STATUTORY
RULES
1968 No. 79
REGULATIONS UNDER THE NAVAL
DEFENCE ACT 1910-1968.*
I, THE GOVERNOR-GENERAL
in and over the Commonwealth of Australia, acting with the. advice of the
Federal Executive Council, hereby make the following Regulations under the Naval
Defence Act 1910-1968.
Dated
this fourth day of July, 1968.
CASEY
Governor-General.
By His
Excellency's Command,
C. R. KELLY
Minister of State for
the Navy.
Amendments
of the Naval Forces Regulations
Modification,
&c, of the Naval Discipline Act.
1. Regulation 8 of the
Naval Forces Regulations is amended—
(a) by inserting before sub-regulation (1.)
the following sub-regulation:—
" (1a.) The Naval Discipline Act, in its application to and in
relation to the Naval Forces by virtue of section 34 of the Act, is modified—
(a) by omitting the heading
' Offences by civilians triable by court-martial 'immediately
preceding section 93; and
(b)by omitting the
heading immediately preceding section 96.";
(b)by omitting from
sub-regulation (1.) the words " modifications and adaptations " and
inserting in their stead the words " and modifications "; and
(c) by omitting from
sub-regulation (2.) the words " and adapted ".
* Notified in the Commonwealth Gazette on 1968.
Statutory Rules 1935, No. 133, as amended by Statutory Rules
1936, Nos. 63 and 119; 1938, Nos. 20, 46, 70 and 91; 1939, Nos.
26, 27, 72 and 143; 1940, Nos. 123, 135, 147, 197, 217 and 240; 1941,
Nos. 21, 187, 215 and 242; 1942, Nos. 48 and 202; 1943, No. 42; 1944, No.
63; 1946, Nos. 26 and32; 1947, Nos. 34 and 130; 1948, Nos. 37, 87 and
88; 1950, Nos. 4 and 26; 1951, Nos. 53, 66 and165; 1953, No. 19; 1954,
Nos. 28, 115 and 123; 1955, Nos. 5 and 16; 1956, No. 78; 1958, No. 88; 1959,
No. 38; 1961, Nos. 51 and 67; 1963, Nos. 113 and 145; 1964, Nos. 143 and 157;
1965, Nos. 56 and 67; 1967, No. 20; and 1968, No. 15.
22197/66—Price 15c 10/11.6.1968
The Schedule.
2.The Schedule to the
Naval Forces Regulations is repealed and the following Schedule inserted in its
stead:—
THE
SCHEDULE Regulation
8.
MODIFICATIONS OF THE NAVAL
DISCIPLINE ACT IN ITS APPLICATION TO THE NAVAL FORCES
Item No. | Section of Act | Extent of Modification |
1
| 16 | Omit from sub-section (2) " Defence Council ", insert
" Naval Board ". |
2
| 17 | Omit from sub-section (1) " regulations
made by the Defence Council ", insert " the Queen's Regulations and
Admiralty Instructions ".
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3
| 21 | Omit " regulations issued under
the authority of the Defence Council,", insert " directions issued
by the Naval Board, the Military Board or the Air Board or regulations
applying to, or in relation to, the Defence Force ".
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4
| 23 | Omit from paragraph (a)"
High Court ", insert " appropriate court in Australia authorized to
act as a Prize Court ".
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5
| 32 | Omit paragraph (a), insert the
following paragraph :— " (a) knowing that he has
no authority to do so, demands or obtains, or orders or procures another
person to obtain, any billets;". Omit from paragraphs (b) and (c)" in pursuance of such a requisition ".
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6
| 33 | Omit, insert the following section :— |
" 33.—(1) A person subject to this Act who—
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(a) knowing that he has no
authority to do so, gives directions for the furnishing of a vehicle in
pursuance of a requirement under section sixty-seven of the Defence Act 1903–1966,
or orders or procures another person to give directions of such a kind;
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(b)knowing that he has
no authority to do so, takes, or orders or procures another person to take,
possession of a vehicle required to be furnished under that section; or
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(c)takes or agrees to
take, or demands, from any person any money or thing as consideration for a
direction for the furnishing of a vehicle not being given, or possession of a
vehicle not being taken, under that section,
shall be liable to imprisonment for a term not
exceeding two years or any less severe punishment authorized by this Act. " (2) Subsection (1) of this
section applies in relation to any chattel, other than a vehicle, mentioned
in section sixty-seven of the Defence Act 1903–1966 as it applies in
relation to vehicles.".
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7
| 38 | Omit from sub-section (2) " in
pursuance of the Army Act, 1955, or the Air Force Act, 1955, or the law of
any colony ", insert " under the Naval Defence Act 1910–1968,
the Defence Act 1903–1966 or the Air Force Act 1923–1965 ".
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8
| 42 | After " if committed in England "
in sub-section (1) insert " or which is an offence against the law of
the Commonwealth ". After paragraph (b)of
sub-section (1) insert the following paragraph :— " (ba)in the case
of an offence against a law of the Commonwealth, to a punishment not
exceeding the maximum punishment provided by that law in respect of the
offence, or such less severe punishment as is authorized by the next two
succeeding sections;".
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9
| 43 | After paragraph (f) of
sub-section (1) insert the following paragraph :— " (fa)reduction in
rank;".
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Omit paragraph (k)of
sub-section (1). |
Omit paragraph (m) of
sub-section (1), insert the following paragraph :—
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" (m)such minor
punishments as are allowed by the Queen's Regulations and Admiralty
Instructions;".
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Omit sub-section (3), insert the
following sub-section :—
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" (3) In the application of this
section to a convicted person—
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(a)if the person is an
officer—paragraphs (f),(fa) and (m)of
subsection (1) do not apply; and
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(b)if the person is a
sailor—paragraphs (g) and (h)of that subsection
do not apply.".
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10
| 44 | Omit from sub-section (2) the words
" and an incapacity to serve Her Majesty again in any military, naval,
air force or civil service ", insert " and, in the case of a
sailor, reduction in rank ".
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Item No. | Section of Act | Extent of
Modification |
Omit sub-sections (3)
and (4), insert the following sub-sections :—
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" (3) A sentence of imprisonment for a term not exceeding
two years shall involve, in the case of a sailor, reduction in rank, and any
such sentence may be accompanied by a sentence of dismissal from Her Majesty's
service.
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" (4) Detention may be awarded for any term not exceeding
two years and shall, in all cases, involve reduction in rank.".
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Omit sub-sections (6) and (7), insert the following sub-sections :—
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" (6) Where a sailor is sentenced to a punishment referred
to in subsections (1) to (5) (inclusive) of
this section, the sentence shall involve deprivation of good conduct badges
and good service badges.
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" (7) A sentence of
a fine shall not exceed an amount equal to the active pay of the offender
for twenty-eight days.
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" (8) A sentence of a line shall not be imposed other than
as a fine of a stated sum of money.
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" (9) The amount of any fine imposed under this Act may, if
it is not recoverable under section one hundred and seven of the Defence
Act 1903–1966, be deducted from any pay due or which subsequently becomes
due to the offender.
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" (10) Subject to the next succeeding subsection, a sentence
of reduction in rank may reduce the offender to any rank not lower than the
rank determined by the Naval Board in relation to sailors of the branch or
category to which he belongs, and references in subsections (2), (3) and (4)
of this section to reduction in rank arc references to reduction to the rank
so determined.
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" (11) The power to
sentence an offender to reduction in rank shall include, in the case of a
sailor promoted temporarily to a higher rank the power to revert the sailor
to the rank held by him immediately before his temporary promotion.".
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11
| 45 | Omit from sub-section (2) " Subject to Standing Orders of
the commanding officer of any of Her Majesty's ships or naval establishments,
the following persons ", insert " The following persons ".
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Omit paragraph (i) of that sub-section, insert the following
paragraph :—
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" (b) in the case of a sailor—an officer subject to
this Act, a chief petty officer, petty officer or leading seaman subject to
this Act who is of superior rank or senior to him in the same rank, and any
sailor exercising authority as a member of the regulating staff or as a
member of the staff of the officer of the watch;".
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12
| 46 | Omit from
sub-section (2) " Defence Council ", insert " Naval Board ".
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13
| 47 | Omit from paragraph
(c) of sub-section (1) " in any part of Her Majesty's dominions ",
insert " whether within or outside Australia ".
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Omit from that sub-section " the uniform of any of Her
Majesty's naval forces ", insert " a uniform of the Naval Forces of
the Commonwealth ".
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Omit sub-sections (2) and (3), insert the following sub-section :— " (2) In this section, ' provost officer ' includes a
corresponding officer of any forces co-operating with the Defence
Force.".
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14
| 48 | Omit " the United Kingdom " (wherever occurring),
insert " Australia ".
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15
| 49 | Omit, insert the
following section :— |
" 49.—(1) Subject to this section, a sailor who is charged
with an offence to which this section applies may, in accordance with the
Queen's Regulations and Admiralty Instructions, be summarily tried and
punished by the commanding officer of any of Her Majesty's ships or naval
establishments.
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" (2) This section applies to any offence triable by
court-martial under this Act, other than an offence punishable by sentence of
death.
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" (3) A commanding officer shall not have power under this
section to award—
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(a)to a male person who is subject to this Act, a
sentence of—
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(i)
imprisonment;
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(ii)
dismissal with disgrace from Her Majesty's service; or
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(iii)
detention for any term exceeding three months; or
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(b) to a female
person who is subject to this Act, a sentence of—
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(i)
imprisonment;
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(ii)
dismissal with disgrace from Her Majesty's service;
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(iii)
detention; or
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(iv) a fine exceeding an amount equal to the active pay of the
person for fourteen days.
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Item No. | Section of Act | Extent of Modification |
" (4) The power conferred by
subsection (1) of this section on the commanding officer of a ship or naval establishment may, subject to
the next succeeding subsection, be exercised—
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(a) in respect of persons who
are on detached service on board a single tender or boat which is absent from
the ship or establishment—by the officer in command of that tender or boat;
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(b) in respect of persons who are on detached service on board
one of two or more tenders or boats which are absent from the ship or naval
establishment and are acting together—by the officer in immediate command of
these tenders or boats; and
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(c) in respect of other persons
absent from the ship or establishment on detached service either on shore or
elsewhere, by the officer in immediate command of these persons.
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" (5) The power conferred on an
officer by the last preceding subsection shall be subject to any conditions
imposed on the officer by the commanding officer of the ship or naval
establishment from which the officer is detached.
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" (6) The power conferred on an
officer by subsection (1) or subsection (4) of this section may, subject to
the next succeeding subsection and to any restrictions imposed by the Naval Board
or by that officer, be delegated by that officer to any officer under his
command who holds a rank not below the rank of lieutenant or corresponding
rank.
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" (7) An officer to whom a power
is delegated under the last preceding subsection shall not award a punishment other than a punishment
referred to in paragraph (i) or paragraph (m)of
subsection (1) of section forty-three of this Act.
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" (8) In this section, ' detached
service ' means service by a body of members while so separated from the ship or naval establishment to which the
body of members belongs that the commanding officer of that ship or
establishment cannot effectively exercise his disciplinary powers as
commanding officer of that body of members.".
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16
| 50 | Omit " Her Majesty's naval forces "
(wherever occurring), insert " the Naval Forces of the Commonwealth ".
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Omit from sub-section (1) " and of
any orders made thereunder ", insert " and to the Queen's
Regulations and Admiralty Instructions ".
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Omit sub-section (5), insert the
following sub-section :—
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" (5) The assembly, constitution,
procedure and practice of disciplinary courts shall be as provided by or
under the Queen's Regulations and Admiralty Instructions.".
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17
| 52 | Omit from sub-section (3) " the
United Kingdom ", insert " Australia ".
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18
| 53 | Omit sub-section (1), insert the
following sub-section: —
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" (1) Subject to the provisions of
this section, a court-martial may be ordered by the Naval Board or by any
officer of the Royal Navy or of the Naval Forces of the Commonwealth who is
authorized to do so by commission granted by the Governor-General.".
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Omit sub-sections (4) and (5). |
19
| 54 | Omit from sub-section (1) " Her
Majesty's naval forces ", insert " the Naval Forces of the
Commonwealth ".
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Omit from sub-section (2) " of the
armed forces of the Crown ", insert " part of the Defence Force of
the Commonwealth ".
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Omit from sub-section (3) " The
members ", insert " The president and other members ".
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Add at the end thereof the following sub-section :— |
" (9) An officer of the Royal Navy
or of the Royal New Zealand Navy is eligible to be appointed a member of a court-martial and, whenever such an
officer is so appointed, he has the same powers, functions and duties as if
he were an officer of the Naval Forces of the Commonwealth so
appointed.".
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20
| 55 | Omit from sub-section (1) " General
Orders made thereunder ", insert " the Queen's Regulations and
Admiralty Instructions ".
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21
| 56 | Omit from sub-section (1) " the
United Kingdom ", insert " Australia ".
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22
| 58 | Omit, insert the following section :— |
" 58.—(1) Subject to this Act, the
principles of law in force in the Australian Capital Territory with respect to criminal responsibility and
liability apply in relation to the commission of offences under this Act.
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Item No. | Section of Act | Extent of Modification |
" (2) The rules as to the
admissibility of evidence to be observed in proceedings before courts-martial
shall be the same as these observed in the Australian Capital Territory
Supreme Court exercising its criminal jurisdiction.
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" (3) In proceedings before a
court-martial, a person shall not be required to answer any question or to
produce any document that he would not be required to answer or produce in
proceedings in the Australian Capital Territory Supreme Court exercising its
criminal jurisdiction.
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" (4) A court-martial shall take
judicial notice of all matters of notoriety, including all matters within the
general service knowledge of the court, and of all other matters of which
judicial notice would be taken in the Australian Capital Territory Supreme
Court exercising its criminal jurisdiction.".
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23
| 59 | Omit from sub-section (6) " Courts-Martial
Appeal Court or of the Defence Council ", insert " Courts-Martial
Appeal Tribunal or of the Naval Board ".
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24
| 60 | |
25
| 61 | Omit sub-section (1), insert the
following sub-section :—
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" (1) Subject to this section and
to the provisions of the Queen's Regulations and Admiralty Instructions, a court-martial
shall sit in open court and in the presence of the accused.".
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26
| 62 | After sub-section (1) insert the following sub-sections :— |
" (1a)
The Judge-Advocate shall rule on any question of law or procedure that
arises during the course of a trial by court-martial and the court shall
follow that ruling.
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" (1b) Without limiting the generality of the meaning of the
expression ' question of law ', that expression as used in the last preceding
subsection shall be read as including—
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(a)a submission that
there is no case to answer; and
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(b)any question relating
to the admissibility of evidence, the joinder of charges or the trial of
persons jointly or separately.".
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27
| 63 | After " accused is " in paragraph (a)of
sub-section (1) insert " , by reason of insanity,". |
Omit from that sub-section " until
effect is given to the directions of the Defence Council ", insert
" until the pleasure of the Governor-General is known ".
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Omit from that sub-section " For
the purposes of this subsection ' unfit to stand his trial ' means under any
disability such as apart from the Criminal Procedure (Insanity) Act 1964
would constitute a bar to a trial on indictment in England or Wales.".
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Omit sub-section (2). |
Before " unfit " (wherever occurring) in sub-section
(3) insert " , by reason of insanity,". |
Add at the end thereof the following sub-sections :— |
" (4) Whore a court has, under
subsection (1) of this section, directed that a person be kept in custody
until the pleasure of the Governor-General is known, the Governor-General
may, by writing under his hand, order that the person be detained in safe
custody in such place and in accordance with such directions, if any, as the
Governor-General specifies in the order.
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" (5) The Governor-General may,
from time to time, by writing under his hand, vary an order made under the
last preceding subsection, either as to the place specified in the order or
the directions so specified, or as to both, in such manner as he thinks fit.
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" (6) The Governor-General may, by
writing under his hand, order that a person detained in safe custody in
pursuance of an order made under subsection (4) of this section (being a
person who, by reason of insanity, has been found not guilty of the offence
with which he was charged) be released from custody either unconditionally or
subject to such conditions as are specified in the order.
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Item No. | Section of Act | Extent of Modification |
" (7) Where the Governor-General
orders that a person be released from custody subject to conditions, the
Governor-General may, at any time, by writing under his hand—
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(a) vary or revoke any or all of
the conditions or impose additional conditions; or
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(b) revoke the order.
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" (8) Where an order made in
respect of a person under subsection (6) of this section is revoked or the
person fails to comply with a condition of such an order, the person may,
without warrant, be arrested by any provost officer or constable and may be
detained in safe custody in accordance with the order made in respect of the
person under subsection (4) of this section as if the order under subsection
(6) of this section had not been made.
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" (9) Upon the Governor-General
making an order under subsection (6) of this section that a person be
released from custody unconditionally, or upon the Governor-General revoking
all of the conditions subject to which the person has been released from
custody in pursuance of an order made under that subsection, the order made
under subsection (4) of this section in respect of the person ceases to have
effect.
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" (10) Where an order is made
under subsection (4) of this section in respect of a person who is, by reason
of insanity, unfit to stand his trial, he shall be detained until the
Governor-General is satisfied by the certificate in writing of not less than
two duly qualified medical practitioners that the person has ceased to be
insane and is fit to be tried, and, upon the Governor-General being so satisfied,
the Governor-General may, by writing under his hand, order the removal of the
person to such custody as is specified in the order so that he may be tried
for the offence with which he was charged.
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