EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 100
Issued by the authority of the Chief Military Judge
Defence Force Discipline Act 1982
Australian Military Court Rules 2007
Australian Military Court Amendment Rules 2008 (No. 1)
Section 149A of the Defence Force Discipline Act 1982 (the Act) provides that the Chief Military Judge may make rules of procedure, not inconsistent with the Act (including the regulations), providing for or in relation to the practice and procedure to be followed by the Australian Military Court exercising power under the Act.
The Australian Military Court Amendment Rules 2008 (No. 1) (the Rules) amend the Australian Military Court Rules 2007, providing the mechanism for the selection and appointment of military jurors and reserve military jurors and the procedure for military jury trials before the Australian Military Court. The amendments also expand the definitions applied in the Rules and the manner in which a person may make or change an election in relation to the mode of their trial and when an election will be automatically revoked.
Details of the Rules are outlined in the Attachment.
The Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).
Consultation was considered inappropriate and unnecessary, pursuant to section 18 of the LIA because the Rules relate to the service of members of the ADF.
The Rules commence on the day after they are registered.
ATTACHMENT
Details of the Australian Military Court Amendment Rules 2008 (No. 1)
Rule 1 identifies these rules as the Australian Military Court Amendment Rules 2008 (No. 1).
Rule 2 sets the commencement date as the day after they are registered.
Rule 3 provides for Schedule 1 to amend the Australian Military Court Rules 2007.
Schedule 1
Rule 4 is amended to expand the definitions.
Rule 10(2) is amended to allow the Registrar to consult and liaise with the services in relation to the appointment and administration of military juries. This follows the power given to the Registrar to consult and liaise on other matters.
Rule 12 is amended to ensure case management conferences are held in accordance with practice notes issued for this purpose.
Rule 24 is amended to allow for an election to be made orally, with the leave of a Military Judge, if the Military Judge is satisfied the accused understands the nature and effect of the election.
Rule 24A provides for a person to withdraw, change or make an election with the leave of the Military Judge and sets out matters to be considered in deciding whether to grant leave.
Rule 24B provides for the automatic revocation of an election by an accused person if an order for separate trials is made. If the accused wishes, a fresh election may be made immediately.
Rule 25 is amended to a correct a cross-referencing error.
Rule 33 is amended to provide that the Registrar must cause the selection, screening and appointment of military jurors and reserve military jurors in accordance with Part 9 of the Rules. If the Registrar believes that the particular circumstances of the military trial mean it is not reasonably practicable to follow this process, the Military Judge appointed to hear the matter must be informed and may make a determination under the special circumstances rule – 33C.
Rule 33A is inserted to ensure the validity of the constitution of a military jury despite non-compliance with Part 9 of the Rules, unless an objection to the non-compliance is made prior to the commencement of the trial.
Rule 33B determines liability to serve as a member of a military jury.
Rule 33C is inserted to allow a Military Judge to make a determination about persons liable to serve as a member of a military jury if special circumstances require it.
Rule 33D details categories of persons who are disqualified from serving on a military jury.
Rule 33E lists the members who are exempt from serving on a military jury.
Rule 33F creates an obligation for the Director of Military Prosecutions to disclose to the Registrar information to assist in the random selection, screening and appointment of military jurors and reserve military jurors.
Rule 33G provides the method by which the Registrar must randomly select potential military jurors.
Rule 33H provides the method by which the Registrar must select potential reserve military jurors.
Rule 33I outlines the screening process undertaken or caused to be undertaken by the Registrar for military jurors and reserve military jurors. This process must be conducted in accordance with procedures made by the Registrar. These procedures must be made publicly available.
Rule 33J prevents the Registrar from appointing a member as a military juror or reserve military juror if it is believed, on reasonable grounds, that the member is biased, is likely to be biased, or likely to be thought to be biased.
Rule 33K provides the Registrar with the power to excuse a potential military juror or reserve military juror before a summons is issued and details the criteria to which the Registrar must have regard in determining excusal.
Rule 35 is amended to provide that the Registrar appoints military jurors and reserve military jurors by summons, after the screening process has been concluded.
Rule 36 is amended to allow a member who has been issued with a summons by the Registrar to apply to the Registrar to be excused from serving on the military jury. The Registrar may withdraw the summons or refuse the application. If the Registrar refuses the application, the person may apply to the Military Judge for a review of the decision.
Rule 36A creates an obligation on a party to a military trial to disclose to the Registrar and other party to the proceeding, any information relating to the unsuitability of a person to serve as a juror at the trial, as soon as practicable.
Rule 36B obliges the Registrar to make the results of the screening process available to each party to a military trial, if requested.
Rule 42 is amended to remove the requirement that any case management conference has been completed before the Registrar issues a listing notice because a case management conference will not be held in all cases. Two additional requirements have been included. The first is for a listing notice to be accompanied by a list with the name, rank and service number of military jurors appointed. The second requires the Registrar to provide a copy of the listing notice, or any variation or replacement of it, to the Director of Defence Counsel Services in addition to the persons currently listed in the existing rule.
Rule 46 is amended to provide for the questioning of a military juror by the Military Judge on oath and, with leave, by the prosecution or defending officer.
Rule 48A allows a military jury to separate before they retire to consider their verdict unless the Military Judge orders otherwise.
Rule 58 is amended to give a Military Judge additional powers in dealing with a military jury. A Military Judge may permit the military jury to separate after they retire to consider their verdict. A Military Judge may also refuse to allow an exhibit to be left with military jurors for reasons such as the safety or security of the exhibit. The Military Judge may give the military jury a direction of law in writing and, if appropriate, provide the military jury with a copy of all or part of the transcript of the evidence at the trial.
Rule 58A provides a Military Judge with the power to question a military juror to determine whether the military juror has been exposed to prejudicial material.
Rule 58B allows a Military Judge to question a military juror to determine whether they have made improper inquiries about matters relating to the trial.