EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO 77
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE
AIR FORCE REGULATIONS (AMENDMENT)
The Air Force Regulations, made under the Air Force Act 1923, provide for various matters relating to the administration of the Air Force, including provisions relating to discipline.
For the purposes of discipline, regulations 13 and 13B of the Air Force Regulations, subject to adaptations made by schedules 3 and 4 of those Regulations, apply the Rules of Procedure made under the Imperial Air Force Act and the King’s Regulations and Air Council Instructions made under the Imperial Air Force (Constitution) Act.
Background
Under the Imperial provisions, as applied to the Air Force, a member charged with an offence before a service tribunal could plead that the offence with which he was charged had been condoned by a competent Air Force authority. If he substantiated his plea, it operated as a bar to his trial for that offence.
Condonation as a plea in bar of trial was peculiar to Army and Air Force Law.
When the Defence Force Discipline Act 1982 was being drafted, the view was taken that this plea lacked merit and section 143 of that Act accordingly abolishes the plea. It is expected that the Act (which will replace the Imperial legislation currently applicable to the Defence Force) will be brought into operation in 1985.
In the meantime, the continued existence of the plea of condonation had the potential to enable offenders who raised that plea to abort a trial for insubstantial reasons.
This Statutory Rule makes various amendments to the Air Force Regulations to abolish the plea of condonation. Similar amendments are effected to the Australian Military Regulations by a separate Statutory Rule.
Regulation 1 of the Statutory Rule inserts regulation 154 to provide that proceedings before a court-martial shall not be barred on the ground of condonation of the offence.
Regulations 2 and 3 of the Statutory Rule amend schedules 3 and 4 respectively to delete references, in the adaptations of the Rules of Procedure and the King’s Regulations and Air Council Instructions, to those provisions which permit the plea of condonation.
Commencement
The amendments have effect from the date of gazettal of the Statutory Rule.
Overview
The Air Force Regulations (Amendment) Statutory Rule 1984 (No. 77) was issued under the authority of the Minister for Defence to amend the Air Force Regulations, which are governed by the Air Force Act 1923. This amendment was introduced to address the anomaly in the existing disciplinary framework of the Air Force, particularly the continued existence of the plea of condonation, which allows a charged member to argue that an offence had been condoned by a competent authority, thus barring their trial for that offence. This plea was deemed to lack merit when the Defence Force Discipline Act 1982 was drafted, and Section 143 of that Act abolished the plea. The purpose of these amendments is to bring the Air Force Regulations into alignment with the new legislative framework and to prevent offenders from aborting trials on insubstantial grounds. The changes were made to abolish the plea of condonation by inserting a new regulation and amending the schedules to remove references to the condonation provisions. These amendments took effect from the date of gazettal of the Statutory Rule.
Scope and Application
The Air Force Regulations (Amendment) Statutory Rule 1984 No 77, issued by the authority of the Minister for Defence, amends the Air Force Regulations to abolish the plea of condonation in disciplinary proceedings. This amendment applies to all members of the Air Force who are subject to the Air Force Regulations and will affect any proceedings before a court-martial. The changes align with the Defence Force Discipline Act 1982, which abolishes the plea of condonation in line with the view that it lacked merit, and are set to be fully operational when the Act itself is brought into effect in 1985. Until then, this Statutory Rule ensures that the plea of condonation cannot be used to bar proceedings, addressing concerns that it could be raised for insubstantial reasons and thereby obstructing justice. The amendments, which include the insertion of regulation 154 and the amendment of schedules 3 and 4, have immediate effect from the date of gazettal.
Key Provisions
The main operative sections of these regulations, as detailed in Statutory Rules 1984 No 77, focus on the amendment of the Air Force Regulations to abolish the plea of condonation. Regulation 1 inserts regulation 154, which explicitly states that proceedings before a court-martial shall not be barred on the ground of condonation of the offence. This means that a member of the Air Force who is charged with an offence cannot plead that the offence has been condoned by a competent authority, thus preventing such a plea from serving as a bar to the trial. Regulation 2 and Regulation 3 amend schedules 3 and 4 respectively to remove references to the provisions that permit the plea of condonation in the adaptations of the Rules of Procedure and the King’s Regulations and Air Council Instructions.
These regulations impose specific obligations on the parties involved in the disciplinary process within the Air Force. Firstly, the members of the Air Force are obligated to adhere to the new rules that prohibit the use of the plea of condonation. This means they must be aware of the changes and cannot rely on the previous legal mechanism of condonation to avoid facing trial for their alleged offences. Furthermore, the courts-martial and tribunals are required to follow the amended regulations and ensure that the plea of condonation is not accepted as a valid defence. These obligations are crucial in maintaining the integrity of the disciplinary process and ensuring that all members are held accountable for their actions.
The regulations also establish clear consequences for any breach of these provisions. Although specific offences, penalties, or civil/criminal consequences are not detailed in the text, it is implied that any continued reliance on the plea of condonation would be in direct contravention of the new rules. In practical terms, this could lead to the nullification of the defence in court-martial proceedings, thereby exposing the member to the full consequences of the disciplinary action. Given that the plea of condonation has been abolished to prevent trials from being aborted for insubstantial reasons, any attempt to invoke this plea post-amendment could result in serious repercussions for the individual involved, including the potential for harsher penalties as a result of the trial proceeding.