EXPLANATORY STATEMENT
Select Legislative Instrument No. 235, 2013
Issued by the authority of the Judge Advocate General
Defence Force Discipline Act 1982
Court Martial and Defence Force Magistrate Rules 2009
Section 149A of the Defence Force Discipline Act 1982 (the Act) provides that the Judge Advocate General may make rules of procedure, not inconsistent with the Act, providing for or in relation to the practice and procedure to be followed by a court martial or Defence Force magistrate exercising power under the Act.
The Court Martial and Defence Force Magistrate Amendment (Travel Expenses) Rules 2013 (the Rule) amend the Court Martial and Defence Force Magistrate Rules 2009 in relation to the payment of witness expenses to a person who has been summonsed to appear as a witness at a court martial or Defence Force magistrate trial.
Details of the Rule are outlined in the Attachment.
The Rule is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).
After consulting the Office of Best Practice Regulation in respect of the need for, and preparation of, a Regulation Impact Statement, it advised that a Regulation Impact Statement was not required (OBPR reference 15161, 4 July 2013), as there were no regulatory impacts on business or the not-for-profit sector made by the Rule.
Consultation was considered unnecessary pursuant to section 18 of the LIA because the Rule relates to the service of members of the ADF.
The Rule commences on the day after its registration on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
This Rule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Rule does not engage any applicable rights or freedoms; the Rule operates to facilitate legally effective military justice for its users. Accordingly, in the Department of Defence’s assessment, this Rule is compatible with human rights.
ATTACHMENT
Details of the Court Martial and Defence Force Magistrate Amendment (Travel Expenses) Rules 2013
The Court Martial and Defence Force Magistrate Rules (the Principal Rules) are made pursuant to section 149A of the Defence Force Discipline Act 1982 by the Judge Advocate General. Rule 6 relates to the service of summons.
Subrule 6(4) of the Principal Rules, relating to the payment of certain expenses to a person who has been served with a summons provides -
‘At the time of the service of the summons on a person who is not a defence member, the person serving the summons shall tender to the person named in the summons sufficient money to enable that person to travel between the person’s place of residence or employment…and the place of sitting of the court martial or Defence Force magistrate…’
In 2012, the judge advocate in a General Court Martial ruled that service of a summons was not properly made in accordance with subrule 6(4) as the person the subject of the summons was not provided with conduct money at the time of the service. Furthermore, the current practice of the Australian Defence Force (ADF) Director of Military Prosecutions (DMP) and the ADF Director of Defence Counsel Services (DDCS) is not completely consistent with the requirements of the subrule. For example, the DMP may contact a witness after the summons has been served to make the necessary travel arrangements, including payment of the conduct money.
Furthermore, notwithstanding the penalty contained in section 86 of the Defence Act 1903 ($1000 fine or 6 months imprisonment or both), a witness served with a summons under subrule 6(4) could, for example, claim as a defence for failing to appear that the expenses were not paid in accordance with the subrule, which could constitute a 'reasonable excuse' available under section 86. Amending the subrule in the manner discussed below may potentially reduce the likelihood of a person claiming a successful defence to a prosecution.
The Court Martial and Defence Force Magistrate Amendment (Travel Expenses) Rules 2013 (the Rule) repeals and substitutes subrule 6(4) and importantly, ensures that the provision operates in a way that facilitates legally effective military justice.
Details of the Rule are as follows.
Preliminary
Rule 1 identifies the Rule as the Court Martial and Defence Force Magistrate Amendment (Travel Expenses) Rules 2013.
Rule 2 sets the commencement date of the Rule as the day after it is registered (on the Federal Register of Legislative Instruments).
Rule 3 provides that the authority for the Rule is section 149A of the Defence Force Discipline Act 1982.
Rule 4 outlines how the Principal Rules are amended by the Rule that is, as outlined in Schedule 1.
Schedule 1 – Amendments
Item 1 repeals and substitutes subrule 6(4) of the Principal Rules which provides that a person other than a defence member, who appears in response to a summons, must be paid certain expenses. The previous version of subrule 6(4) required the payment of the expenses to occur at the time of service. New subrule 6(4) introduces the expression at a reasonable time as the time for when the payment of expenses is to occur. The reason for incorporating this expression is to enable greater flexibility by reflecting what currently occurs in the day to day administrative practices of the Office of the DMP, DDCS and the Office of the Registrar of Military Justice (RMJ). However, even though the expression at the time of service has been removed, the intent of the amendment is that the expression a reasonable time is sufficiently broad to include at the time of service, should this be an option in the process of serving the summons.
Subrule 6(4) is based on subsection 162(3) of the Western Australian Criminal Procedure Act 2004. This provision was considered to be a useful basis for a more flexible approach in the payment of witness expenses under the Principal Rules, not only by introducing the expression at a reasonable time but also by introducing a range of options for the payment of a person’s travel expenses. Amended subrule 6(4) provides that a person (the ‘summoner’) must pay a person’s travel expenses, arrange with the person to pay the expenses or arrange the person’s travel (in which case, the person must be advised of the proposed arrangements). ‘Summoner’ is defined in new subrule 6(5).
New subrule 6(4) is connected to rule 19 by the inclusion of a Note. Rule 19 provides for the way in which, and by whom the payment of witness expenses occurs. Specifically, it enables the ‘appropriate authority’ (which in nearly all cases is the RMJ) to request either the DMP or the DDCS to pay the prosecution and defence witness’s (respectively) expenses and make necessary travel arrangements (DDCS, being a delegate of the CDF or the DMP can undertake these functions under subrule 19(2)). The amendment to rule 6 and its connection to subrule 19(2) reflects day to day administrative practice and ensures effective and timely service.
New subrule 6(5) defines summoner to mean the person at whose request a summons was issued. New subrule 6(5) also defines travel expenses. Primarily, this means an amount to enable a person to travel between the place where the person lives or works and the place where he or she is required to appear in accordance with the summons. New subrule 6(5) has been drafted in a manner intended to include a place where the person is required to appear in circumstances where he or she may need to give evidence at a place other than where the trial is being conducted. For example, this amendment entitles a person to payment of travel expenses in circumstances where he or she must travel to a place to provide audio/visual testimony, rather than to the place where the Court Martial or Defence Force magistrate trial is to be held.