STATUTORY RULES.
1921. No. 138.
REGULATIONS UNDER THE DEFENCE ACT 1903-1918.
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 1903-1918, to come into operation forthwith.
Dated this twenty-first day of July, 1921.
FORSTER,
Governor-General.
By His Excellency’s Command,
G. F. PEARCE,
Minister of State for Defence.
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Australian Military Regulations 1916.
Amendments.
(a) Regulation 18a is repealed and the following substituted therefor:—
Judge Advocate-General, and Deputies.
18a. (1) The Governor-General may appoint a Judge Advocate-General and Deputy Advocates-General.
(2) The Judge Advocate-General and any Deputy Judge Advocate-General attached to the Head-Quarters of the Military Forces may be an officer or a civilian. The appointment of Deputy Judge Advocate-General on the staff of a formation or other command shall be held by an officer.
(3) No Judge Advocate-General or Deputy Judge Advocate-General shall hold office for more than four years unless reappointed.
(4) The duties of the Judge Advocate-General shall be—
(a) To advise upon and settle the form of charges when submitted to him.
(b) To act as Judge Advocate at such General Courts Martial or trials by General Court Martial as he shall be appointed to or for.
(c) To examine and advise upon the proceedings of such Courts Martial as shall be referred to him.
(d) To advise the Military Board and the Adjutant-General on such questions of military law, including the conduct of prosecutions under Part XII. of the Act, as shall be referred to him.
(e) To report upon and make recommendations with reference to the instruction in military law of officers of the Military Forces.
(f) To issue to Deputy Judge Advocates-General and officers of the Australian Army Legal Department such rulings directions and opinions on military law as he shall think necessary or advisable.
(5) The duties of a Deputy Judge Advocate-General shall be:—
(a) To advise upon and settle the form of charges when submitted to him.
(b) To act as Judge Advocate at such Courts Martial or trials by Court Martial as he shall be appointed to or for.
(c) If at the Head-Quarters of the Military Forces, to assist the Judge Advocate-General, and in his absence, and when the office is vacant, to perform the duties of the Judge Advocate-General.
(d) If attached to the staff of a formation or other command, to perform, subject to the directions of the Judge Advocate-General, within the formation or other command, and for the Officer Commanding, the like duties to those of the Judge Advocate-General and to instruct in military law, including the conduct of prosecutions for offences against Part XII. of the Act, the officers of the formation or other command.
(6) The Judge Advocate-General or a Deputy Judge Advocate-General should not express any opinion on a sentence, except as to its legality, unless instructed to do so by the authority by whom the proceedings are referred.
(7) Deputy Judge Advocates-General will communicate directly with the Judge Advocate-General or the Deputy Judge Advocate-General at the Head-Quarters of the Military Forces, on all questions of military law, and shall be bound by all rulings, directions and opinions on military law issued by the Deputy Judge Advocate-General at the Head-Quarters of the Military Forces in the absence of the Judge Advocate-General or when the office of Judge Advocate General is vacant.
(b) The following new division and regulations are inserted next after regulation 58:—
Division 6.—Australian Army Legal Department.
Constitution of A.A.L.D.
59a. (1) The Australian Army Legal Department shall consist of officers of the Citizen Forces appointed to that Department or transferred to or seconded for duty with that Department from other portions of the Military Forces.
(2) No person who is not—
(a) A barrister or solicitor of the High Court of Australia, or of the Supreme Court of a State, or
(b) A person recognized by the Governor-General as possessing in the United Kingdom or some part thereof or in a British Possession or some part thereof a status and qualifications equivalent to those of a person mentioned in paragraph (a) of this sub-regulation,
and no person liable to training under paragraph (c) of section 125 of the Act shall be appointed or transferred to or seconded for duty with or continue to hold office in the Australian Army Legal Department.
Bank and Command in the A.A.L.D.
59b. (1) Except as otherwise provided by these Regulations the rank of officers of the Australian Army Legal Department shall be substantive.
(2) The substantive or temporary rank of an officer of the Australian Army Legal Department, except an officer holding the appointment of Judge Advocate-General, shall not be higher than that of a Lieutenant-Colonel.
(3) Officers of the Australian Army Legal Department shall not exercise any military command except over such officers and soldiers as may be detailed for duty under their orders or in the performance of any duties allotted to them under these Regulations.
(4) Notwithstanding anything contained in these Regulations officers of the Australian Army Legal Department shall be entitled according to rank to the presidency of Courts Martial and Courts of Inquiry.
Appointment, transfer, and seconding to and promotion in the A.A.L.D.
59c. (1) First appointment to the Australian Army Legal Department shall be to the rank of Captain provided that under special circumstances a higher rank may be conferred on the recommendation of the Military Board.
(2) An officer transferred to the Australian Army Legal Department—
(a) who holds a rank lower than that of Captain shall be promoted to the rank of Captain, or
(b) who holds the rank of Captain or a higher rank shall retain his rank.
Provided that in either case, under special circumstances, a higher rank may be conferred on the recommendation of the Military Board.
(3) An officer seconded for duty with the Australian Army Legal Department who holds a rank lower than that of Captain shall be granted the temporary rank of Captain or under special circumstances and on the recommendation of the Military Board a higher rank.
(4) Appointment and transfer to and seconding for duty with and promotion in the Australian Army Legal Department shall be made by selection without examination and with due consideration not only to the service, if any, of the candidate, but also to the practicability, having regard to his place of residence, of his performing the duties of the vacant office.
(5) Promotion of an officer while seconded for duty with the Australian Army Legal Department shall be to temporary rank only. Provided that when an officer so seconded is eligible for and would be promoted, if serving with his unit, he may be promoted, and shall thereupon rejoin his unit.
(6) An officer seconded for duty with the Australian Army Legal Department shall not remain seconded for more than four years, but while seconded may on the recommendation of the Military Board be granted a transfer to the Australian Army Legal Department with substantive rank equivalent to any temporary rank held immediately before transfer.
Transfer from the A.A.L.D.
59d. An officer appointed or transferred to the Australian Army Legal Department shall not be transferred or retransferred to any other unit of the Military Forces except to fill an available vacancy for which he is qualified by examination.
Appointment and transfer to the Reserve of Officers.
59e.(1) Notwithstanding anything contained in these Regulations persons qualified for appointment to the Australian Army Legal Department may be appointed to the Reserve of Officers.
(2) An officer appointed or transferred to the Australian Army Legal Department, for whom no suitable appointment or duty is available may be transferred to the Reserve of Officers.
(3) Officers appointed or transferred under this regulation may, notwithstanding anything contained in these Regulations, remain in the Reserve of Officers until they reach the age of retirement.
Employment of Officers of the A.A.L.D.
59f. (1) Officers of the Australian Army Legal Department shall be available for appointment as Judge Advocate-General, Deputy Judge Advocate-General or Legal Staff Officer on the staff of any formation or other command.
(2) Officers of the Australian Army Legal Department shall not hold the same appointment for more than four years unless re-appointed.
Duties of legal staff officer.
(3) The duties of a Legal Staff Officer shall be—
(a) To advise upon and settle the form of charges when submitted to him.
(b) To act as Judge Advocate at such Courts Martial and trials by Court Martial as he shall be appointed to or for.
(c) To act as president or a member of Courts Martial when a Judge Advocate is not appointed and the convening authority considers that a Legal Staff Officer shall be appointed.
(d) To act as prosecutor at trials by Court Martial when the convening authority considers that a Legal Staff Officer should be appointed.
(e) To act as president or a member of Courts of Inquiry when the convening authority considers that the nature of the inquiry is such as to render the appointment of a Legal Staff Officer advisable.
(f) To examine and advise upon the proceedings of such trials by Court Martial as shall be referred to him.
(g) To advise upon such questions of military law, including the conduct of prosecutions for offences against Part XII. of the Act as shall be referred to him.
(h) If attached to the staff of a formation or other command in which there is a Deputy Judge Advocate-General, to assist him, and in his absence, but subject to his directions, to perform his duties, it so required.
(i) To instruct in military law including the conduct of prosecutions for offences against Part XII. of the Act, the officers of the formation or other command to the staff of which he is attached.
(j) When employed on war service to perform such other duties of a legal nature as shall be assigned by the officer under whose command he is serving.
(4) An officer of the Australian Army Legal Department should not express any opinion on a sentence, except as to its legality, unless instructed to do so by the authority by whom the proceedings are referred.
(5) Officers of the Australian Army Legal Department not serving on the staff of any formation or other command may be detailed to perform or assist in performing any of the duties of a Legal Staff Officer.
(6) Officers of the Australian Army Legal Department shall not be required to attend parades or camps of continuous training except to the extent necessary for the performance of their duties, but may be required to deliver lectures, hold classes and conduct examinations in military law at camps of continuous training or schools of instruction or elsewhere.
Command, &c., of A.A.L.D.
59g. (1) For purposes of discipline and administration officers of the Australian Army Legal Department attached to the staff of a formation or other command shall be under the command of the Officer Commanding; officers not so attached shall be under the command of the Adjutant-General.
(2) All matters relating to appointment promotion or transfer in connexion with the Australian Army Legal Department shall be under the control of the Adjutant-General. A report by the Judge Advocate-General, or if the office is vacant, the Deputy Judge Advocate-General at the Head-Quarters of the Military Forces on the professional fitness of the person concerned should be considered when an appointment or promotion is contemplated.
Decision of legal questions.
59h. (1) An officer of the Australian Army Legal Department will communicate, on questions of military law, directly with the Deputy Judge Advocate-General of the formation or command to which the officer is attached or with which he is doing duty or of the greater formation of which his formation is part and shall be bound by the ruling direction or opinion of that Deputy Judge Advocate-General. Provided that on the application of any officer of the Australian Army Legal Department a question shall be referred to the Judge Advocate-General, or in his absence or if the office of Judge Advocate-General is vacant, to the Deputy Judge Advocate-General at the Head-Quarters of the Military Forces.
(2) An officer of the Australian Army Legal Department not attached to or doing duty with a formation or other command to which a Deputy Judge Advocate-General is attached will communicate on questions of military law directly with the Judge Advocate-General or, in his absence or if the office of Judge Advocate-General is vacant, with the Deputy Judge Advocate-General at the Head-Quarters of the Military Forces.
(3) All officers of the Australian Army Legal Department shall be bound by the rulings directions and opinions on questions of military law given by the Judge Advocate-General or during his absence or a vacancy in office of Judge Advocate-General by the Deputy Judge Advocate-General at the Head-Quarters of the Military Forces.
Pay and efficiency of officers of A.A.L.D.
59i. (1) An officer of the Australian Army Legal Department shall be classified as efficient for each year in which he satisfactorily performs the duties allotted to him.
(2) An officer of the Australian Army Legal Department when not employed on war service shall, subject to sub-regulation (3) of this regulation be entitled to receive the pay of his rank in the Department whether substantive or temporary for a period of sixteen days in each whole year during which he holds an appointment or is required to perform duty and proportionately for any less period.
(3) When an officer of the Australian Army Legal Department is employed on war service he shall be entitled to such pay and allowances as for the time being are prescribed by the Financial and Allowance Regulations.
(4) Pay as mentioned in sub-regulation (2) of this regulation shall be issued at the end of each half-year on a certificate of the Officer Commanding the formation or command to the staff of which the officer was attached or with which he was doing duty that he has satisfactorily performed the duties allotted to or required to be performed by him.
(c) In Part XIII., immediately under the heading “Division 12— Confirmation and Promulgation of Sentence” the following regulation is inserted:—
Examination of proceedings before and after confirmation.
642a. (1) Whenever in the opinion of the confirming authority it is reasonably practicable the proceedings of a Court Martial should be referred to the Judge Advocate-General, a Deputy Judge Advocate-General, a Legal Staff Officer or an officer of the Australian Army Legal Department before confirmation.
C.11216.—2
(2) As far as practicable the proceedings of Courts Martial should be referred to the Judge Advocate-General or the Deputy Judge Advocate-General at the Head-Quarters of the Military Forces before they are transmitted to the Attorney-General for record, and the report, if any, of the Judge Advocate-General or Deputy Judge Advocate-General at the Head-Quarters of the Military Forces or a copy thereof should be attached to the proceedings when so transmitted.
(3) An officer who has acted as Judge Advocate at a trial by Court Martial should not if it can possibly be avoided, and an officer who has acted as president or member or prosecutor at a trial by Court Martial, shall not under any circumstances advise upon the proceedings either before or after confirmation.
(d) Sub-regulation (3) of regulation 134 is amended by adding at the end the words, “or the Australian Army Legal Department.”
(e) Paragraph (c) of regulation 135 is amended by adding at the end the words, “or the Australian Army Legal Department.”
(f) Sub-regulation (1) of regulation 152 is amended by inserting after—
“Lieutenant.......................48”
the following:—
“Officers of the Australian Army Legal Department—
Captain......................57
Higher ranks..................60”.
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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.