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Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

Schedule 3 Amendments of other Acts

Part 1 Main amendments

Acts Interpretation Act 1901

1  Section 2B

Insert:

Federal Magistrate : see subsection 16C(4).

2  Section 16C (heading)

Repeal the heading, substitute:

16C   References to Stipendiary Magistrate, Magistrate and Federal Magistrate

3  At the end of section 16C

Add:

             (4)  A reference in an Act to a Federal Magistrate means a Federal Magistrate of the Federal Magistrates Court or the Military Court of Australia.

Administrative Decisions (Judicial Review) Act 1977

4  At the end of paragraph (o) of Schedule 1

Add “(other than decisions by the Attorney-General under subsection 158A(8) of that Act or subclause 35(7) of Schedule 3B to that Act)”.

5  At the end of Schedule 1

Add:

                  ; (zg)  the following decisions under the Military Court of Australia Act 2012 :

                              (i)  decisions of the Chief Justice in the exercise of the powers or the performance of the functions mentioned in subsection 53(2) of that Act;

                             (ii)  decisions of the Chief Justice or the Attorney-General whether to consent as mentioned in paragraph 14(2)(a) of that Act.

Age Discrimination Act 2004

6  Schedule 1 (table item 22)

Repeal the item.

7  Schedule 1 (after table item 30)

Insert:

30A

Military Court of Australia Act 2012

Australian Crime Commission Act 2002

8  Schedule 1

Before:

National Health Act 1953 , section 135A

insert:

Military Court of Australia Act 2012 , section 168

Australian Security Intelligence Organisation Act 1979

9  Section 34A (definition of Federal Magistrate )

Repeal the definition.

10  Section 34A (after paragraph (b) of the definition of superior court )

Insert:

                   (ba)  the Military Court of Australia; or

Crimes Act 1914

11  Subsection 3C(1) (paragraph (a) of the definition of offence )

After “other than”, insert “a service offence within the meaning of”.

12  Section 3ZQL (heading)

Repeal the heading, substitute:

3ZQL   Definition

13  Section 3ZQL (definition of Federal Magistrate )

Repeal the definition.

14  At the end of paragraph 4AAA(1)(aa)

Add “or the Military Court of Australia”.

15  Subsection 4AAA(1) (note 1)

Repeal the note, substitute:

Note 1:       Federal Magistrate and Magistrate are defined in section 16C of the Acts Interpretation Act 1901 .

16  Subsection 4AAA(2)

Omit “the Federal Court of Australia”, insert “a federal court referred to in paragraph (1)(aa)”.

17  Subsection 4AAA(3A)

Omit “the Federal Court of Australia”, insert “a federal court referred to in paragraph (1)(aa)”.

Federal Court of Australia Act 1976

18  Section 18C

Before “The Registrar”, insert “(1)”.

19  At the end of section 18C

Add:

             (2)  A person who is a member of the Australian Defence Force must not be appointed, and cannot hold office, as the Registrar.

Note:          The Registrar also has functions and powers under the Military Court of Australia Act 2012 .

20  Subsection 18J(1)

Omit “(1)”.

21  Subsection 18J(2)

Repeal the subsection.

Federal Magistrates Act 1999

22  Section 5 (after paragraph (c) of the definition of prior judicial service )

Insert:

                    (ca)  a Federal Magistrate of the Military Court of Australia;

Federal Proceedings (Costs) Act 1981

23  Subsection 3(1) (after paragraph (b) of the definition of Federal appeal )

Insert:

                   (ba)  an appeal to the High Court from a judgement of the Military Court; or

24  Subsection 3(1)

Insert:

Military Court means the Military Court of Australia.

25  Subsection 10(1)

After “the Federal Court”, insert “, the Military Court”.

26  Schedule

After:

Federal Court .................................................................................

3000

insert:

Military Court ................................................................................

6000

27  At the end of the Schedule

Add:

Note:          Higher amounts than the prescribed maximum amounts specified in this Schedule may be prescribed by regulations made under subsection 18(1) of this Act.

Geneva Conventions Act 1957

28  Subsection 5(2) (definition of court )

Repeal the definition, substitute:

court does not include a service tribunal within the meaning of the Defence Force Discipline Act 1982 .

Judges (Long Leave Payments) Act 1979

29  Section 3 (paragraph (a) of the definition of Judge )

Omit “the High Court or the Federal Magistrates Court”, substitute “a Justice of the High Court or a Federal Magistrate”.

30  Section 3 (paragraph (b) of the definition of Judge )

Omit “of a court referred to in paragraph (a)”, substitute “covered by paragraph (a)”.

Judges’ Pensions Act 1968

31  Subsection 4(1) (paragraph (a) of the definition of Judge )

Omit “the Federal Magistrates Court”, substitute “a Federal Magistrate”.

32  Subsection 4(1) (paragraph (b) of the definition of Judge )

Omit “of a court referred to in paragraph (a)”, substitute “covered by paragraph (a)”.

Judiciary Act 1903

33  Paragraph 23(2)(a)

Repeal the paragraph, substitute:

                     (a)  in the case of:

                              (i)  a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity); or

                             (ii)  a decision of a Supreme Court of a State or Territory or a Judge of such a Court; or

                            (iii)  a decision of the Federal Court of Australia or a Judge of that Court; or

                            (iv)  a decision of the Military Court of Australia or a Judge of that Court; or

                             (v)  a decision of the Family Court of Australia or a Judge of that Court;

                            that is called in question by appeal or otherwise—the decision appealed from is to be affirmed; and

34  Section 39B (heading)

Repeal the heading, substitute:

39B   Original jurisdiction of Federal Court of Australia—general

35  Subsection 39B(1)

After “(1EA)”, insert “and subsections 39C(1) and (2)”.

36  At the end of Part VI

Add:

39C   Original jurisdiction of Federal Court of Australia—certain writs relating to prosecutions for service offences

             (1)  If a decision to prosecute a person in the Military Court of Australia for a service offence under the Defence Force Discipline Act 1982 has been made by an officer or officers of the Commonwealth:

                     (a)  the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition, or an injunction, against the officer or officers in relation to that decision; and

                     (b)  the Military Court of Australia is invested with, or has conferred on it, jurisdiction with respect to any such matter.

             (2)  Subject to subsection (3), at any time when:

                     (a)  a prosecution for a service offence under the Defence Force Discipline Act 1982 is before the Military Court of Australia; or

                     (b)  an appeal arising out of such a prosecution is before the Military Court of Australia;

the following apply:

                     (c)  the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

                     (d)  the Military Court of Australia is invested with, or has conferred on it, jurisdiction with respect to any such matter.

             (3)  Subsection (2) does not apply if a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution in the Military Court of Australia for a service offence under the Defence Force Discipline Act 1982 .

             (4)  If subsection (3) applies, the prosecutor may apply to the Military Court of Australia for a permanent stay of the proceedings referred to in that subsection, and the Military Court may grant such a stay if it determines that:

                     (a)  the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and

                     (b)  a stay of proceedings will not substantially prejudice the person.

             (5)  This section has effect despite anything in any other law.

             (6)  In this section:

related criminal justice process decision has the same meaning in relation to a service offence under the Defence Force Discipline Act 1982 as that expression has in relation to an offence in subsection 39B(3).

Legislative Instruments Act 2003

37  Section 9

After “Federal Court of Australia”, insert “, the Military Court of Australia”.

Military Court of Australia Act 2012

38  Subsection 170(5) (note)

Repeal the note, substitute:

Note:          See Part 6 of the Trans-Tasman Proceedings Act 2010 .

39  Subsection 171(3) (note)

Repeal the note, substitute:

Note:          See Part 6 of the Trans-Tasman Proceedings Act 2010 .

40  Section 175

Omit “the Evidence and Procedure (New Zealand) Act 1994 ”, substitute “the Trans-Tasman Proceedings Act 2010 ”.

National Security Information (Criminal and Civil Proceedings) Act 2004

41  Section 7 (definition of prosecutor )

Repeal the definition, substitute:

prosecutor :

                     (a)  in relation to a federal criminal proceeding (other than a proceeding before the Military Court of Australia), means the Director of Public Prosecutions or a person representing the Director of Public Prosecutions in relation to the proceeding; and

                     (b)  in relation to a federal criminal proceeding before the Military Court of Australia, means the Director of Military Prosecutions or a person representing the Director of Military Prosecutions in relation to the proceeding.

42  Paragraph 13(2)(f)

After “39B(1B)”, insert “or 39C(1)”.

43  Subparagraph 13(2)(f)(ii)

Omit “of that Act”, insert “or 39C(6) of that Act, as the case requires”.

44  Section 14

Before “In this”, insert “(1)”.

45  At the end of section 14

Add:

             (2)  To avoid doubt, a proceeding before a court martial or a Defence Force magistrate in respect of a service offence under the Defence Force Discipline Act 1982 is not a federal criminal proceeding for the purposes of this Act. However, an appeal or other proceeding in the Military Court of Australia under Part 4 of Schedule 3B to the Defence Force Discipline Act 1982 is a federal criminal proceeding for the purposes of this Act.

Trans-Tasman Proceedings Act 2010

46  Subsection 109(3)

Before “Family Court”, insert “Military Court of Australia, the”.

Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010

47  Part 3 of Schedule 2 (heading relating to the Defence Force Discipline Act 1982 )

Repeal the heading.

48  Items 10, 11 and 12 of Schedule 2

Repeal the items.



 

Part 2 Contingent amendments

Division 1—Amendments relating to judicial misbehaviour and incapacity

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

49  Section 4

After “Federal Court of Australia”, insert “, the Military Court of Australia”.

50  Section 7 (paragraph (b) of the definition of Commonwealth judicial officer )

Omit “the Federal Magistrates Court”, substitute “a Federal Magistrate”.

51  Section 7 (definition of Federal Magistrate )

Repeal the definition.

52  After paragraph 19(6)(a)

Insert:

                   (ab)  an investigation into a complaint about a Judge or a Federal Magistrate within the meaning of the Military Court of Australia Act 2012 ; and

Division 2—Amendments relating to judicial complaints

Freedom of Information Act 1982

53  After subsection 5(1A)

Insert:

Certain documents relating to complaint handling—Military Court Judges and Federal Magistrates

       (1AA)  This Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to a complaint handler (or a body consisting of complaint handlers):

                     (a)  exercising powers or performing functions under paragraph 53(2)(c) and subsection 53(2A) of the Military Court of Australia Act 2012 ; or

                     (b)  assisting in exercising those powers or performing those functions.

For this purpose complaint handler has the meaning given by that Act.

Military Court of Australia Act 2012

54  Section 3

Insert:

complaint means a complaint mentioned in paragraph 53(2)(c).

55  Section 3

Insert:

complaint handler means:

                     (a)  the Chief Justice; or

                     (b)  a person who is authorised by the Chief Justice under subsection 53(2B); or

                     (c)  a person who is a member of a body that is authorised by the Chief Justice under subsection 53(2B).

56  Section 3

Insert:

handle a complaint means do one or more of the following acts relating to the complaint:

                     (a)  consider the complaint;

                     (b)  investigate the complaint;

                     (c)  report on an investigation of the complaint;

                     (d)  deal with a report of an investigation of the complaint;

                     (e)  dispose of the complaint;

                      (f)  refer the complaint to a person or body.

57  Section 3

Insert:

relevant belief : a person has a relevant belief in relation to a complaint about a Judge or a Federal Magistrate if:

                     (a)  the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated, justify consideration of the removal of the Judge or Federal Magistrate in accordance with paragraph 72(ii) of the Constitution; or

                     (b)  the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated:

                              (i)  adversely affect, or have adversely affected, the performance of judicial or official duties by the Judge or Federal Magistrate; or

                             (ii)  have the capacity to adversely affect, or have adversely affected, the reputation of the Military Court.

58  After section 48

Insert:

48A   Protection of persons involved in handling etc. complaints

             (1)  In exercising powers or performing functions under paragraph 53(2)(c) and subsection 53(2A), or assisting in exercising those powers or performing those functions, a complaint handler has the same protection and immunity as a Justice of the High Court.

             (2)  In authorising a person or body under subsection 53(2B), the Chief Justice has the same protection and immunity as a Justice of the High Court.

             (3)  A witness requested to attend, or appearing, before a complaint handler handling a complaint has the same protection, and is subject to the same liabilities in a proceeding, as a witness in a case tried by the High Court.

             (4)  A legal practitioner assisting, or appearing on behalf of a person before, a complaint handler handling a complaint has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

59  At the end of subsection 53(2)

Add:

             ; and (c)  may deal, as set out in subsection (2A), with a complaint about the performance by another Judge or a Federal Magistrate of his or her judicial or official duties; and

                     (d)  may take any measures that the Chief Justice believes are reasonably necessary to maintain public confidence in the Military Court, including, but not limited to, temporarily restricting another Judge or a Federal Magistrate to non-sitting duties.

60  After subsection 53(2)

Insert:

          (2A)  The Chief Justice may, if a complaint is made about another Judge or a Federal Magistrate, deal with the complaint by doing either or both of the following in respect of the complaint:

                     (a)  deciding whether or not to handle the complaint and then doing one of the following:

                              (i)  dismissing the complaint;

                             (ii)  handling the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge or the Federal Magistrate;

                            (iii)  arranging for any other complaint handlers to assist the Chief Justice to handle the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge or the Federal Magistrate;

                     (b)  arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:

                              (i)  dismiss the complaint;

                             (ii)  handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge or the Federal Magistrate.

Note:          A complaint handler (other than the Chief Justice) may handle a complaint by referring it to the Chief Justice. The Chief Justice may then do either or both of the things referred to in paragraph (a) or (b) in respect of the complaint.

          (2B)  The Chief Justice may authorise, in writing, a person or a body to do one or more of the following:

                     (a)  assist the Chief Justice to handle complaints or a specified complaint;

                     (b)  decide whether or not to handle complaints or a specified complaint;

                     (c)  dismiss complaints or a specified complaint;

                     (d)  handle complaints or a specified complaint.

61  At the end of subsection 53(3)

Add:

Note:          See also section 48A.

62  At the end of subsection 53(4)

Add “, (2A) or (2B)”.

63  Application of items 55 to 63

The amendments made by items 55 to 63 of this Schedule apply on or after the commencement of this item in relation to a complaint, regardless of whether:

                     (a)  the complaint was made before, on or after that commencement; or

                     (b)  the circumstances that gave rise to the complaint occurred before, on or after that commencement.

Division 3—Amendments relating to suppression and non-publication orders

Australian Crime Commission Act 2002

64  Schedule 1

Omit:

Military Court of Australia Act 2012 , section 168

substitute:

Military Court of Australia Act 2012 , Part 11A

Military Court of Australia Act 2012

65  Section 3

Insert:

information , in Part 11A, includes any document.

66  Section 3

Insert:

news publisher means a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.

67  Section 3

Insert:

non-publication order means an order under Part 11A that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

68  Section 3 (definition of party )

Repeal the definition, substitute:

party , to a proceeding:

                     (a)  means the accused person and the Director of Military Prosecutions; and

                     (b)  in Part 11A, includes a victim (or alleged victim) in the proceeding and any person named in evidence given in a proceeding and, in relation to a proceeding that has concluded, means a person who was a party to the proceeding before the proceeding concluded.

69  Section 3

Insert:

publish , in Part 11A, means disseminate or provide access to the public or a section of the public by any means, including by:

                     (a)  publication in a book, newspaper, magazine or other written publication; or

                     (b)  broadcast by radio or television; or

                     (c)  public exhibition; or

                     (d)  broadcast or publication by means of the internet.

70  Section 3

Insert:

suppression order means an order under Part 11A that prohibits or restricts the disclosure of information (by publication or otherwise).

71  Subsection 79(1) (note)

Repeal the note, substitute:

Note:          The Military Court may make orders to protect witnesses, information, documents and other things (see section 167 and Part 11A).

72  Subsection 158(5)

Omit “subsection 157(3), 167(1) or 168(1)”, substitute “subsection 157(3) or 167(1) or Part 11A”.

73  Subsection 167(1) (note)

Repeal the note, substitute:

Note:          Part 11A deals with suppression and non-publication orders.

74  Section 168

Repeal the section.

75  After Part 11

Insert:

Part 11A Suppression and non-publication orders

Division 1 Introduction

180A   Guide to this Part

This Part deals with suppression orders and non-publication orders.

Division 2 deals with the interaction between this Part and other powers of the Military Court and other laws.

Division 3 provides for the Military Court to make suppression orders and non-publication orders and deals with matters relating to those orders.

Division 2 Effect of this Part on other powers and laws

180B   Powers of the Military Court not affected

                   This Part does not limit or otherwise affect any powers that the Military Court has apart from this Part to regulate its proceedings or to deal with a contempt of the Military Court.

180C   Other laws not affected

                   This Part does not limit or otherwise affect the operation of a provision made by or under any Act (other than this Act) that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.

180D   No limit on section 167

                   This Part does not limit section 167 (about protecting witnesses).

Division 3 Suppression and non-publication orders

180E   Safeguarding public interest in open justice

                   In deciding whether to make a suppression order or non-publication order, the Military Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

180F   Power to make orders

             (1)  The Military Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

                     (a)  information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Military Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Military Court; or

                     (b)  information that relates to a proceeding before the Military Court and is:

                              (i)  information that comprises evidence or information about evidence; or

                             (ii)  information obtained by the process of discovery; or

                            (iii)  information produced under a subpoena; or

                            (iv)  information lodged with or filed in the Military Court.

             (2)  The Military Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

180G   Grounds for making an order

             (1)  The Military Court may make a suppression order or non-publication order on one or more of the following grounds:

                     (a)  the order is necessary to prevent prejudice to the proper administration of justice;

                     (b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

                     (c)  the order is necessary to protect the safety of any person;

                     (d)  the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a proceeding involving an offence of a sexual nature (including an act of indecency).

             (2)  A suppression order or non-publication order must specify the ground or grounds on which the order is made.

180H   Procedure for making an order

             (1)  The Military Court may make a suppression order or non-publication order on its own initiative or on the application of:

                     (a)  a party to the proceeding concerned; or

                     (b)  any other person considered by the Military Court to have a sufficient interest in the making of the order.

             (2)  Each of the following persons is entitled to appear and be heard by the Military Court on an application for a suppression order or non-publication order:

                     (a)  the applicant for the order;

                     (b)  a party to the proceeding concerned;

                     (c)  the Government (or an agency of the Government) of the Commonwealth or a State or Territory;

                     (d)  a news publisher;

                     (e)  any other person who, in the Military Court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.

             (3)  A suppression order or non-publication order may be made at any time during a proceeding or after a proceeding has concluded.

             (4)  A suppression order or non-publication order may be made subject to such exceptions and conditions as the Military Court thinks fit and specifies in the order.

             (5)  A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which the order is made.

180J   Interim orders

             (1)  If an application is made to the Military Court for a suppression order or non-publication order, the Military Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Military Court, until the application is determined.

             (2)  If an order is made as an interim order, the Military Court must determine the application as a matter of urgency.

180K   Duration of orders

             (1)  A suppression order or non-publication order operates for the period decided by the Military Court and specified in the order.

             (2)  In deciding the period for which an order is to operate, the Military Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

             (3)  The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

180L   Exception for court officials

                   A suppression order does not prevent a person from disclosing information if the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity:

                     (a)  in connection with the conduct of a proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or

                     (b)  in compliance with any procedure adopted by the Military Court for informing a news publisher of the existence and content of a suppression order or non-publication order made by the Military Court.

180M   Contravention of order

             (1)  A person commits an offence if:

                     (a)  the person does an act or omits to do an act; and

                     (b)  the act or omission contravenes an order made by the Military Court under section 180F.

Penalty:  Imprisonment for 12 months, 60 penalty units or both.

             (2)  An act or omission that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.

             (3)  An act or omission that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.

             (4)  If an act or omission constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.