Australian Military Regulations 1916 (Amendment)

Legislation au C1917L00062 Regulations Not in force Legislative Instrument

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STATUTORY RULES.

1917. No. 62.

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REGULATIONS UNDER THE DEFENCE ACT 1903-1915.

AUSTRALIAN MILITARY REGULATIONS 1916.

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 Defence Act 1903-1915 to come into operation forthwith.

Dated this seventh day of March, 1917.

R. M. FERGUSON,

Governor-General.

By His Excellency’s Command,

G. F. PEARCE,

Minister of State for Defence.

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Australian Military Regulations 1916.

Additions.

Regulation 643.—After Regulations 643 add the following new Regulations:—

“643a. (1) When a soldier of the Military Forces, whether on Active Service or not, is, within the limits of the Commonwealth, sentenced by Court Martial to penal servitude, imprisonment, or detention, the authority to whom the sentence is submitted for confirmation may, when confirming the sentence, suspend it.

(2) A Court Martial may recommend that a sentence be suspended under this regulation. Such recommendation and the reasons of the Court for making the same shall be entered in and form part of the proceedings.

(3) When any such sentence has been confirmed, any authority having for the time being power to confirm a like sentence of a Court, of the same class as that of the Court by which the sentence was passed may suspend the sentence:

Provided that the power conferred by this paragraph shall not within the limits of the Commonwealth be exercised by an authority inferior to the authority by whom the sentence was confirmed, except with the approval of that authority.

(4) The authority suspending a sentence shall state in the document evidencing the suspension that it is made under this regulation.

(5) A sentence may be suspended notwithstanding that it has been previously suspended and that the suspension has been revoked.

(6) When a sentence is suspended under this regulation the soldier shall be released and the currency of the sentence shall be suspended until the suspension is revoked.

(7) Where a sentence has been suspended under this regulation the case may at any time and shall at intervals of not more than

C.2020.—Price 3d.

three months be reconsidered by an authority for the time being having power to confirm a like sentence of a Court of the same class as that of the Court by which the sentence was passed, and such authority may on any such reconsideration revoke the suspension or remit the sentence or any part thereof:

Provided that the power conferred by this paragraph shall not within the limits of the Commonwealth be exercised by an authority inferior to the authority by whom the sentence was confirmed, except with the approval of that authority.

(8) Whenever the suspension of a sentence is revoked the suspension of the currency thereof shall cease and the soldier shall be committed to prison or into detention accordingly.

(9) The Commanding Officer of a soldier whose sentence is suspended may at any time and from time to time commit the soldier into Military custody pending the reconsideration of the suspension. When a soldier is committed into military custody under this paragraph the like procedure shall be followed to that prescribed when a soldier is committed into Military custody for an offence save that the account in writing of the offence for which the soldier is committed shall state that the soldier is committed under a suspended sentence. Whenever a soldier is committed into Military custody under this sub-regulation by a Commanding Officer he shall forthwith report the fact and the reasons for the committal to an authority having power to revoke the suspension. If the suspension is revoked the revocation shall take effect from the day on which the soldier was committed into Military custody. If the suspension is not revoked the soldier shall be released and the time during which he was in Military custody shall be counted towards service of the sentence.

(10) When a soldier whose sentence is suspended under this regulation is sentenced by a Court Martial for another offence the confirmation of the latter sentence shall operate as a revocation of suspension.

(11) This regulation shall apply as well to sentences confirmed before as to those confirmed after the making of this Regulation.

(12) The powers conferred by this Regulation shall be in addition to and not in derogation of any powers as to mitigation, remission, commutation or suspension of sentences conferred by the Army Act or by any other of these regulations.

643b. (1) With reference to any soldier of the Australian Imperial Force under a sentence of the nature and imposed under the circumstances mentioned in Sub-Section (1) of Section 1 of the Army (Suspension of Sentences) Act 1915, the Military Board may, in respect of any such sentence, when the soldier is within the limits of the Commonwealth, exercise the like power to that which is by Sub-Section (2) (b) of Section 1 of that Act conferred upon a “Superior Military Authority,” and may, in respect of any such sentence, when the soldier is within the said limits, and whether the sentence has been suspended by a “Superior Military Authority” under that Act or the Army Suspension of Sentences) Act 1916, or by the Military Board under this regulation, exercise the like powers to those which are, by Sub-Sections (5) and (6) and (7) of Section 1 of the Army (Suspension of Sentences) Act 1915, conferred upon a Superior Military Authority and a Competent Military Authority respectively.

(2) Every exercise by the Military Board of a power conferred by this Regulation shall have the same effect as if the like power had been duly exercised under the Army (Suspension of Sentences) Act 1915 by a Superior Military Authority or a Competent Military Authority.

(3) Every sentence on a soldier of the Australian Imperial Force suspended under either of the said Acts or under the Regulation may, at any time when the soldier is within the said limits, and shall at intervals of not more than three mouths a while the soldier is within the said limits, be reconsidered by the Military Board, and if on any such reconsideration it appears to the Board that the conduct of the soldier since his conviction has been such as to justify a remission of the sentence the Military Board shall remit it.

(4) The powers conferred by this Regulation shall be in addition to, and not in derogation of, any other power relating to mitigation, remission, commutation or suspension of sentences conferred by these regulations.

(5) Every provision in the Army Act which is inconsistent with this Regulation shall, to the extent only to which it is so inconsistent, not apply to the Military Forces. Every other of these Regulations which is inconsistent with this Regulation shall be read as subject to this Regulation.”

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Printed and Published for the Government of the Commonwealth of Australia by Albert J. Mullett, Government Printer for the State of Victoria.

Overview

The Australian Military Regulations 1916, enacted in 1917, were established under the Defence Act 1903-1915 to address the need for flexibility in the military justice system during times of conflict. This statutory rule was made by the Governor-General, acting on the advice of the Federal Executive Council, and came into immediate operation. The overarching policy objective was to provide mechanisms for the suspension and reconsideration of sentences imposed on soldiers within the limits of the Commonwealth, thereby ensuring that military discipline could be balanced with the exigencies of wartime. The regulations aimed to allow for the suspension of sentences by appropriate military authorities, taking into account the soldier's conduct and the potential for remission of the sentence based on subsequent behaviour.

Scope and Application

The Australian Military Regulations 1916, made under the Defence Act 1903-1915, pertain to the management and regulation of sentences handed down by military courts within the Commonwealth of Australia. These regulations apply to soldiers of the Military Forces, including those on active service or not, who are sentenced by a Court Martial to penalties such as penal servitude, imprisonment, or detention. The regulations allow for the suspension of these sentences by the authority that confirms the sentence, with specific provisions governing the circumstances under which a sentence may be suspended, the procedures for doing so, and the mechanisms for reconsidering and potentially revoking the suspension. The Military Board is also granted powers similar to those of a Superior Military Authority and Competent Military Authority under the Army (Suspension of Sentences) Act 1915, enabling them to suspend sentences and review them periodically to determine if a remission is warranted based on the soldier's conduct since conviction. These provisions apply uniformly across the Commonwealth, and any inconsistency with other regulations or the Army Act is resolved in favour of these regulations.

Key Provisions

The Australian Military Regulations 1916 introduce two significant provisions, Regulation 643a and Regulation 643b, which pertain to the suspension of sentences for soldiers within the Commonwealth. Regulation 643a (sub-section 1) provides that when a soldier is sentenced by a Court Martial to penal servitude, imprisonment, or detention, the authority confirming the sentence has the power to suspend it. The regulation outlines that a Court Martial may recommend suspension and provide reasons for doing so, which are to be recorded as part of the proceedings. Furthermore, it stipulates that the authority suspending the sentence must document that it is done under this regulation. This authority must also have the power to confirm a similar sentence from a court of the same class as the one that passed the original sentence. Regulation 643a (sub-section 2) states that the Military Board may exercise similar powers to suspend sentences for soldiers of the Australian Imperial Force within the Commonwealth. It also allows the Military Board to reconsider and potentially remit the sentence if the soldier’s conduct justifies it. The obligations imposed by these regulations require authorities to follow specific procedures when dealing with suspended sentences. Authorities must record any recommendation for suspension made by a Court Martial and document the reasons for any decision to suspend a sentence. The authority suspending a sentence must clearly state that the suspension is made under this regulation. The Military Board must reconsider suspended sentences at least every three months while the soldier remains within the Commonwealth and has the discretion to remit the sentence if the soldier’s conduct warrants it. These provisions also ensure that any inconsistencies between the Army Act and these regulations are resolved by giving precedence to the regulations. The Australian Military Regulations 1916 establish potential consequences for non-compliance with the provisions regarding the suspension of sentences. While the regulations do not explicitly state penalties for breaches, it is implied that any failure to follow the prescribed procedures could lead to legal challenges or disciplinary actions against the authorities involved. Non-compliance with these regulations could undermine the integrity of the military justice system and the proper administration of sentences, potentially leading to adverse outcomes for both the soldier and the military authority. The severity of any penalty would likely depend on the specific circumstances of the breach and the broader legal framework governing military discipline and procedure.

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