STATUTORY RULES.
1911. No. 122.
PROVISIONAL REGULATIONS UNDER THE DEFENCE ACT 1903–1910.
I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby certify that, on account of urgency, the following Regulations under the Defence Act 1903-1910 should come into immediate operation, and make the Regulations to come into operation forthwith as Provisional Regulations.
Dated this seventeenth day of August, One thousand nine hundred and eleven.
DENMAN,
Governor-General.
By His Excellency’s Command,
G. McGregor.
Regulations (Provisional) for the Military Forces of the Commonwealth.
After Regulation 273 add new Regulation 273a—
273a. “When proposing to deal with a case summarily a Commanding Officer will satisfy himself that the evidence produced before him is sufficient to disclose the exact nature of the offence. If he is not so satisfied he should remand the case for further inquiries, so that the offence as entered in the guard report may be substantially the charge upon which the accused would be arraigned in the event of his electing to be tried by a district court-martial under the provisions of paragraph 265 (d).
When once an accused has elected to be tried upon the charge as read out to him from the guard report, it should under no circumstances be added to or increased in gravity.”
After Regulation 276 add new Regulation 276a—
276a. “A soldier on electing to be tried by a district court-martial under the provisions of paragraph 265 (d) will be at once released from arrest pending trial. In exceptional cases a Commanding Officer may, however, keep the soldier in confinement, but in such cases he will at once report his action to the officer to whom the application for the soldier’s trial will be made, giving the reasons for his action.”
Printed and Published for the Government of the Commonwealth of Australia by J. Kemp, Government Printer for the State of Victoria.
C.11066.—Price 3d.
Overview
Statutory Rules 1911 No. 122, known as the Provisional Regulations under the Defence Act 1903–1910, was enacted to address the urgent need for procedural clarity and fairness in the summary trials of military personnel. This legislative instrument was introduced by the Governor-General in Council, acting with urgency and necessity, and was designed to ensure that military officers adhere to fair trial principles when dealing with summary cases. The primary policy objective of these provisional regulations is to safeguard the rights of soldiers by ensuring that they are adequately informed of the charges against them and that these charges do not subsequently change in nature or severity once a soldier has elected to be tried by a court-martial. This legislative measure underscores the importance of due process and the integrity of military justice.
Scope and Application
The Provisional Regulations under the Defence Act 1903-1910 apply to the Military Forces of the Commonwealth, impacting the procedural conduct of Commanding Officers when dealing with cases summarily. The regulations focus on ensuring that the evidence presented is sufficient to disclose the exact nature of the offence and that the charge remains unchanged once an accused person has elected to be tried. This applies to the Commonwealth jurisdiction, thereby affecting military personnel and officers across Australia. The regulations also outline the conditions under which a soldier can be released from arrest pending trial, specifying that in exceptional circumstances, continued confinement may be permitted but requires immediate reporting to the relevant authority. These regulations do not explicitly state exclusions or thresholds, but they operate under the overarching Defence Act and its subsequent amendments, which may include further specifications through subordinate instruments.
Key Provisions
The key provisions of this legislation introduce two new regulations, 273a and 276a, which pertain to the handling of cases by military forces under the Defence Act 1903-1910. Regulation 273a (2) mandates that a Commanding Officer must ensure the evidence presented before them is sufficient to clearly identify the nature of the offence. If the evidence is insufficient, the case must be remanded for further inquiries to enable the offence to be accurately defined. Once an accused person has chosen to be tried by a district court-martial, the charge as presented in the guard report must remain unchanged and not be increased in severity (Regulation 273a (3)). Regulation 276a (2) stipulates that a soldier who elects to be tried by a district court-martial should be released from arrest pending trial. However, in exceptional circumstances, a Commanding Officer may retain the soldier in confinement, in which case they must immediately report this action and provide reasons to the officer who will make the application for the soldier's trial (Regulation 276a (3)).
The obligations imposed by these regulations on military personnel and officers are clear and specific. Commanding Officers are required to meticulously review the evidence before them to ensure it adequately discloses the exact nature of the offence. If they find the evidence lacking, they must take action to gather more information. Additionally, they must ensure that once a charge is set out for an accused person, it remains unchanged regardless of any subsequent developments. For soldiers, the right to be released from arrest pending trial is established, with a limited exception allowing for continued confinement only under specific conditions and with mandatory reporting to the relevant officer.
Failure to comply with these provisions can lead to significant consequences. Although specific penalties are not detailed in the regulations, non-compliance could potentially result in legal challenges or administrative actions against the officers involved. The regulations are designed to safeguard the rights of the accused and ensure that the legal process is conducted with fairness and due process, which underscores the seriousness of adhering to these provisions.