial or the Defence Force magistrate finds that the accused person, at the time of the act or omission the subject of the charge, was suffering from such mental impairment as not to be responsible, in accordance with law, for that act or omission, the court martial or the Defence Force magistrate shall find the accused person not guilty on the ground of mental impairment and shall acquit the person of the charge on the ground of mental impairment.
(5) Where an accused person is acquitted by a court martial or a Defence Force magistrate of a charge on the ground of mental impairment, the court martial or the Defence Force magistrate shall record the ground of the acquittal and shall direct that the accused person be kept in strict custody until the pleasure of the Governor‑General is known.
Repeal the section, substitute:
(1) Where the Registrar:
(a) convenes a court martial to try a charge; or
(b) refers a charge to a Defence Force magistrate for trial;
the Registrar must:
(c) inform the accused person of the requirements of subsections (2), (3) and (5); and
(d) give a copy of this section to the accused person.
(2) In a trial of a charge by a court martial or Defence Force magistrate, the accused person shall not, without the leave of the judge advocate of the court martial or the Defence Force magistrate, as the case requires, adduce evidence in support of an alibi or assert in any statement made by him or her otherwise than on oath or affirmation that he or she has an alibi unless, before the end of the period of 14 days commencing on the day of the making of the order convening the court martial or the referring of the charge to the Defence Force magistrate, as the case requires, he or she gives notice of particulars of the alibi.
(3) In a trial of a charge by a court martial or Defence Force magistrate, the accused person shall not, without the leave of the judge advocate of the court martial or the Defence Force magistrate, as the case requires, call a person to give evidence in support of an alibi unless:
(a) the notice given under subsection (2) includes the name and address of the person or, if the name or address of the person is not known to the accused person at the time he or she gives the notice, all information then in his or her possession that may be of material assistance in ascertaining the identity of, or in locating, the person;
(b) if the name or address of the person is not included in the notice—the judge advocate of the court martial or the Defence Force magistrate, as the case may be, is satisfied that, before giving notice, the accused person took, and, after giving the notice, the accused person continued to take, all reasonable steps to ascertain the name and address of the person;
(c) if the name or address of the person is not included in the notice, but the accused person subsequently ascertains the name or address of the person or receives information that may be of material assistance in ascertaining the identity of, or in locating, the person—the accused person forthwith gives notice of the name, address or other information, as the case may be; and
(d) if the accused person is notified by or on behalf of the prosecution that the person has not been found by the name, or at the address, given by the accused person—the accused person forthwith gives notice of all information that is then in his or her possession that may be of material assistance in ascertaining the identity of, or in locating, the person and, if the accused person subsequently receives any such information, the accused person forthwith gives notice of the information.
(4) Evidence to disprove an alibi may, subject to any direction by the judge advocate of a court martial or a Defence Force magistrate, be adduced before or after evidence is adduced in respect of the alibi.
(5) A notice under this section shall be given in writing to the Director of Military Prosecutions and the Registrar.
(6) In this section,
evidence in support of an alibi means evidence tending to show that by reason only of the presence of the accused person at a particular place, or in a particular area, at a particular time the accused person was not, or was unlikely to have been, at the place where the service offence is alleged to have been committed at the time of the alleged commission of the service offence.
Omit “the Australian Military Court” (first occurring), substitute “a court martial or Defence Force magistrate”.
Note: The heading to section 146 is replaced by the heading “
Rules of evidence ”.
Omit “the Australian Military Court”, substitute “the court martial or Defence Force magistrate”.
Omit “the Australian Military Court”, substitute “a court martial or Defence Force magistrate”.
Repeal the subsection, substitute:
(1) In addition to the matters of which judicial notice may be taken by a court under the rules of evidence referred to in section 146, a court martial or the Defence Force magistrate shall take judicial notice of all matters within the general service knowledge of the tribunal or of its members.
Omit “The Australian Military Court”, substitute “The President of a court martial or a Defence Force magistrate”.
Omit “the Court” (wherever occurring), substitute “the court martial or Defence Force magistrate”.
110
Subdivision B of Division 3 of Part VIII (heading) Repeal the heading, substitute:
Repeal the subsection, substitute:
(1) The President of a court martial or a Defence Force magistrate may, for the purposes of proceedings before the court martial or Defence Force magistrate, direct or allow testimony to be given by video link or audio link.
Omit “Court”, substitute “President or Defence Force magistrate”.
Omit “Court” (wherever occurring), substitute “court martial or Defence Force magistrate”.
Omit “the Court” (first occurring), substitute “the President of a court martial or a Defence Force magistrate”.
Omit “the Court’s own initiative”, substitute “the initiative of the President of the court martial or the Defence Force magistrate”.
Repeal the subsection, substitute:
(1) The President of a court martial or a Defence Force magistrate may, for the purposes of proceedings before the court martial or Defence Force magistrate, direct or allow a person:
(a) to appear before the court martial or Defence Force magistrate; or
(b) to make a submission to the court martial or Defence Force magistrate;
by way of video link or audio link.
Omit “on the Court”.
Omit “the Court’s own initiative”, substitute “the initiative of the President or Defence Force magistrate”.
Omit “The Australian Military Court”, substitute “The President of a court martial or a Defence Force magistrate”.
Omit “the Court” (first occurring), substitute “the President or Defence Force magistrate”.
Omit “the Court”, substitute “the court martial or Defence Force magistrate”.
Omit “the Australian Military Court Rules”, substitute “the Court Martial and Defence Force Magistrate Rules”.
Omit “the Court”, substitute “the court martial or Defence Force magistrate”.
Omit “the Australian Military Court Rules”, substitute “the Court Martial and Defence Force Magistrate Rules”.
Omit “The Court”, substitute “The President of a court martial or the Defence Force magistrate”.
Omit “the Court” (first occurring), substitute “the President or Defence Force magistrate”.
Omit “the Court”, substitute “the court martial or the Defence Force magistrate”.
Omit “the Australian Military Court Rules”, substitute “the Court Martial and Defence Force Magistrate Rules”.
Omit “the Court”, substitute “the court martial or Defence Force magistrate”.
Omit “the Australian Military Court Rules”, substitute “the Court Martial and Defence Force Magistrate Rules”.
Omit “the Australian Military Court”, substitute “the court martial or the Defence Force magistrate conducting the proceedings”.
Omit “the Australian Military Court”, substitute “the President or Defence Force magistrate”.
Omit “the Court” (wherever occurring), substitute “the court martial or the Defence Force magistrate”.
Omit “the Australian Military Court” (wherever occurring), substitute “the court martial or the Defence Force magistrate”.
Insert:
A President must seek the advice of a judge advocate before exercising a power conferred upon the President by this Subdivision.
Omit “Chief Military Judge”, substitute “Judge Advocate General”.
Omit “Chief Military Judge”, substitute “Judge Advocate General”.
Note: The heading to section 149A is altered by omitting “
Australian Military Court Rules ” and substituting “Court Martial and Defence Force Magistrate Rules ”.
Omit “Australian Military Court Rules”, substitute “Court Martial and Defence Force Magistrate Rules”.
Omit “Court”(first occurring), substitute “court martial or Defence Force magistrate”.
Repeal the subparagraph.
141
Subparagraphs 149A(a)(vii), (viii), (ix) and (x) Omit “Court”, substitute “court martial or Defence Force magistrate”.
Repeal the subparagraph.
Omit “Court”, substitute “court martial or Defence Force magistrate”.
Repeal the paragraph.
Repeal the heading, substitute:
Repeal the heading, substitute:
Repeal the sections, substitute:
The Chief of the Defence Force or a service chief may, by instrument in writing, appoint an officer, or each officer included in a class of officers, to be a reviewing authority for the purpose of reviewing proceedings of service tribunals (whether all service tribunals or service tribunals of a specified kind) and exercising any other powers and functions that are conferred on reviewing authorities by this Act or the regulations.
A reviewing authority is a
competent reviewing authority for the purposes of reviewing the proceedings of a service tribunal that relate to a particular charge only if the reviewing authority did not exercise any of the powers or perform any of the functions of a superior authority in relation to the charge.
Repeal the sections, substitute:
(1) As soon as practicable after a service tribunal convicts a person of a service offence or gives a direction in relation to a person under subsection 145(2) or (5), the service tribunal shall transmit the record of the proceedings to a competent reviewing authority.
(2) A reviewing authority shall, as soon as practicable after receiving a record of proceedings under subsection (1), review the proceedings in accordance with this Part.
(3) After reviewing the proceedings, the reviewing authority must give the person who was convicted of the service offence, or who was the person in relation to whom a direction under subsection 145(2) or (5) was given, and the service tribunal, written notice of the results of the review.
(4) The reviewing authority must complete the review:
(a) within 30 days after receiving the record referred to in subsection (1); or
(b) if this is not possible due to the exigencies of service—as soon as practicable after the end of that period.
(1) Where a service tribunal convicts a person of a service offence or gives a direction in relation to a person under subsection 145(2) or (5), the person may lodge with a competent reviewing authority a petition for a review of the proceedings concerned.
(1A) The person must lodge the petition within 30 days after the person is given notice of the results of the review under subsection 152(3) unless the reviewing authority extends the period during which the petition may be lodged.
(1B) If the reviewing authority extends the period during which the petition may be lodged, the petition must be lodged within that extended period.
(2) Where:
(a) a person appeals, or applies for leave to appeal, to the Defence Force Discipline Appeal Tribunal; and
(b) the Tribunal dismisses the appeal or the application for leave to appeal;
the person may, within 60 days after that dismissal or such further period as a competent reviewing authority allows, lodge with the reviewing authority a petition for a review of the proceedings of the service tribunal the subject of that appeal or application for leave to appeal.
(3) A petition under subsection (1) or (2) shall set out the grounds on which the petitioner relies for the exercise of the power of review in accordance with this Part.
(4) On receipt of a petition under subsection (1) or (2), a reviewing authority shall, as soon as practicable and, in any event, within 30 days after the receipt:
(a) review the proceedings in accordance with this Part having regard to the grounds set out in the petition; and
(b) notify the petitioner, in writing, of the result of that review.
(5) Notwithstanding anything in subsection (4), a reviewing authority shall not, in a review of proceedings referred to in subsection (2), exercise any of his or her powers under Division 3 or 4 other than his or her powers under section 162.
Repeal the sections, substitute:
(1) A reviewing authority shall not commence a review without first obtaining a report on the proceedings from:
(a) in the case of a conviction, or a direction given under subsection 145(2) or (5), by a court martial or Defence Force magistrate—a legal officer appointed, by instrument in writing, for the purposes of this section by the Chief of the Defence Force or a service chief on the recommendation of the Judge Advocate General; or
(b) in any other case—a legal officer.
(1A) An appointment under paragraph (1)(a) is for the period, not exceeding 3 years, specified in the instrument of appointment.
(1B) A legal officer appointed under paragraph (1)(a) may be reappointed for a further period or periods.
(2) Subject to subsection (4), a reviewing authority, in making a review, is bound by any opinion on a question of law set out in a report obtained under subsection (1).
(3) A reviewing authority may refer a report obtained under subsection (1) to the Judge Advocate General or, if the Judge Advocate General so directs, to a Deputy Judge Advocate General.
(4) On a reference under subsection (3) of a report, the Judge Advocate General or the Deputy Judge Advocate General may dissent from any opinion on a question of law set out in the report and, if he or she does so, he or she shall furnish to the reviewing authority, in writing, his or her own opinion on that question, which opinion is binding on the reviewing authority.
(1) A review by a reviewing authority does not prevent a further review of the proceedings concerned by the Chief of the Defence Force or a service chief if it appears to the Chief of the Defence Force or the service chief that there are sufficient grounds for a further review.
(2) Subject to subsection (3), the Chief of the Defence Force or a service chief shall conduct a further review under subsection (1) in accordance with this Part and, for that purpose, the Chief of the Defence Force or the service chief shall be deemed to be a reviewing authority.
(3) The Chief of the Defence Force or a service chief shall not commence a review without first obtaining a report on the proceedings from the Judge Advocate General or, if the Judge Advocate General so directs, from a Deputy Judge Advocate General.
(4) The Chief of the Defence Force or a service chief, in making a review, is bound by any opinion on a question of law set out in a report obtained under subsection (3).
(1) Subject to subsection (2), where, at any time before or after a reviewing authority commences to review proceedings of a service tribunal that have resulted in a conviction or a prescribed acquittal, the convicted person or the prescribed acquitted person, as the case may be, lodges an appeal, or an application for leave to appeal, to the Defence Force Discipline Appeal Tribunal, the reviewing authority shall not exercise any of his or her powers under Division 3 or 4 in relation to that review.
(2) Where the Defence Force Discipline Appeal Tribunal dismisses the appeal, or the application for leave to appeal, the reviewing authority may proceed with a review, not being a review under section 153, but shall not exercise any of his or her powers under Division 3 or 4 other than his or her powers under section 162.
(3) In this section,
prescribed acquitted person means a person who has been acquitted of a service offence by a court martial or a Defence Force magistrate on the ground of unsoundness of mind.
Repeal the Division, substitute:
In this Division,
review means a review under this Part of proceedings of a service tribunal that have resulted in a conviction.
(1) Subject to subsection (5), where in a review it appears to the reviewing authority:
(a) that the conviction is unreasonable, or cannot be supported, having regard to the evidence;
(b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred;
(c) that there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or
(d) that, in all the circumstances of the case, the conviction is unsafe or unsatisfactory;
the reviewing authority shall quash the conviction.
(2) Subject to subsection (5), where in a review it appears to the reviewing authority that there is evidence that:
(a) was not reasonably available during the proceedings;
(b) is likely to be credible; and
(c) would have been admissible in the proceedings;
the reviewing authority shall receive and consider that evidence and, if the reviewing authority considers that the conviction cannot be supported having regard to that evidence, the reviewing authority shall quash the conviction.
(3) Subject to subsection (5), where in a review the reviewing authority is satisfied that, at the time of the act or omission the subject of the charge, the convicted person was suffering from such unsoundness of mind as not to be responsible, in accordance with law, for that act or omission, the reviewing authority shall:
(a) quash the conviction;
(b) substitute for the conviction so quashed an acquittal on the ground of unsoundness of mind; and
(c) direct that the person be kept in strict custody until the pleasure of the Governor‑General is known.
(4) Where in a review it appears to the reviewing authority that the court martial or the Defence Force magistrate should have found that the convicted person, by reason of unsoundness of mind, was not able to understand the proceedings against him or her and accordingly was unfit to stand trial, the reviewing authority shall quash the conviction and direct that the person be kept in strict custody until the pleasure of the Governor‑General is known.
(5) A reviewing authority shall not quash a conviction under subsection (3) or (4) if there are grounds for quashing the conviction under subsection (1) or (2).
For the purposes of this Act, where a reviewing authority quashes a conviction of a person of a service offence and does not order a new trial of the person for the offence, the person shall be deemed to have been acquitted of the offence.
(1) Where in a review the reviewing authority:
(a) quashes a conviction that was recorded within the preceding 6 months; and
(b) considers that, in the interests of justice, the person who was convicted should be tried again for the service offence of which the person was convicted;
the reviewing authority may order a new trial of the person for that offence.
(2) An order under subsection (1) for the new trial of a person lapses unless the new trial commences within a period of 6 months commencing on the day on which the order is made.
(3) Where a reviewing authority makes an order under subsection (1) for a new trial of a person, the reviewing authority may make such further orders for the custody of the person pending the new trial as the authority thinks appropriate.
(1) Where in a review the reviewing authority quashes the conviction of a person of a service offence (in this section referred to as
the original offence ) but considers:
(a) that the service tribunal could in the proceedings have found the person guilty of another offence, being:
(i) a service offence that is an alternative offence, within the meaning of section 142, in relation to the original offence; or
(ii) a service offence with which the person was charged in the alternative and in respect of which the service tribunal did not record a finding; and
(b) that the service tribunal, by reason of the finding of the service tribunal finding that the person was guilty of the original offence, must have been satisfied beyond reasonable doubt of facts that prove that the person was guilty of the other offence;
the reviewing authority may substitute for the conviction of the original offence a conviction of the other offence.
(2) Where under subsection (1) a reviewing authority substitutes for the conviction of the original offence a conviction of another service offence, the reviewing authority may take such action in relation to the convicted person as could have been taken under Part IV by the service tribunal that convicted the convicted person of the original offence if that service tribunal had convicted him or her of that other service offence, but the reviewing authority:
(a) shall not impose a punishment for that other service offence or make a reparation order with respect to that other service offence unless a punishment was imposed for the original offence or a reparation order was made with respect to the original offence, as the case may be; and
(b) shall not impose a punishment for that other service offence that is more severe than the punishment that was imposed for the original offence and shall not make a reparation order with respect to that other service offence that is for an amount that exceeds the amount of the reparation order that was made with respect to the original offence.
(1) Where in a review it appears to the reviewing authority that the action taken by a service tribunal under Part IV (whether by the imposition of a punishment or the making of an order or both) in relation to a convicted person:
(a) is wrong in law; or
(b) is excessive;
the reviewing authority shall quash the punishment or revoke the order or both quash the punishment and revoke the order, as the case may be.
(2) Where:
(a) a court martial or a Defence Force magistrate has taken a service offence into consideration in relation to a convicted person under section 77 and the conviction of the convicted person is quashed; or
(b) a reviewing authority considers that a court martial or a Defence Force magistrate, in purporting to take a service offence into consideration in relation to a convicted person under section 77, exceeded the powers conferred by that section;
the reviewing authority shall annul the taking into consideration of that service offence and, thereupon, that service offence shall be deemed not to have been taken into consideration by the court martial or Defence Force magistrate.
(3) Where in a review it appears to the reviewing authority that a summary authority has imposed an elective punishment on a convicted person otherwise than in accordance with section 131, the reviewing authority shall quash the punishment.
(5) Where a reviewing authority quashes a punishment or revokes an order under subsection (1) or (3) in relation to a convicted person, the reviewing authority may take such action in relation to the convicted person as could have been taken under Part IV by the service tribunal that convicted the convicted person of the service offence of which he or she was convicted, but the reviewing authority shall not:
(a) impose a punishment that is more severe than the punishment that was imposed by the service tribunal;
(b) if the punishment imposed by the service tribunal was a custodial punishment—impose a punishment other than a custodial punishment;
(c) if the punishment imposed by the service tribunal was not a custodial punishment—impose a custodial punishment; or
(d) if the service tribunal made a reparation order—make a reparation order for an amount that exceeds the amount of the reparation order that was made by the service tribunal.
(6) Where in a review it appears to the reviewing authority that a service tribunal has imposed a punishment of imprisonment on a convicted person and has not fixed a non‑parole period during which the person is not to be eligible to be released on parole under the provisions of the
Crimes Act 1914 in their application, by virtue of subsection 72(1) of this Act, to the service tribunal, the reviewing authority may fix such a non‑parole period.(7) Section 72 applies in relation to the fixing of a non‑parole period under subsection (6) as if the reviewing authority were the service tribunal concerned.
(8) Where in a review it appears to the reviewing authority that a service tribunal that has imposed a punishment of detention on a convicted person should have made an order under subsection 78(1) suspending that punishment, the reviewing authority may, if he or she thinks fit, make an order suspending that punishment or such part of that punishment as has not been served.
(9) Where a reviewing authority makes an order suspending a punishment of detention or such part of a punishment of detention as has not been served, the punishment, or that part of the punishment, does not begin, and shall not be put into execution, while the suspension is in force.
In this Division,
review means a review under this Part of proceedings before a court martial or a Defence Force magistrate that have resulted in a prescribed acquittal.
(1) Subject to subsection (4), where in a review it appears to the reviewing authority:
(a) that the prescribed acquittal is unreasonable, or cannot be supported, having regard to the evidence;
(b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred;
(c) that there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or
(d) that, in all the circumstances of the case, the prescribed acquittal is unsafe or unsatisfactory;
the reviewing authority shall quash the prescribed acquittal.
(2) Subject to subsection (4), where in a review it appears to the reviewing authority that there is evidence that:
(a) was not reasonably available during the proceedings;
(b) is likely to be credible; and
(c) would have been admissible in the proceedings;
the reviewing authority shall receive and consider that evidence and, if the reviewing authority considers that the prescribed acquittal cannot be supported having regard to that evidence, the reviewing authority shall quash the prescribed acquittal.
(3) Where in a review it appears to the reviewing authority that the service tribunal should have found that the person, by reason of unsoundness of mind, was unable to understand the proceedings against him or her and accordingly was unfit to stand trial, the reviewing authority shall quash the prescribed acquittal and direct that the person be kept in strict custody until the pleasure of the Governor‑General is known.
(4) A reviewing authority shall not quash a prescribed acquittal under subsection (1) or (2) if there are grounds for quashing the prescribed acquittal under subsection (3).
For the purposes of this Act, where a reviewing authority quashes a prescribed acquittal of a person of a service offence and does not give a direction under subsection 164(3) with respect to the person or order a new trial of the person for the offence, the person shall be deemed to have been acquitted of the offence without qualification.
(1) Where in a review the reviewing authority:
(a) quashes a prescribed acquittal that was recorded within the preceding 6 months; and
(b) considers that, in the interests of justice, the person who was acquitted should be tried again for the service offence of which the person was acquitted;
the reviewing authority may order a new trial of the person for that offence.
(2) An order under subsection (1) lapses unless the new trial commences within a period of 6 months commencing on the day on which the order is made.
Repeal the subsections.
Repeal the subsection, substitute:
(2) In subsection (1),
appropriate period , in relation to proceedings before a service tribunal that have resulted in a conviction or a prescribed acquittal, means the period of 30 days commencing immediately after:
(a) the day on which the results of a review under section 152 of the
Defence Force Discipline Act 1982 of the proceedings are notified to the convicted person or the prescribed acquitted person; or(b) the last day of the period of 30 days after the conviction or prescribed acquittal;
whichever is earlier.
Repeal the section, substitute:
Where:
(a) the Tribunal dismisses an appeal against a conviction or an application for leave to appeal against a conviction; and
(b) it appears to the Tribunal that the appeal or application was frivolous or vexatious;
the Tribunal may order that any punishment of imprisonment or detention imposed on the appellant or applicant in the proceedings in relation to which the appeal or application was brought shall be taken to commence on the day on which the Tribunal dismisses the appeal or application.
Omit “against a conviction or prescribed acquittal”.
Omit “the Australian Military Court”, substitute “the court martial or the Defence Force magistrate”.
Omit “against a conviction or prescribed acquittal”.
Omit “the Australian Military Court”, substitute “the court martial or the Defence Force magistrate”.
Omit “offender”.
Omit “against a conviction or prescribed acquittal”.
Omit “the Australian Military Court”, substitute “the court martial or the Defence Force magistrate”.
Omit “offender” (wherever occurring).
Omit “the Military Judge or the military jury”, substitute “the court martial or the Defence Force magistrate”.
Omit “the Australian Military Court”, substitute “the court martial or the Defence Force magistrate”.
Omit “the Military Judge or the military jury, by reason of its, his or her”, substitute “the court martial or the Defence Force magistrate, by reason of its or his or her”.
Omit “the Australian Military Court if the Court had convicted the person”, substitute “court martial or the Defence Force magistrate that convicted the convicted person of the original offence if the court martial or Defence Force magistrate had convicted him or her”.
Repeal the subsection.
Repeal the section.
Omit “the Australian Military Court”, substitute “the court martial or the Defence Force magistrate”.
Omit “offender” (wherever occurring).
Omit “a question of law referred to the Tribunal under section 19A or”.
Omit “offender”.
Repeal the section, substitute:
Where, upon the hearing of an appeal under this Act against a conviction or a prescribed acquittal by a court martial or a Defence Force magistrate, the Tribunal thinks it necessary or expedient in the interests of justice to do so, the Tribunal may direct such steps to be taken as are necessary to obtain from the person who was the judge advocate of the court martial or from the Defence Force magistrate, a report giving his or her opinion upon the case, or upon a point arising in the case, or containing a statement as to any facts the ascertainment of which appears to the Tribunal to be material for the purpose of the determination of the appeal.
Omit “by an offender appellant”.
Omit “offender” (second and third occurring).
Repeal the subsection.
Omit “offender” (wherever occurring).
Omit “or (1A)”.
Omit “an appeal by an offender appellant or an application for leave to appeal by an offender appellant, it may, if it thinks fit, order the offender appellant”, substitute “an appeal or an application for leave to appeal, it may, if it thinks fit, order the appellant”.
Omit “offender”.
Note: The heading to section 39 is altered by omitting “
offender ”.
Omit “an appeal before the Tribunal to which he or she is a party”, substitute “his or her appeal before the Tribunal”.
Omit “offender”.
Omit “an appeal to which he or she is a party” substitute “his or her appeal”.
Omit “offender”.
Omit “by an offender appellant”.
Note: The heading to section 42 is altered by omitting “
by offender appellants ”.
Omit “the offender appellant or the Director of Military Prosecutions”, substitute “appellant or Chief of the Defence Force or a service chief”.
Omit “offender appellant or the Director of Military Prosecutions”, substitute “appellant or Chief of the Defence Force or a service chief”.
Omit “the Australian Military Court”, substitute “a court martial or a Defence Force magistrate”.
Omit “offender”.
Omit “(other than the Director of Military Prosecutions)”.
Omit “offender”.
Omit “, a prescribed acquittal, a punishment imposed or a court order made by the Australian Military Court”, substitute “or a prescribed acquittal by a court martial or a Defence Force magistrate”.
Repeal the subparagraphs, substitute:
(i) a record of the proceedings of the court martial or Defence Force magistrate; and
(ii) a record of any review with respect to the proceedings of the court martial or Defence Force magistrate; and
(iii) documents that were before the court martial, Defence Force magistrate or reviewing authority in connection with the proceedings, or the review of the proceedings, as the case may be; and
Repeal the paragraph.
249
Subsection 4(1) (paragraph (a) of the definition of Judge ) Omit “or the Australian Military Court”.
Repeal the definition, substitute:
court includes a court martial or similar military tribunal.
Repeal the definition, substitute:
court includes a court martial or similar military tribunal.
In this Schedule:
AMC means the Australian Military Court purportedly established by Division 3 of Part VII of the old Defence Force Discipline Act.
amended Defence Force Discipline Act means theDefence Force Discipline Act 1982 as amended by this Act.
commencement day means the day on which this Act commences.
DFDAT means the Defence Force Discipline Appeal Tribunal established by theDefence Force Discipline Appeals Act 1955 .
High Court decision date means 26 August 2009.
old Defence Force Discipline Act means theDefence Force Discipline Act 1982 as purportedly in force immediately before the High Court decision date.
Registrar has the same meaning as in the old Defence Force Discipline Act.
Part IV order means a restitution order or a reparation order purportedly made under Part IV of the old Defence Force Discipline Act.
(1) The amendments made by Schedule 1 apply in relation to a service offence committed by a person on or after the commencement day.
(2) The amendments made by Schedule 1 apply in relation to a service offence committed by a person before the commencement day if:
(a) before the commencement day, the person had not been charged with the service offence under the old Defence Force Discipline Act; or
(b) before the commencement day, the person had been charged with the service offence under the old Defence Force Discipline Act, but neither a summary authority nor the AMC had taken, or had purportedly taken, any action in relation to the charge; or
(c) the amendments apply because of the operation of the transitional provisions of Part 2 of this Schedule.
Note: The transitional provisions deal with particular situations where a person had been charged with a service offence before the commencement day, but the amendments are to apply (for example, because action in relation to the offence is underway but had not been completed on or before the commencement day).
3
Charges purportedly referred to the AMC other than as a result of an election—no punishment imposed (1) This item applies to a charge of a service offence against a person if:
(a) on or before the High Court decision date, the Director of Military Prosecutions requested the Registrar to refer the charge to the AMC; and
(b) the request was not made under subsection 103(4) of the old Defence Force Discipline Act (which deals with referrals resulting from an election); and
(c) either:
(i) the AMC had not, on or before the High Court decision date, purported to convict the person, dismiss the charge or acquit the person; or
(ii) the AMC had, on or before the High Court decision date, purported to convict the person, but had not, on or before that date, purported to impose a punishment on the person or make a Part IV order in relation to the charge.
(2) The charge is taken to be referred to the Director of Military Prosecutions on the commencement day, and the Director of Military Prosecutions may deal with the charge under section 103 of the amended Defence Force Discipline Act.
4
Charges purportedly referred to the AMC as a result of an election etc.—no punishment imposed (1) This item applies to a charge of a service offence against a person if:
(a) on or before the High Court decision date:
(i) the Director of Military Prosecutions requested the Registrar under subsection 103(4) of the old Defence Force Discipline Act (which deals with referrals resulting from an election) to refer the charge to the AMC; or
(ii) the person had made an election under section 111C or 131AA of the old Defence Force Discipline Act in relation to the charge, but the Director of Military Prosecutions had not, on or before that date, taken action under subsection 103(4) of the old Defence Force Discipline Act in relation to the charge; and
(b) the AMC had not, on or before the High Court decision date, purported to convict the person, dismiss the charge or acquit the person.
(2) As soon as reasonably practicable after the commencement day, action must be taken under Part VII of the amended Defence Force Discipline Act to refer the charge to a summary authority to be dealt with as if no action in relation to the charge had been, or had purportedly been taken, under Part VII of the old Defence Force Discipline Act.
(1) This item applies to an appeal purportedly made to the AMC against any of the following:
(a) a person’s conviction by a summary authority of a service offence;
(b) a punishment imposed, or a Part IV order made, by the summary authority in respect of a person’s conviction by a summary authority for a service offence;
if:
(c) the appeal was purportedly made on or before the High Court decision date; and
(d) in the case of an appeal against a conviction—the AMC had not, on or before that date, purportedly done any of the following:
(i) dismissed the appeal;
(ii) quashed the conviction; and
(e) in the case of an appeal against a punishment imposed, or a Part IV order made—the AMC had not, on or before that date, purportedly done either of the following:
(i) confirmed, quashed or varied the punishment;
(ii) confirmed, revoked or varied the Part IV order.
(2) The person may lodge with a competent reviewing authority a petition for a review of the proceedings of the summary authority under section 153 of the amended Defence Force Discipline Act.
(3) The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.
(4) If the person lodges a petition under section 153 of the amended Defence Force Discipline Act because of the operation of this item, then sections 153, 154, 155, 156 and 162, and Division 5 of Part VIIIA, and any other provisions of the amended Defence Force Discipline Act necessary for the effectual operation of those provisions, apply to the review.
This Division does not apply to, or in relation to, the proceedings of a summary authority in relation to a charge of a service offence against a person if the person was required to be given the opportunity to elect to have the charge of the service offence purportedly tried by the AMC.
7
Summary authority proceedings started but not completed before commencement
(1) This item applies if:
(a) before the commencement day, a person had been charged with a service offence under the old Defence Force Discipline Act; and
(b) a summary authority had commenced dealing with the charge; and
(c) on or before the commencement day:
(i) the proceedings of the summary authority had not been completed; or
(ii) the proceedings of the summary authority had been completed, but no action had been taken by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act in relation to the proceedings of the summary authority.
(2) If the proceedings of the summary authority had not been completed on or before the commencement day, the proceedings of the summary authority are to continue under the amended Defence Force Discipline Act.
(3) If the proceedings of the summary authority had been completed on or before the commencement day, but no action had been taken under Part VIIIA of the old Defence Force Discipline Act in relation to the proceedings of the summary authority:
(a) a reviewing authority must, as soon as reasonably practicable on or after the commencement day, take action under Part VIIIA of the amended Defence Force Discipline Act in relation to the charge; and
(b) that Part applies in relation to the charge on and after the commencement day.
8
Summary authority proceedings—review proceedings started but not completed before commencement (1) This item applies if, on or before the commencement day:
(a) a person was charged with a service offence; and
(b) a summary authority:
(i) imposed, or purported to impose, a punishment on the person; or
(ii) made, or purported to make, a Part IV order in relation to the person; and
(c) action had commenced in relation to the proceedings of the summary authority by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act, but review under that Part had not been completed.
(2) A reviewing authority must, as soon as reasonably practicable on or after the commencement day, take action in relation to the proceedings of the summary authority under Part VIIIA of the amended Defence Force Discipline Act as if no action had been taken, on or before the commencement day, by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act and that Part applies in relation to the proceedings of the summary authority.
9
Trials resulting in punishment by a summary authority—review proceedings completed before commencement day (1) This item applies if, during the period beginning on 20 September 2008 and ending on the commencement day:
(a) a person was charged with a service offence; and
(b) a summary authority:
(i) imposed, or purported to impose, a punishment on the person; or
(ii) made, or purported to make, a Part IV order in relation to the person; and
(c) on or before the commencement day, review under Part VIIIA of the old Defence Force Discipline Act of the proceedings of the summary authority had been completed.
(2) The person may lodge with a competent reviewing authority a petition for review of the proceedings or purported proceedings of the summary authority, so far as those proceedings related to the punishment or Part IV order, under section 153 of the amended Defence Force Discipline Act.
(3) The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.
(4) If the person lodges a petition for a review because of the operation of this item, sections 153, 154, 155, 156 and 162 and Division 5 of Part VIIIA, and any other provision of the amended Defence Force Discipline Act necessary for the effectual operation of those provisions, apply to the review.
(5) A person may only lodge a petition for a review of proceedings or purported proceedings of a summary authority, so far as those proceedings related to a punishment or Part IV order, if the person is not entitled to lodge a such a petition in relation to the punishment or Part IV order because of the operation of another provision of this Schedule.
(6) If:
(a) before 20 September 2008 a person was charged with a service offence; and
(b) no action to deal with the charge had been taken before that day;
this item applies as if the person had been charge with the offence on 20 September 2008.
(1) This item applies if:
(a) before the commencement day, a summary authority had ordered under section 176 of the old Defence Force Discipline Act that the execution of a punishment be stayed pending the determination of a purported appeal to the AMC; and
(b) the AMC had not purportedly determined the appeal.
(2) The stay of the punishment is taken, by force of this item, to continue in force until the end of the period of 60 days beginning on the commencement day.
(3) This item does not prevent a reviewing authority from ordering that the execution of the punishment is to be stayed in whole or in part pending the determination of a review under Part VIIIA of the amended Defence Force Discipline Act that is conducted because of the operation of item 5.
In this Schedule:
AMC means the Australian Military Court purportedly established by Division 3 of Part VII of the old Defence Force Discipline Act.
amended Defence Force Discipline Act means theDefence Force Discipline Act 1982 as amended by this Act.
commencement day means the day on which this Act commences.
High Court decision date means 26 August 2009.
member has the same meaning as in theDefence Act 1903 .
old Defence Force Discipline Act means theDefence Force Discipline Act 1982 as purportedly in force immediately before the High Court decision date.
Permanent Forces has the same meaning as in theDefence Act 1903 .
Registrar has the same meaning as in the old Defence Force Discipline Act.
Remuneration Tribunal means the Tribunal established by subsection 4(1) of theRemuneration Tribunal Act 1973 .
2
Current Chief Military Judge automatically becomes the Chief Judge Advocate (1) This item applies to the person who purportedly held office as Chief Military Judge under section 188AC of the old Defence Force Discipline Act immediately before the High Court decision date.
Deemed appointment as Chief Judge Advocate (2) The person is taken to have been appointed on the commencement day, by force of this item, as the Chief Judge Advocate, as if the person had been duly appointed by the Judge Advocate General under section 188A of the amended Defence Force Discipline Act.
Term and remuneration
(3) The person:
(a) is taken to have been appointed under section 188A of the amended Defence Force Discipline Act, by instrument in writing:
(i) for the period of 8 years beginning on the commencement day; or
(ii) if a day before the end of that 8 year period is declared to be the termination day under item 8 of this Schedule—for the period beginning on the commencement day and ending at the beginning of the termination day; and
(b) is taken to have been appointed on the same terms and conditions as to remuneration, allowances and recreation leave and other leave entitlements as purportedly applied to the person immediately before the High Court decision date, subject to regulations made under subitem (4).
(4) Despite section 188E of the amended Defence Force Discipline Act, the person:
(a) is entitled to such remuneration and allowances as are prescribed, which must not be less in value than the remuneration and allowances that purportedly applied to the person immediately before the High Court decision date; and
(b) is to have such recreation leave and other leave entitlements as are prescribed, which must not be less in value than the recreation leave and other leave entitlements that purportedly applied to the person immediately before the High Court decision date.
Person does not hold a public office (5) The person does not hold a public office within the meaning of the
Remuneration Tribunal Act 1973 .
Resignation (6) The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.
No employment outside the ADF (7) The person must not engage in employment outside the duties of his or her office as Chief Judge Advocate, other than as a member of the Australian Defence Force.
Application of certain provisions (7A) Subsections 188A(2) and (3) of the amended Defence Force Discipline Act do not apply to the appointment, by force of this item, of the person as the Chief Judge Advocate.
(8) To avoid doubt, sections 188B, 188C and 188D of the amended Defence Force Discipline Act apply to the person.
Certain provisions do not apply (9) To avoid doubt, the person is not entitled to remuneration, salary, allowances, leave, benefits or any other entitlements (however described) under a determination made under section 58B or 58H of the
Defence Act 1903 .
(1) This item applies in relation to the person who was taken to have been appointed as the Chief Judge Advocate by force of item 2 of this Schedule, if:
(a) a day before the end of the 8 year period referred to in subparagraph (3)(a)(i) of that item is declared to be the termination day under item 8 of this Schedule; and
(b) the person’s appointment by force of item 2 of this Schedule continued to be in force immediately before the termination day.
(2) Subject to subitems (3), (4) and (6), the person is taken to be entitled to be paid the amount that he or she would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal if:
(a) the office of Chief Military Judge had existed on the High Court decision date; and
(b) the person’s appointment to that office had been prematurely terminated on the High Court decision date, other than:
(i) for reasons of misbehaviour or unsatisfactory performance; or
(ii) on account of mental or physical incapacity, if the person was entitled to receive invalidity retirement benefits under Commonwealth superannuation legislation; and
(c) the Commonwealth had not offered the person suitable alternative employment after that premature termination.
(3) The person is not entitled to be paid an amount under subitem (2) if, before the termination day, the Commonwealth offers the person employment that would have been suitable alternative employment in relation to the office that the person purportedly held as Chief Military Judge.
(4) The person is not entitled to be paid an amount under subitem (2) if, before the termination day, the person ceases to be a member of the Permanent Forces.
(5) If a person is paid an amount under subitem (2), the person is taken to have completed a period of service for the purposes of regulation 64 of the
Defence (Personnel) Regulations 2002 at the time the amount is paid.(6) For the purposes of working out the amount that the person would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal, the months of service that would, apart from this subitem, remain is reduced by the number of months during which the person held office as Chief Judge Advocate on or after the commencement day.
(7) The amount payable under subitem (2) is to be reduced by the amount, if any, that the person has been, or is entitled to be, paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal in respect of the premature termination of the person’s appointment to the office of Chief Military Judge, and may be reduced to an amount of zero.
4
Current Military Judges automatically become members of the judge advocates’ panel
Application (1) This item applies to a person who purportedly held office as a Military Judge under section 188AP of the old Defence Force Discipline Act immediately before the High Court decision date.
Deemed appointment as judge advocate (2) The person is taken to have been appointed on the commencement day, by force of this item, as a member of the judge advocates’ panel, as if the person had been duly appointed by the Chief of the Defence Force under subsection 196(2) of the amended Defence Force Discipline Act.
Term and remuneration
(3) The person:
(a) is taken to have been appointed under section 196 of the amended Defence Force Discipline Act, by instrument in writing, for:
(i) the period of 8 years beginning on the commencement day; or
(ii) if a day before the end of that 8 year period is declared to be the termination day under item 8 of this Schedule—for the period beginning on the commencement day and ending at the beginning of the termination day; and
(b) is taken to have been appointed on the same terms and conditions as to remuneration, allowances and recreation leave and other leave entitlements as purportedly applied to the person immediately before the High Court decision date, subject to regulations under subitem (4).
(4) The person:
(a) is entitled to such remuneration and allowances as are prescribed, which must not be less in value than the remuneration and allowances that purportedly applied to the person immediately before the High Court decision date; and
(b) is to have such recreation leave and other leave entitlements as are prescribed, which must not be less in value than the recreation leave entitlements that purportedly applied to the person immediately before the High Court decision date.
Person does not hold a public office (5) The person does not hold a public office within the meaning of the
Remuneration Tribunal Act 1973 .
Resignation (6) The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.
No employment outside the ADF (7) The person must not engage in employment outside the duties of his or her office as a member of the judge advocates’ panel, other than as a member of the Australian Defence Force.
Oath (8) The person is taken to have made and subscribed an oath in accordance with Schedule 5 of the amended Defence Force Discipline Act.
Application of certain provisions (8A) Subsection 196(2A) of the amended Defence Force Discipline Act does not apply to the appointment, by force of this item, of the person as a member of the judge advocates’ panel.
(9) To avoid doubt, subsection 196(2B) of the amended Defence Force Discipline Act applies to the person.
Certain provisions do not apply (10) To avoid doubt, the person is not entitled to remuneration, salary, allowances, leave, benefits or any other entitlement (however described) under a determination under section 58B or 58H of the
Defence Act 1903 .
5
Benefits on member of judge advocates’ panel ceasing to hold office (1) This item applies in relation to a person who was taken to have been appointed as a member of the judge advocates’ panel by force of item 4 of this Schedule, if:
(a) a day before the end of the 8 year period referred to in subparagraph (3)(a)(i) of that item is declared to be the termination day under item 8 of this Schedule; and
(b) the person’s appointment by force of item 4 of this Schedule continued to be in force immediately before the termination day.
(2) Subject to subitems (3) and (4), the person is taken to be entitled to be paid the amount that the person would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal if:
(a) the office of Military Judge had existed on the High Court decision date; and
(b) the person’s appointment to that office had been prematurely terminated on the High Court decision date, other than:
(i) for reasons of misbehaviour or unsatisfactory performance; or
(ii) on account of mental or physical incapacity, if the person was entitled to receive invalidity retirement benefits under Commonwealth superannuation legislation; and
(c) the Commonwealth had not offered the person suitable alternative employment after that premature termination.
(3) The person is not entitled to be paid an amount under subitem (2) if, before the termination day, the Commonwealth offers the person employment that would have been suitable alternative employment in relation to the office that the person purportedly held as a Military Judge.
(4) The person is not entitled to be paid an amount under subitem (2) if, before the termination day, the person ceases to be a member of the Permanent Forces.
(5) If a person is paid an amount under subitem (2), the person is taken to have completed a period of service for the purposes of regulation 64 of the
Defence (Personnel) Regulations 2002 at the time the amount is paid.(6) For the purposes of working out the amount that the person would have been entitled to be paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal, the number of months of service that would, apart from this subitem, remain is to be reduced by the number of months during which the person held office as a judge advocate on or after the commencement day.
(7) The amount under subitem (2) is to be reduced by the amount, if any, that the person has been, or is entitled to be, paid under Clause 2.7.3 of Determination 2009/07 of the Remuneration Tribunal in respect of the premature termination of the person’s appointment as a Military Judge, and may be reduced to an amount of zero.
6
Current Registrar of the AMC automatically becomes the Registrar of Military Justice (1) This item applies to the person who purportedly held office as Registrar of the AMC under section 188FB of the old Defence Force Discipline Act immediately before the High Court decision date.
(2) The person is taken to have been appointed on the commencement day, by force of this item, as the Registrar of Military Justice, as if the person had been duly appointed by the Minister under section 188FB of the amended Defence Force Discipline Act.
(3) The person:
(a) is taken to have been appointed under section 188FB of the amended Defence Force Discipline Act, by instrument in writing, for:
(i) the period of 2 years beginning on the commencement day; or
(ii) if the office of Registrar ceases to exist before the end of that 2 year period—the period beginning on the commencement day and ending when that office ceases to exist; and
(b) is taken to have been appointed on the same terms and conditions as purportedly applied to the person immediately before the High Court decision date.
(4) The person is taken to have made and subscribed an oath in accordance with Schedule 4 of the amended Defence Force Discipline Act.
(5) To avoid doubt, the person is not entitled to remuneration, salary, allowances, leave, benefits or any other entitlements (however described) under a determination made under section 58B or 58H of the
Defence Act 1903 .
7
Waiver relating to amounts paid to purported office holders (1) This item applies to amounts paid by the Commonwealth purportedly by way of remuneration or allowances or other amounts to a person who purportedly held office as the Chief Military Judge, Military Judge or the Registrar of the Australian Military Court immediately before the High Court decision date, during the period:
(a) beginning on 1 October 2007; and
(b) ending on the commencement of this item.
(2) If those offices did not exist during that period, the Commonwealth’s right to recover an amount that would, apart from this item, be recoverable only on the basis of the non‑existence of those offices is, by force of this item, waived.
(1) The Minister may declare, in writing, a specified day to be the
termination day for the purposes of this Schedule. The day must be after the day the declaration is made and before the end of the 8 year period beginning on the commencement day.(2) A declaration made under subitem (1) is a legislative instrument, but section 42 (disallowance) of the
Legislative Instruments Act 2003 does not apply to the declaration.
1
Saving provisions relating to section 5A of the Defence Force Discipline Act 1982 (1) If, immediately before the commencement of this item, an appointment made under section 5A of the
Defence Force Discipline Act 1982 was in force, the appointment has effect after that commencement as if it had been made under section 5A of that Act as amended by this Act.(2) If, immediately before the commencement of this item, regulations made for the purposes of section 5A of the
Defence Force Discipline Act 1982 were in force, the regulations have effect after that commencement as if they had been made for the purposes of section 5A of that Act as amended by this Act.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
A = Act | o = order(s) |
ad = added or inserted | Ord = Ordinance |
am = amended | orig = original |
amdt = amendment | par = paragraph(s)/subparagraph(s) |
c = clause(s) | /sub‑subparagraph(s) |
C[x] = Compilation No. x | pres = present |
Ch = Chapter(s) | prev = previous |
def = definition(s) | (prev…) = previously |
Dict = Dictionary | Pt = Part(s) |
disallowed = disallowed by Parliament | r = regulation(s)/rule(s) |
Div = Division(s) | Reg = Regulation/Regulations |
exp = expires/expired or ceases/ceased to have | reloc = relocated |
effect | renum = renumbered |
F = Federal Register of Legislative Instruments | rep = repealed |
gaz = gazette | rs = repealed and substituted |
LI = Legislative Instrument | s = section(s)/subsection(s) |
LIA = | Sch = Schedule(s) |
(md) = misdescribed amendment can be given | Sdiv = Subdivision(s) |
effect | SLI = Select Legislative Instrument |
(md not incorp) = misdescribed amendment | SR = Statutory Rules |
cannot be given effect | Sub‑Ch = Sub‑Chapter(s) |
mod = modified/modification | SubPt = Subpart(s) |
No. = Number(s) | |
commenced or to be commenced |
Military Justice (Interim Measures) Act (No. 1) 2009 | 91, 2009 | 22 Sept 2009 | 22 Sept 2009 (s 2) | |
Military Justice (Interim Measures) Amendment Act 2011 | 82, 2011 | 25 July 2011 | 25 July 2011 (s 2) | — |
Military Justice (Interim Measures) Amendment Act 2013 | 130, 2013 | 1 July 2013 | Sch 1 (items 3, 7, 8): 22 Sept 2009 (s 2(1) items 3, 5) Remainder: 1 July 2013 (s 2(1) items 1, 2, 4, 6) | — |
Defence Legislation (Enhancement of Military Justice) Act 2015 | 106, 2015 | 30 June 2015 | Sch 3: 1 July 2015 (s 2) | — |
c 2.............................................. | am No 82, 2011; No 130, 2013; No 106, 2015 |
c 3.............................................. | am No 82, 2011; No 130, 2013; No 106, 2015 |
c 4.............................................. | am No 82, 2011; No 130, 2013; No 106, 2015 |
c 5.............................................. | am No 82, 2011; No 130, 2013; No 106, 2015 |
c 8.............................................. | ad No 82, 2011 |
am No 130, 2013; No 106, 2015 |
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