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.
Overview
The Australian Military Regulations (Amendment) Statutory Rules 1984 No. 76, issued by the authority of the Minister for Defence, was enacted to address a specific procedural issue within the Australian Defence Force's disciplinary framework. The regulation seeks to abolish the plea of condonation, which allowed members charged with an offence to argue that their actions had been condoned by a competent authority, thereby barring their trial. This practice was unique to Army and Air Force law and was deemed to lack merit during the drafting of the Defence Force Discipline Act 1982. The policy objective of the amendment is to prevent the potential for trials to be aborted on insubstantial grounds and to align the regulations with the forthcoming Defence Force Discipline Act, which abolishes the plea of condonation entirely and is expected to be implemented in 1985. The Statutory Rule includes amendments to the Australian Military Regulations to remove the ability to raise the plea of condonation in court-martial proceedings, thereby ensuring consistency in disciplinary processes within the Defence Force.
Scope and Application
The Australian Military Regulations, which are made under the Defence Act 1903, apply to members of the Army and cover various aspects of administration, including disciplinary procedures. Specifically, the Regulations adapt the Rules of Procedure made under the Imperial Army Act, and these have been amended to remove the plea of condonation as a bar to trial for offences charged before a service tribunal. The plea of condonation, which was unique to Army and Air Force Law, has been abolished under the Defence Force Discipline Act 1982, which is expected to replace the Imperial legislation applicable to the Defence Force in 1985. This amendment ensures that proceedings before a court-martial cannot be barred on the grounds of condonation, and other provisions that previously dealt with condonation in the context of bearing arms, release from arrest, or removal of suspension have also been omitted or repealed. These changes are intended to prevent offenders from aborting trials for insubstantial reasons and are effective from the date of gazettal of the Statutory Rule.
Key Provisions
The Australian Military Regulations (Amendment) Statutory Rules 1984 No 76 introduce significant changes to the Australian Military Regulations, particularly concerning the plea of condonation in military discipline cases. Under section 88 of the Defence Act 1903, the Rules of Procedure, as adapted by regulation 308, were previously applied to the Army. However, these amendments, which come into effect from the date of gazettal, eliminate the plea of condonation, aligning with the changes made by the Defence Force Discipline Act 1982.
The primary operative sections of the amendment are regulation 199, inserted by regulation 1, which explicitly states that proceedings before a court-martial cannot be barred due to the condonation of the offence. Additionally, regulations 2 and 3 remove and repeal provisions that previously dealt with condonation, such as sub-regulation 227(3) and regulation 233, as they are now redundant. Regulation 4 further amends regulation 308 to eliminate references to condonation in the adaptation of the Rules of Procedure.
These amendments impose clear obligations on the parties involved in military discipline cases. Specifically, they require that any proceedings before a court-martial cannot be halted or avoided due to a plea of condonation. This means that the military justice system must proceed with trials unless other legal grounds for dismissal are present. The changes also affect how cases are handled in practical terms, ensuring that actions such as bearing arms, release from arrest, or removal of suspension do not trigger a plea of condonation.
The Australian Military Regulations (Amendment) Statutory Rules 1984 No 76 establish clear consequences for any breaches of these provisions. Although the specific offences and penalties are not detailed in the provided text, it is clear that any attempt to invoke the now-abolished plea of condonation could result in disciplinary action against those who attempt to misuse it. The intent behind these amendments is to prevent offenders from avoiding trials on trivial grounds, thereby ensuring a more consistent and fair application of military law.