Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

Schedule 5 Application, saving and transitional provisions

Part 1 Definitions

1  Definitions

In this Schedule:

appeal proceedings completion day means the day declared under subitem 17(3) of this Schedule.

Defence Department means the Department of State that deals with defence and that is administered by the Defence Minister.

Defence Force Discipline Appeals Act 1955 means the Defence Force Discipline Appeals Act 1955 (including the regulations and other instruments under that Act) as in force immediately before the Military Court proceedings start day.

Defence Minister means the Minister administering the Defence Force Discipline Act 1982 .

Director of Defence Counsel Services has the same meaning as in the Defence Act 1903 , as in force on or after the Military Court proceedings start day.

main amendments and repeals means the amendments and repeals made by the following provisions of this Act:

                     (a)  Part 1 of Schedule 1;

                     (b)  items 1 to 5 and 8 to 15 of Schedule 2;

                     (c)  Schedule 4.

Military Court means the Military Court of Australia created by the Military Court Act.

Military Court Act means the Military Court of Australia Act 2012 .

Military Court proceedings start day means the day on which Part 1 of Schedule 1 to this Act commences.

new DFDA means the Defence Force Discipline Act 1982 (including the regulations, rules of procedure and other instruments under that Act) as in force on or after the Military Court proceedings start day.

old DFDA means the Defence Force Discipline Act 1982 (including the regulations, rules of procedure and other instruments under that Act) as in force immediately before the Military Court proceedings start day.

old law means the following laws, as in force immediately before the Military Court proceedings start day:

                     (a)  the Defence Force Discipline Act 1982 (including the regulations, rules of procedure and other instruments under that Act);

                     (b)  the Defence Force Discipline Appeals Act 1955 (including the regulations and other instruments under that Act);

                     (c)  the Defence Act 1903 (including the regulations and other instruments under that Act).

proceedings in relation to a charge includes the following:

                     (a)  dealing with the charge;

                     (b)  a trial of the charge;

                     (c)  taking action under Part IV of the old DFDA in respect of a conviction of the service offence to which the charge relates;

                     (d)  a review under Part VIIIA of the old DFDA of proceedings in relation to the charge;

                     (e)  an appeal or other proceeding in relation to the charge.

Registrar of Military Justice means the Registrar appointed under section 188FB of the old DFDA (including a Registrar appointed under that section as it continues to apply because of this Schedule).

service tribunal proceedings completion day means the day declared under subitem 16(1) of this Schedule.



 

Part 2 Proceedings in respect of service offences

2  Application of main amendments and repeals—general

(1)       The main amendments and repeals apply in relation to a service offence committed by a person on or after the Military Court proceedings start day.

(2)       The main amendments and repeals also apply in relation to a service offence committed by a person before the Military Court proceedings start day if:

                     (a)  the person had not been charged with the service offence before the Military Court proceedings start day; or

                     (b)  the person had been charged with the service offence before the Military Court proceedings start day, but proceedings to deal with the charge had not been commenced before that day.

3  Continued application of old law to proceedings that had not been finally determined before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  proceedings to deal with the charge had been commenced; and

                     (c)  proceedings in relation to the charge had not been finally determined.

(2)       Despite the main amendments and repeals and except as otherwise provided in subitems (3) and (4) and items 4 to 10 of this Schedule, the old law continues to apply in relation to the charge (including any amendment of the charge), and proceedings in relation to the charge, as if the main amendments and repeals had not happened.

(3)       Section 131B of the old DFDA does not apply in relation to a conviction by a summary authority of a service offence under the old DFDA as it continues to apply because of subitem (2).

(4)       This item has effect subject to sections 190B and 190C of the new DFDA.

Note:       Sections 190B and 190C of the new DFDA deal with the effect of a conviction of a service offence.

4  Charge not referred to a Defence Force magistrate before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  the person had not made an election under section 111C or 131AA of the old DFDA to have the charge tried by a court martial or Defence Force magistrate; and

                     (c)  the charge had not been referred to the Director of Military Prosecutions under subsection 129A(3) or section 131A of the old DFDA; and

                     (d)  the Director of Military Prosecutions had requested the Registrar of Military Justice to refer the charge to a Defence Force magistrate for trial; and

                     (e)  the Registrar of Military Justice had not referred the charge to a Defence Force magistrate for trial.

(2)       The Director of Military Prosecution’s request is taken to have been withdrawn immediately before the Military Court proceedings start day.

(3)       The main amendments and repeals apply in relation to the charge.

5  Order convening a court martial not signed before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  the person had not made an election under section 111C or 131AA of the old DFDA to have the charge tried by a court martial or Defence Force magistrate; and

                     (c)  the charge had not been referred to the Director of Military Prosecutions under subsection 129A(3) or section 131A of the old DFDA; and

                     (d)  the Director of Military Prosecutions had requested the Registrar of Military Justice to convene a court martial to try the charge; and

                     (e)  the request was not made under subsection 125(5) of the old DFDA; and

                      (f)  the Registrar of Military Justice had not signed an order convening a court martial to try the charge.

(2)       The Director of Military Prosecution’s request is taken to have been withdrawn immediately before the Military Court proceedings start day.

(3)       The main amendments and repeals apply in relation to the charge.

6  Proceedings before summary authority—plea to charge not required before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  a summary authority had commenced proceedings to deal with the charge; and

                     (c)  the person had not made an election under section 111C of the old DFDA to have the charge tried by a court martial or Defence Force magistrate; and

                     (d)  the person had not been required to enter a plea to the charge.

(2)       The main amendments and repeals apply in relation to the charge.

Note:       Under the new DFDA, the person may elect to have the charge tried by the Military Court: see Division 1 of Part VII of the new DFDA.

7  New trial ordered by reviewing authority—proceedings before court martial or Defence Force magistrate

(1)       In this item, review means a review under Part VIIIA of the old DFDA of proceedings before a court martial or a Defence Force magistrate.

(2)       Subitem (4) applies if, before the Military Court proceedings start day:

                     (a)  in a review, a reviewing authority had, under section 160 or 166 of the old DFDA, ordered a new trial of a person for a charge of a service offence; and

                     (b)  the Registrar of Military Justice had not:

                              (i)  referred the charge to a Defence Force magistrate for a new trial; or

                             (ii)  signed an order convening a court martial to retry the charge.

(3)       Subitem (4) also applies if, on or after the Military Court proceedings start day, in a review, a reviewing authority, under section 160 or 166 of the old DFDA (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(4)       The main amendments and repeals apply in relation to the charge as if the new trial had been ordered under section 160 or 166 of the new DFDA (as the case requires).

Note:       The charge may be dealt with by the Director of Military Prosecutions under section 103B of the new DFDA.

8  New trial ordered by reviewing authority—proceedings before summary authority

(1)       In this item, review means a review under Part VIIIA of the old DFDA of proceedings before a summary authority.

(2)       Subitem (4) applies if, before the Military Court proceedings start day:

                     (a)  in a review, a reviewing authority had, under section 160 of the old DFDA, ordered a new trial of a person for a charge of a service offence; and

                     (b)  the person had not been required to enter a plea to the charge at a new trial.

(3)       Subitem (4) also applies if, on or after the Military Court proceedings start day, in a review, a reviewing authority, under section 160 of the old DFDA (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(4)       The main amendments and repeals apply in relation to the charge as if the new trial had been ordered under section 160 of the new DFDA.

Note:       Under the new DFDA, the person may elect to have the charge tried by the Military Court: see Division 1 of Part VII of the new DFDA.

9  New trial ordered by the Defence Force Discipline Appeal Tribunal

(1)       Subitem (3) applies if, before the Military Court proceedings start day:

                     (a)  the Defence Force Discipline Appeal Tribunal had, under section 24 of the Defence Force Discipline Appeals Act 1955 , ordered a new trial of a person for a charge of a service offence; and

                     (b)  the Registrar of Military Justice had not:

                              (i)  referred the charge to a Defence Force magistrate for a new trial; or

                             (ii)  signed an order convening a court martial to retry the charge.

(2)       Subitem (3) also applies if, on or after the Military Court proceedings start day, the Defence Force Discipline Appeal Tribunal, under section 24 of the Defence Force Discipline Appeals Act 1955 (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(3)       The main amendments and repeals apply in relation to the charge:

                     (a)  in the same way as they apply in relation to a charge to which section 103F of the new DFDA applies; and

                     (b)  as if the reference in subsection 103F(3) of the new DFDA to the Military Court order were a reference to the Defence Force Discipline Appeal Tribunal order.

Note:       The Director of Military Prosecutions may direct that the charge be not proceeded with or institute a proceeding for a new trial in respect of the charge in the Military Court.

10  New trial ordered by the Federal Court

(1)       Subitem (3) applies if, before the Military Court proceedings start day:

                     (a)  the Federal Court of Australia had, under paragraph 52(5)(c) of the Defence Force Discipline Appeals Act 1955 , ordered a new trial of a person for a charge of a service offence; and

                     (b)  the Registrar of Military Justice had not:

                              (i)  referred the charge to a Defence Force magistrate for a new trial; or

                             (ii)  signed an order convening a court martial to retry the charge.

(2)       Subitem (3) also applies if, on or after the Military Court proceedings start day, the Federal Court of Australia, under paragraph 52(5)(c) of the Defence Force Discipline Appeals Act 1955 (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(3)       The main amendments and repeals apply in relation to the charge:

                     (a)  in the same way as they apply in relation to a charge to which section 103F of the new DFDA applies; and

                     (b)  as if the reference in subsection 103F(3) of the new DFDA to the Military Court order were a reference to the Federal Court order.

Note:       The Director of Military Prosecutions may direct that the charge be not proceeded with or institute a proceeding for a new trial in respect of the charge in the Military Court.

11  Charges laid before Military Court proceedings start day

Charges laid by an authorised member of the Defence Force

(1)       If:

                     (a)  before the Military Court proceedings start day:

                              (i)  a person had been charged with a service offence under subparagraph 87(1)(a)(i) of the old DFDA; and

                             (ii)  a copy of the charge had been given to the person under subparagraph 87(1)(a)(ii) of the old DFDA; and

                            (iii)  the person had been ordered to appear before a summary authority under subparagraph 87(1)(a)(iii) of the old DFDA; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then:

                     (c)  the charge is taken to have been laid under subparagraph 87(1)(a)(i) of the new DFDA; and

                     (d)  the copy of the charge is taken to have been given to the person under subparagraph 87(1)(a)(ii) of the new DFDA; and

                     (e)  the person is taken to have been ordered to appear before a summary authority under subparagraph 87(1)(a)(iii) of the new DFDA.

Charges laid by the Director of Military Prosecutions

(2)       If:

                     (a)  before the Military Court proceedings start day:

                              (i)  the Director of Military Prosecutions had charged a person with a service offence under subparagraph 87(1)(a)(i) of the old DFDA; and

                             (ii)  a copy of the charge had been given to the person under subparagraph 87(1)(a)(ii) of the old DFDA; and

                            (iii)  the Director of Military Prosecutions had acted under subparagraph 87(1)(c)(i) of the old DFDA in relation to the charge; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then:

                     (c)  the charge is taken to have been laid by the Director of Military Prosecutions under paragraph 87(1A)(a) of the new DFDA; and

                     (d)  the copy of the charge is taken to have been given to the person under paragraph 87(1A)(b) of the new DFDA; and

                     (e)  the Director of Military Prosecutions is taken to have acted under subparagraph 87(1A)(c)(i) of the new DFDA in relation to the charge.

(3)       If:

                     (a)  before the Military Court proceedings start day:

                              (i)  the Director of Military Prosecutions had charged a person with a service offence under subparagraph 87(1)(a)(i) of the old DFDA; and

                             (ii)  a copy of the charge had been given to the person under subparagraph 87(1)(a)(ii) of the old DFDA; and

                            (iii)  the Director of Military Prosecutions had made a request under subparagraph 87(1)(c)(ii) or (iii) of the old DFDA in relation to the charge; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then:

                     (c)  the charge is taken to have been laid by the Director of Military Prosecutions under paragraph 87(1A)(a) of the new DFDA; and

                     (d)  the copy of the charge is taken to have been given to the person under paragraph 87(1A)(b) of the new DFDA; and

                     (e)  the Director of Military Prosecutions may act under paragraph 87(1A)(c) of the new DFDA in relation to the charge.

Summonses

(4)       If:

                     (a)  before the Military Court proceedings start day, a person had been charged with a service offence specified in a summons prepared under paragraph 87(1)(b) of the old DFDA; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then the summons continues to have effect on and after the Military Court proceedings start day as if it had been prepared under paragraph 87(1)(b) of the new DFDA.



 

Part 3 Office-holders

12  Chief Judge Advocate

Application

(1)       This item applies in relation to the person who was taken to have been appointed as the Chief Judge Advocate by force of item 2 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 .

Appointment continues in force on and after Military Court proceedings start day

(2)       If the person’s appointment as the Chief Judge Advocate continued to be in force immediately before the Military Court proceedings start day, the appointment is taken to continue in force on and after that day, by force of this item, on the same terms and conditions as to remuneration, allowances and recreation and other leave entitlements as applied to the person under item 2 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 immediately before that day.

(3)       For the purposes of subitem (2) and despite the repeal of Division 2 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, that Division (other than subsection 188A(3) and section 188E) continues to apply, on and after the Military Court proceedings start day, in relation to the person as if the repeal had not happened.

(4)       The person does not hold a public office within the meaning of the Remuneration Tribunal Act 1973 .

(5)       The person must not engage in employment outside the duties of his or her office as Chief Judge Advocate, other than as a member of the Australian Defence Force.

(6)       The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.

(7)       Unless the person’s appointment has ceased to be in force before the service tribunal proceedings completion day, the appointment ceases to be in force at the beginning of that day.

Delegations continue in force on and after Military Court proceedings start day

(8)       Despite the repeal of Division 2 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, a delegation by the Judge Advocate General to the person as Chief Judge Advocate, that was in force under subsection 188B(2) of that Division immediately before the Military Court proceedings start day, continues in force on and after that day as if that Division had not been repealed.

Benefits on ceasing to hold office

(9)       For the purposes of subitem 3(3) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 , suitable alternative employment in relation to the person does not include the person holding office as the Chief Judge Advocate on or after the Military Court proceedings start day by force of this item.

(10)     For the purposes of subitem 3(6) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 , the number of months during which the person held office as Chief Judge Advocate on or after the commencement day (within the meaning of that Schedule) includes the number (if any) of months the person held office as the Chief Judge Advocate on or after the Military Court proceedings start day by force of this item.

13  Judge advocates

Application

(1)       This item applies in relation to a person who was taken to have been appointed as a member of the judge advocates’ panel by force of item 4 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 .

Appointment continues in force on and after Military Court proceedings start day

(2)       If the person’s appointment as a member of the judge advocates’ panel continued to be in force immediately before the Military Court proceedings start day, the appointment is taken to continue in force on and after that day, by force of this item, on the same terms and conditions as to remuneration, allowances and recreation and other leave entitlements as applied to the person under item 4 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 immediately before the Military Court proceedings start day.

Note:       The person may be reappointed as a member of the judge advocates’ panel under subsection 196(2B) of the new DFDA.

(3)       The person does not hold a public office within the meaning of the Remuneration Tribunal Act 1973 .

(4)       The person must not engage in employment outside the duties of his or her office as a member of the judge advocates’ panel, other than as a member of the Australian Defence Force.

(5)       The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.

(6)       Unless the person’s appointment has ceased to be in force before the service tribunal proceedings completion day, the appointment ceases to be in force at the beginning of that day.

Benefits on ceasing to hold office

(7)       For the purposes of subitem 5(3) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 , suitable alternative employment in relation to the person does not include the person holding office as a member of the judge advocates’ panel on or after the Military Court proceedings start day by force of this item.

(8)       For the purposes of subitem 5(6) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 , the number of months during which the person held office as a judge advocate on or after the commencement day (within the meaning of that Schedule) includes the number (if any) of months the person held office as a member of the judge advocates’ panel on or after the Military Court proceedings start day by force of this item.

14  Defence Force magistrates

(1)       This item applies in relation to a person who held office, immediately before the Military Court proceedings start day, as a Defence Force magistrate under section 127 of the old DFDA.

(2)       Despite the repeal of Division 4 of Part VII of the old DFDA by item 84 of Schedule 1 to this Act, the person’s appointment as a Defence Force magistrate continues in force, on and after the Military Court proceedings start day, under that Division ( continuing Division 4 ) as if the repeal had not happened.

(3)       Unless the person’s appointment under continuing Division 4 has ceased to be in force before the service tribunal proceedings completion day, the appointment ceases to be in force at the beginning of that day.

(4)       The person is also taken to have been appointed, on the Military Court proceedings start day, as a Defence Force magistrate under clause 24 of Schedule 3B to the new DFDA.

15  Registrar of Military Justice

Existing appointment continues in force on and after Military Court proceedings start day

(1)       Subitems (2) and (3) apply in relation to the person who held office, immediately before the Military Court proceedings start day, as the Registrar of Military Justice under section 188FB of the old DFDA.

(2)       Despite the repeal of Division 3 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, the person’s appointment as the Registrar of Military Justice continues in force, on and after the Military Court proceedings start day, under that Division as if the repeal had not happened.

(3)       Unless the person’s appointment has ceased to be in force before the service tribunal proceedings completion day, the person’s appointment ceases to be in force at the beginning of that day.

Appointments etc. on or after Military Court proceedings start day

(4)       Despite the repeal of Division 3 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act:

                     (a)  a person may be appointed or reappointed as the Registrar of Military Justice, or appointed to act as the Registrar of Military Justice, on or after the Military Court proceedings start day; and

                     (b)  for that purpose, Division 3 of Part XI of the old DFDA continues in force;

as if the repeal had not happened.

(5)       An appointment or reappointment referred to in subitem (4) ceases to be in force on the service tribunal proceedings completion day if it has not already ceased to be in force before that day.

Delegations continue in force on and after Military Court proceedings start day

(6)       Despite the repeal of Division 3 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, a delegation by the Registrar of Military Justice, that was in force under section 188FM of that Division immediately before the Military Court proceedings start day, continues in force on and after that day as if the repeal had not happened.

Certificates stating amounts of fines due and payable or amounts due and payable under reparation orders

(7)       Despite the amendments of section 175 of the old DFDA by items 142, 143 and 144 of Schedule 1 to this Act and the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a certificate that was issued by the Registrar of Military Justice under subsection 175(1) of the old DFDA before the Military Court proceedings start day:

                     (a)  is to be received, on or after that day, in any civil court (within the meaning of the new DFDA) without further proof; and

                     (b)  is prima facie evidence of the facts stated in it.

16  Declaration of service tribunal proceedings completion day

(1)       The Defence Minister must declare a specified day to be the service tribunal proceedings completion day .

(2)       The day to be specified must be a day after all proceedings before a court martial or a Defence Force magistrate, in relation to a charge to which the old law applies, have been completed.

(3)       A declaration made under subitem (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.



 

Part 4 Abolition of Defence Force Discipline Appeal Tribunal

17  Defence Force Discipline Appeal Tribunal continues in existence after Military Court proceedings start day

(1)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, the Defence Force Discipline Appeal Tribunal, as constituted under the Defence Force Discipline Appeals Act 1955 , is taken to continue to exist, on and after the Military Court proceedings start day, as if the repeal had not happened.

(2)       The Defence Force Discipline Appeal Tribunal is abolished at the beginning of the appeal proceedings completion day.

(3)       The Attorney-General must declare a specified day to be the appeal proceedings completion day .

(4)       The day to be specified must be a day after all proceedings before the Defence Force Discipline Appeal Tribunal or the Federal Court of Australia under the old law have been finally determined.

(5)       A declaration made under subitem (3) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.

18  Tribunal members

(1)       Subitem (2) applies to a person if, immediately before the Military Court proceedings start day, the person held office (the relevant office ) under the Defence Force Discipline Appeals Act 1955 as the President or the Deputy President, or as a member, of the Defence Force Discipline Appeal Tribunal.

(2)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act:

                     (a)  the person continues to hold the relevant office for the balance of the term of his or her term of appointment, or until the appeal proceedings completion day (if that day occurs before the end of the term of the appointment), on the terms and conditions provided in the Defence Force Discipline Appeals Act 1955 ; and

                     (b)  the Defence Force Discipline Appeals Act 1955 continues to apply in relation to the performance by the person of his or her functions as the holder of the relevant office for so long as he or she continues to hold that office;

as if the repeal had not happened.

(3)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a person may be appointed, or reappointed, as the President or the Deputy President, or as a member, of the Defence Force Discipline Appeal Tribunal, on or after the Military Court proceedings start day, as if the repeal had not happened.

(4)       An appointment or reappointment referred to in subitem (3) ceases to be in force at the beginning of the appeal proceedings completion day if it has not already ceased to be in force before that day.

19  Registrar and Deputy Registrars of the Tribunal

(1)       Subitem (2) applies to a person if, immediately before the Military Court proceedings start day, the person held office (the relevant office ) under the Defence Force Discipline Appeals Act 1955 as the Registrar or a Deputy Registrar of the Defence Force Discipline Appeal Tribunal.

(2)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act:

                     (a)  the person continues to hold the relevant office for the balance of the term of his or her term of appointment, or until the appeal proceedings completion day (if that day occurs before the end of the term of the appointment), on the terms and conditions provided in the Defence Force Discipline Appeals Act 1955 ; and

                     (b)  the Defence Force Discipline Appeals Act 1955 continues to apply in relation to the performance by the person of his or her functions as the holder of the relevant office for so long as he or she continues to hold that office;

as if the repeal had not happened.

(3)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a person may be appointed, or reappointed, as the Registrar or a Deputy Registrar of the Defence Force Discipline Appeal Tribunal, on or after the Military Court proceedings start day, as if the repeal had not happened.

(4)       An appointment or reappointment referred to in subitem (3) ceases to be in force at the beginning of the appeal proceedings completion day if it has not already ceased to be in force before that day.

20  Offences in relation to the Tribunal

Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a prosecution may be instituted, on or after the Military Court proceedings start day, in respect of an offence against Part IV of the Defence Force Discipline Appeals Act 1955 , as that Act continues to apply because of this Schedule.

21  Recovery of fines etc.

Despite the amendment of section 174 of the old DFDA by item 141 of Schedule 1 to this Act and the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, the following amounts may be recovered, on or after the Military Court proceedings start day, under section 174 of the old DFDA, as if the amendment and repeal had not happened:

                     (a)  an amount that is due and payable of a fine imposed on a person by the Defence Force Discipline Appeal Tribunal on or after the Military Court proceedings start day under the old DFDA or the Defence Force Discipline Appeals Act 1955 , as those Acts continue to apply because of this Schedule;

                     (b)  an amount that is due and payable under a reparation order made against a person by the Defence Force Discipline Appeal Tribunal on or after the Military Court proceedings start day under the old DFDA or the Defence Force Discipline Appeals Act 1955 , as those Acts continue to apply because of this Schedule.

22  Evidence of fines etc.

(1)       A person who is an authorized officer for the purposes of section 175 of the new DFDA, or a person appointed or engaged under the Public Service Act 1999 performing duties in the Defence Department, may issue a certificate stating that:

                     (a)  a specified amount of a fine imposed on a person by the Defence Force Discipline Appeal Tribunal is due and payable by a specified person; or

                     (b)  a specified amount is due and payable by a specified person under a reparation order made against a person by the Defence Force Discipline Appeal Tribunal.

(2)       Subitem (1) applies in relation to a fine imposed by the Defence Force Discipline Appeal Tribunal, or a reparation order made by that Tribunal, before, on or after the Military Court proceedings start day.

(3)       A certificate purporting to be issued under subitem (1) and purporting to be signed by a person who is an authorized officer for the purposes of section 175 of the new DFDA, or a person appointed or engaged under the Public Service Act 1999 performing duties in the Defence Department:

                     (a)  is to be received in any civil court (within the meaning of the new DFDA) without further proof; and

                     (b)  is prima facie evidence of the facts stated in it.

23  Continuation of exception under Age Discrimination Act 2004

Despite the repeal of table item 22 of Schedule 1 to the Age Discrimination Act 2004 by item 6 of Schedule 3 to this Act, table item 22 of Schedule 1 to the Age Discrimination Act 2004 continues to apply, on and after the Military Court proceedings start day, in relation to anything done in direct compliance with the Defence Force Discipline Appeals Act 1955 , as that Act continues to apply because of this Schedule.



 

Part 5 Other provisions

24  Transitional—superior authorities

(1)       This item applies to an officer who was a superior authority for the purposes of paragraphs 5A(a) and (b) of the old DFDA.

(2)       The officer is taken to also be a superior authority for the purposes of paragraphs 5A(aa) and (ab) of the new DFDA.

25  Saving—authorised members of the Defence Force

Despite the repeal of subsection 87(6) of the old DFDA by item 60 of Schedule 1 to this Act, an authorisation that was in force under that subsection immediately before the Military Court proceedings start day continues in force on and after that day as if it were an authorisation made under subsection 87(7) of the new DFDA.

26  Saving—authorisation of officers for the purposes of section 90

(1)       This item applies to an authorisation of an officer, or an officer included in a class of officers, that was in force immediately before the Military Court proceedings start day for the purposes of section 90 of the old DFDA.

(2)       The authorisation continues in force on and after the Military Court proceedings start day as if it were an authorisation for the purposes of section 90 of the new DFDA.

27  Application—persons in custody of commanding officer

Despite the amendment of section 95 of the old DFDA by item 65 of Schedule 1 to this Act, that section, as in force immediately before the Military Court proceedings start day, continues to apply on and after that day in relation to a person who was charged before the Military Court proceedings start day under subsection 95(2) of the old DFDA.

28  Saving—list of legal officers

A list that was in force immediately before the Military Court proceedings start day under subsection 101F(2) of the old DFDA continues in force on and after that day as if it had been established by the Director of Defence Counsel Services under subsection 101F(2) of the new DFDA.

29  Saving—authorisation of officers for the purposes of section 101X

(1)       This item applies to an authorisation of an officer, or an officer included in a class of officers, that was in force immediately before the Military Court proceedings start day for the purposes of section 101X of the old DFDA.

(2)       The authorisation continues in force on and after the Military Court proceedings start day as if it were an authorisation for the purposes of section 101X of the new DFDA.

30  Saving—authorisation of officers for the purposes of section 101Y

(1)       This item applies to an authorisation of an officer, or an officer included in a class of officers, that was in force immediately before the Military Court proceedings start day for the purposes of section 101Y of the old DFDA.

(2)       The authorisation continues in force on and after the Military Court proceedings start day as if it were an authorisation for the purposes of section 101Y of the new DFDA.

31  Saving—Court Martial and Defence Force Magistrate Rules

Despite the repeal of section 149A of the old DFDA by item 105 of Schedule 1 to this Act, the Court Martial and Defence Force Magistrate Rules, as in force immediately before the Military Court proceedings start day, continue in force on and after that day for the purpose of proceedings before a court martial or a Defence Force magistrate in relation to a charge to which the old law continues to apply because of this Schedule.

32  Saving—non-publication orders etc. in proceedings before a court martial or Defence Force magistrate

Orders to continue in force

(1)       Despite the repeal of section 140 of the old DFDA by item 93 of Schedule 1 to this Act, an order that was in force immediately before the Military Court proceedings start day under subsection 140(2) of the old DFDA continues in force on and after that day as if the repeal had not happened.

Offence in relation to orders under section 140 of the old DFDA

(2)       Despite the amendments of section 90 of the Defence Act 1903 by items 10, 11 and 12 of Schedule 2 to this Act, that section, as in force immediately before the Military Court proceedings start day:

                     (a)  continues to apply in relation to an order made before the Military Court proceedings start day under section 140 of the old DFDA; and

                     (b)  also applies in relation to an order made on or after the Military Court proceedings start day under section 140 of the old DFDA, as that section continues to apply because of this Schedule.

33  Saving—things done under the old law before the Military Court proceedings start day

To avoid doubt, the main amendments and repeals do not affect the validity of anything done under the old law before the Military Court proceedings start day.

34  Application—amendments of service offences

(1)       The amendments and repeals made by Part 2 of Schedule 1 to this Act apply in relation to acts and omissions that take place after the commencement of this Part.

(2)       For the purposes of this item, if an act or omission is alleged to have taken place between 2 dates, one before and one after the commencement of Part 2 of Schedule 1 to this Act, the act or omission is alleged to have taken place before that commencement.

35  Application—definition of Federal Magistrate in Acts Interpretation Act 1901

The amendments of section 16C of the Acts Interpretation Act 1901 made by items 2 and 3 of Schedule 3 apply, on and after the commencement of those items, in relation to Acts enacted before, on or after that commencement.



 

Part 6 Regulations

36  Regulations may deal with transitional etc. matters

The Governor-General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments and repeals made by this Act.