Explanatory Statement
Issued by the authority of the Judge Advocate General
Defence Force Discipline Act 1982
Defence Force Discipline Amendment Rules 2006 (No.1)
Section 149 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 (including the regulations), providing for or in relation to the practice and procedure to be followed by service tribunals exercising power under the Act.
The proposed Rules amend the Defence Force Discipline Rules 1985 to reflect the amendments to the Act by the Defence Legislation Amendment Act (No.2) 2005 and Defence Force Legislation Amendment Act (Application of Criminal Code) Act 2001.
The proposed Rules make various consequential amendments to the Defence Force Discipline Rules 1985 to ensure that the provisions relating to Convening Authorities reflect the replacement of that role by the Register of Military Justice and Director of Military Prosecutions as incorporated into the Act by the Defence Legislation Amendment Act (No2) 2005. In addition, minor consequential and technical amendments are also made to the statement of offences in Schedule 1 to reflect amendments made to the Act under the Defence Legislation Amendment (Application of Criminal Code) Act 2001.
Details of the Rules are outlined in the Attachment.
The Act does not specify any conditions that need to be met before the power to make the proposed Rules may be exercised.
The Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Rules commence on 12 June 2006.
There has been no consultation in the making of this instrument as it relates to the management and service of members of the Australian Defence Force.
ATTACHMENT Details of the Defence Force Discipline Amendment Rules 2006 (No. 1)
Rule 1 identifies these Rules as the Defence Force Discipline Amendment Rules 2006 (No. l)
Rule 2 provides that the Rules commence on 12 June 2006.
Rule 3 provides that the amendments to the Defence Force Discipline Rules 1985 (the Principal Rules) are contained in Schedule 1.
Schedule 1 makes substantive amendments to the Principal Rules.
Item [1] amends subrule 3(2) by omitting "a convening authority under paragraph" and inserting "the Director of Military Prosecutions under section 105A, paragraphs". This reflects as additional mechanism for the referring of charges.
Item [2] substitutes a new rule for the existing rule 11 that replaces all instances of "a convening authority" with "the Registrar of Military Justice" and provides that the Registrar of Military Justice is to base his or her directions regarding charges in terms of whether co-accused are to be tried jointly or separately, and whether multiple charges are to be included on the same charge sheet, on the instructions given by the Director of Military Prosecutions.
Item [3] amends rule 14 by omitting "The appropriate authority shall" and inserting "The appropriate authority must"
Item [4] inserts a new subrule 14 (2) inserting the definition of a relevant authority for the purposes of Rule 14 to be:
the Chief of the Defence Force,
a delegate of the Chief of the Defence Force of at least the rank of Colonel (or equivalent rank)
In discharging the responsibilities of the relevant authority, a relevant authority may seek the issue of a summon by an appropriate authority. The relevant authority would then attend to administrative arrangements or direct others to attend to those arrangements.
Item [5] amends rule 21 by omitting "A person" and inserting "(1) A person"
Item [6] inserts a new subrule 21 (2) to provide that at the request of the appropriate authority the function in subrule (1) is to be carried out by: the Chief of the Defence Force, or
a delegate of the Chief of the Defence Force of at least the rank of Colonel (or equivalent rank); or
the Director of Military Prosecutions.
This will enable an appropriate authority to require the most relevant person to attend to administrative issues where the appropriate authority has exercised powers to summon a person.
Item [7] substitutes a new subrule for the existing subrule 23(4) that replaces the reference to "a convening authority" with "the Director of Military Prosecutions" and inserts in subrule 23(4)(b) "and he or she is of the opinion that there is insufficient evidence to support the charge". The latter part clarifies when this power can be exercised in accordance with s 110 of the Act.
Item [8] substitutes a new heading for Part VI by substituting the words "Registrar of Military Justice and Director of Military Prosecutions" for the existing heading.
Item [9] inserts a new rule 28A that provides that an order referring a charge to a superior authority or commanding authority by the Director of Military Prosecutions is to specify the superior summary authority or the commanding officer to whom the charge or case is referred. The summary authority will then fix, or provide for the fixing of, the time and place for the hearing of the charge
Item [10] omits each mention of `convening authority' and inserts `the Registrar of Military Justice' in rule 29.
Item [11] omits each mention of `the authority shall' and inserts `the Registrar must' in rule 29.
Item [12] inserts after `proceedings' the words `(if held)' in subrule 29(1)(b)(iii). This clarifies the position that evidence may not have been led at the summary proceedings.
Item [13] inserts after `proceedings' inserts the words `(if held)' in subrule 29(2)(b)(ii). This clarifies that evidence may not have been led at the summary proceedings.
Item [14] substitutes a new rule to replace rule 30. The new rule omits "the relevant convening authority" and inserts "the Registrar of Military Justice" and omits "a convening authority" and inserts "the custodian of the exhibit". It also omits subrule 30(3) removing the reference to a `relevant convening authority'. This change reflects the fact that the Registrar of Military Justice will not be the custodian of exhibits.
Item [15] substitutes a new subrule 55(2) to replace existing subrule 55(2) by inserting the requirement to prepare or cause to be prepared a written transcript of the proceedings where the proceedings result in a referral to the Director of Military Prosecutions or a conviction on one, some or all of the charges on the charge sheet, including alternative charges. This change allows for a transcript not to be produced when the accused is acquitted (or similar) on all charges.
Item [16] omits items 69 and 70 from Schedule 1, Part 1.
Item [17] makes further amendments the Principal Rules to reflect amendments made to the Defence Force Discipline Act 1982 by the Defence Legislation Amendment Act (No.2) 2005 and the Defence Legislation Amendment (Application of Criminal Code) Act 2001.