EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO 76
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE
AUSTRALIAN MILITARY REGULATIONS (AMENDMENT)
The Australian Military Regulations, made under the Defence Act 1903, provide for various matters relating to the administration of the Army, including provisions relating to discipline.
For the purposes of discipline, section 88 of the Defence Act 1903 applies the Rules of Procedure made under the Imperial Army Act and regulation 308 of the Australian Military Regulations adapts those Rules.
Background
Under the existing Imperial provisions, as applied to the Army, 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 Army 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 Australian Military Regulations to abolish the plea of condonation. Similar amendments are effected to the Air Force Regulations by a separate Statutory Rule.
Regulation 1 of the Statutory Rule inserts regulation 199 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 omit sub-regulation 227(3) and repeal regulation 233. These provisions, rendered otiose by the inclusion of regulation 199, formerly ensured that a plea of condonation was not attracted by the bearing of arms by an offender, or by his release from arrest, or by the removal of a suspension.
Regulation 4 of the Statutory Rule amends regulation 308 to delete references, in the adaptation of the Rules of Procedure, to those provisions which permit the plea of condonation.
The amendments have effect from the date of gazettal of the Statutory Rule.