EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 302
Issued by the authority of the Minister for Veterans’ Affairs for the Attorney General
Defence Force Discipline Appeals Act 1955
Defence Force Discipline Appeals Amendment Regulations 2007 (No. 1)
Director of Public Prosecutions Act 1983
Director of Public Prosecutions Amendment Regulations 2007 (No. 1)
Section 60 of the Defence Force Discipline Appeals Act 1955 (the Appeals Act) provides that the Governor-General may make regulations not inconsistent with the Appeals Act, prescribing all matters which by the Appeals Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Appeals Act. In particular, paragraph 60 (g) allows regulations to be made for the furnishing to the Defence Force Discipline Appeals Tribunal (the DFDAT), for the purposes of an appeal, or an application for leave to appeal, a record of the proceedings of the Australian Military Court and documents that were before the Australian Military Court in connection with the proceedings.
Section 34 of the Director of Public Prosecutions Act 1983 (the DPP Act) provides that the Governor‑General may make regulations not inconsistent with the DPP Act, prescribing matters required or permitted by the DPP Act to be prescribed or necessary or convenient to be prescribed, for carrying out or giving effect to the DPP Act.
The Senate Foreign Affairs, Defence and Trade References Committee, in its report on "The Effectiveness of Australia's Military Justice System", delivered on 16 June 2005, recommended that a ‘permanent military court’ be established to replace the system of trials by Courts Martial (CM) and Defence Force magistrates (DFM) under the Defence Force Discipline Act 1982. The Defence Legislation Amendment Act 2006 established, among other things, the 'Australian Military Court' and enabled expanded appeal options to the DFDAT in certain circumstances.
The Appeals Amendment Regulations make consequential amendments to the Defence Force Discipline Appeals Regulations 1957, primarily to the replace the terms ‘Court martial’ and ‘Defence Force magistrate’ with ‘Australian Military Court’, references to the ‘Chief of the Defence Force’ or a ‘Service Chief’ as required (to be replaced with the Registrar of the Australian Military Court) and, where appropriate, including references to an ‘offender appellant’ to distinguish that person from the Director of Military Prosecutions, who may, on the commencement of the relevant provisions of the Defence Legislation Amendment Act 2006, appeal to the DFDAT in certain circumstances. The ‘Registrar of the Australian Military Court’ is also included in respect of those provisions which require the exercise of certain Registrar functions. These Regulations also reflect current drafting protocols, by, for example, replacing gender specific references.
Details of the Defence Force Discipline Appeals Amendment Regulations 2007 (No. 1) are outlined in Attachment A.
The Director of Public Prosecutions Amendment Regulations 2007 (No. 1) amend the Director of Public Prosecutions Regulations 1984 to remove a reference to obsolete legislation.
Details of the Director of Public Prosecutions Amendment Regulations 2007 (No. 1) are contained in Attachment B.
The Appeals Act and the DPP Act specify no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the commencement of Schedule 1 of the Defence Legislation Amendment Act 2006, expected to be on 1 October 2007.
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ATTACHMENT A
Details of the Defence Force Discipline Appeals Amendment Regulations 2007 (No. 1)
Regulation 1 cites the Regulations as the Defence Force Discipline Appeals Amendment Regulations 2007 (No. 1).
Regulation 2 provides that the Regulations commence on the commencement of Schedule 1 of the Defence Legislation Amendment Act 2006.
Regulation 3 provides that the amendments to the Defence Force Discipline Appeals Regulations 1957 (the Principal Regulations) are contained in Schedule 1.
Schedule1 makes the substantive amendments to the Principal Regulations.
Item [1] renames the Principal Regulations as the Defence Force Discipline Appeals Amendment Regulations 1957. This includes the date of the Principal Regulations, consistent with current drafting practice.
Item [2] substitutes regulation 2 (Interpretation) to reflect the new references and positions established under the Defence Legislation Amendment Act 2006, including the Director of Military Prosecutions and the Registrar of the Australian Military Court. This latter position was referred to as the ‘Registrar of Military Justice’, but from 1 October 2007 is referred to as the ‘Registrar of the Australian Military Court’ to more accurately reflect the establishment of the Australian Military Court.
Item [3] inserts new paragraph 9 (1) (ab) to prescribe the Registrar of the Australian Military Court as a prescribed person to whom an appeal may be lodged, pursuant to paragraph 21 (1) (b) of the Act. This is in addition to the existing prescribed persons.
Item [4] substitutes the heading to Regulation 10, to replace the reference to ‘court martial proceedings’ with ‘the Australian Military Court’.
Item [5] substitutes subregulation 10 (1) to reflect amendments made by the Defence Legislation Amendment Act 2006. These amendments extended the availability of an appeal from the Australian Military Court to the DFDAT by the Director of Military Prosecutions against a punishment. This is in addition to the ‘offender appellant’ being able to appeal in respect of a conviction, prescribed acquittal and/or punishment. Proposed subregulation 10 (1) also reflects the requirement for the Registrar of the Australian Military Court to make the records of Australian Military Court proceedings and other documents available to the DFDAT for the purposes of an appeal .
Item [6] replaces the reference in subregulation 10 (2) to ‘Chief of the Defence Force’ or ‘service chief’ with ‘Registrar of the Australian Military Court’. This more appropriately reflects the role of the Registrar under subregulation 10 (1).
Item [7] omits and substitutes subregulation 11 (2) to reflect the new definition of ‘offender appellant’ which was introduced in the Defence Legislation Amendment Act 2006. This definition is required to enable the Director of Military Prosecutions to lodge an appeal in addition to a convicted person (see discussion in respect of item 5 above). Previously, the term ‘appellant’ was used, which could mean both the convicted person and the Director of Military Prosecutions under the new system.
Item [8] omits and substitutes regulation 12, again to distinguish between the appeal options available to an offender appellant and the Director of Military Prosecutions. New regulation 12 will enable both the offender appellant and the Director of Military Prosecutions to withdraw an application for leave to appeal or discontinue an appeal.
Item [9] substitutes the heading to regulation 16 to incorporate the reference to ‘offender appellant’. More substantive amendments to this regulation (and others) are contained in item 11 discussed below.
Item [10] substitutes regulation 18, which requires the Registrar (of the DFDAT) to notify certain people of the details (time, date and place) of a hearing of an appeal, application or matter. Consistent with the amendment of various provisions discussed above, regulation 18 reflects the reference to ‘offender appellant’, includes the Director of Military Prosecutions as a person to be notified and requires that the notice is to be in writing.
Item [11] inserts new regulation 24 which outlines what procedural matters are required following a DFDAT decision on an appeal, application or matter. These are as follows –
- as soon as practicable after reaching its decision, the DFDAT must prepare a written statement that sets out its decision;
- the DFDAT must give the Registrar (of the DFDAT) a copy of the statement; and
- the Registrar (of the DFDAT) must give the Registrar of the Australian Military Court a copy of the statement and a copy of the record of the proceeding of the appeal application or matter.
This regulation ensures that all the participants in an appeal process are kept informed, ensuring an open and transparent system.
Item [12] makes further amendments, in table form, to various regulations, specifically to remove gender specific references, include references to ‘offender appellant’ and make minor, miscellaneous stylistic amendments.
ATTACHMENT B
Details of the Director of Public Prosecutions Amendment Regulations 2007
(No. 1)
Regulation 1 cites the Regulations as the Director of Public Prosecutions Amendment Regulations 2007 (No. 1).
Regulation 2 provides that the Regulations commence on the commencement of Schedule 1 of the Defence Legislation Amendment Act 2006.
Regulation 3 provides that the amendments to the Director of Public Prosecutions Regulations 1984 (the Principal Regulations) are contained in Schedule 1.
Schedule 1 makes the substantive amendments to the Principal Regulations.
Item [1] omits paragraph 3 (1) (b) This paragraph refers to the Courts-Martial Appeals Act 1955, which was replaced by the Defence Force Discipline Appeals Act 1955. This provision also enables the Commonwealth Director of Public Prosecutions to represent the Chief of the Defence Force or a Service Chief of the Australian Defence Force in respect of appeals to the Courts Martial Appeals Tribunal. As this function now resides with the Director of Military Prosecutions under the Defence Force Discipline Act 1982, following the commencement of the Defence Legislation Amendment Act (No. 2) 2005 on 12 June 2006, it is not necessary to retain the provision in the Director of Public Prosecutions Regulations 1984.