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Defence Legislation Amendment Bill 2006

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2004-2005-2006

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Defence Legislation Amendment Bill 2006

 

 

(1)     Schedule 1, item 5, page 3 (line 24), omit “table in”, substitute “table in clause 1 of”.

[classes of offences]

(2)     Schedule 1, item 6, page 4 (line 1), omit “table in”, substitute “table in clause 1 of”.

[classes of offences]

(3)     Schedule 1, item 7, page 4 (line 6), omit “table in”, substitute “table in clause 1 of”.

[classes of offences]

(4)     Schedule 1, item 7, page 4 (line 10), after “imprisonment”, insert “or is not punishable by imprisonment”.

[classes of offences]

(5)     Schedule 1, item 7, page 4 (line 12), omit “table in”, substitute “table in clause 1 of”.

[classes of offences]

(6)     Schedule 1, item 8, page 4 (line 16), omit “or 188AQ”.

[no reappointment]

(7)     Schedule 1, item 8, page 4 (after line 16), after paragraph (a) of the definition of Military Judge in subsection 3(1), insert:

                    (aa)  except in Divisions 2 and 2A of Part XI, a person appointed as an acting Military Judge under section 188BB; and

[acting Military Judges]

(8)     Schedule 1, item 11, page 5 (after line 8), after subsection 114(1), insert:

          (1A)  The Australian Military Court is a court of record.

[court of record]

(9)     Schedule 1, item 11, page 7 (line 26), omit subsection 122(1), substitute:

             (1)  There are to be:

                     (a)  12 members on a military jury for a trial of a class 1 offence; and

                     (b)  6 members on a military jury for a trial of a class 2 offence or class 3 offence.

[military jury]

(10)   Schedule 1, item 11, page 9 (lines 1 to 4), omit subsections 124(2) and (3), substitute:

             (2)  A decision of a military jury on the questions in subsection (1) is to be made by:

                     (a)  unanimous agreement of the jury members; or

                     (b)  if the conditions in subsection (3) are met—five-sixths majority agreement of the jury members.

             (3)  The conditions are:

                     (a)  the jury has deliberated for at least 8 hours; and

                     (b)  the jury does not have unanimous agreement after that time but does have five-sixths majority agreement; and

                     (c)  the Australian Military Court is satisfied that:

                              (i)  the period of time for deliberation is reasonable, having regard to the nature and complexity of the case; and

                             (ii)  after examination on oath or affirmation of one or more of the jurors, it is unlikely that the jurors would reach unanimous agreement after further deliberation.

             (4)  A military jury must sit without any other person present when deciding the questions in subsection (1).

[military jury]

(11)   Schedule 1, page 12 (after line 32), after item 13, insert:

13A  Section 148

Before “A service”, insert “(1)”.

13B  At the end of section 148

Add:

             (2)  The Australian Military Court may order that the whole or a specified part of a record under subsection (1) that relates to proceedings before the Court is not to be published if the Court considers that such a publication would be inappropriate, taking account of the interests of the security or defence of Australia, the proper administration of justice, public morals or any other matter it considers relevant.

[court of record]

(12)   Schedule 1, item 17, page 19 (line 8), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(13)   Schedule 1, item 17, page 19 (lines 10 and 11), omit subsection 188AC(2), substitute:

             (2)  The Chief Military Judge holds office for 10 years.

Note:          If, before the expiration of the term of appointment, the Chief Military Judge retires from the Australian Defence Force, he or she ceases to be the Chief Military Judge on retirement: see paragraph 188AL(2)(b).

[term of appointment]

(14)   Schedule 1, item 17, page 19 (lines 12 and 13), omit subsection 188AC(3), substitute:

             (3)  A person must not be appointed as the Chief Military Judge if the person has been a Chief Military Judge.

Note:          However, the person may be appointed as an acting Military Judge under section 188BB.

[no reappointment]

(15)   Schedule 1, item 17, page 21 (line 4), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(16)   Schedule 1, item 17, page 21 (line 6), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(17)   Schedule 1, item 17, page 21 (lines 10 to 12), omit section 188AJ, substitute:

188AJ   No promotion other than automatic mid-term promotion

             (1)  Subject to subsection (2), the Chief Military Judge is not eligible for a promotion in rank during the period he or she is the Chief Military Judge.

             (2)  The Chief Military Judge is, by force of this subsection, promoted to the next rank on the 5 year anniversary of his or her appointment as Chief Military Judge.

             (3)  However, subsection (2) does not apply if the Chief Military Judge already holds the naval rank of Rear Admiral or the rank of Major-General or Air Vice-Marshal.

[automatic promotion]

(18)   Schedule 1, item 17, page 21 (lines 13 to 15), omit section 188AK, substitute:

188AK   Resignation

             (1)  The Chief Military Judge may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect 3 months, or such shorter period agreed to by the Governor-General, after it is given.

[Governor-General; resignation]

(19)   Schedule 1, item 17, page 21 (line 17), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(20)   Schedule 1, item 17, page 22 (lines 5 to 7), omit section 188AM.

[no retirement from Defence Force]

(21)   Schedule 1, item 17, page 22 (line 9), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(22)   Schedule 1, item 17, page 22 (line 27), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(23)   Schedule 1, item 17, page 23 (after line 3), at the end of subsection 188AP(3), add:

Note:          This subsection does not prevent the appointment of additional acting Military Judges: see section 188BB.

[acting Military Judges]

(24)   Schedule 1, item 17, page 23 (lines 4 and 5), omit subsection 188AP(4), substitute:

             (4)  A Military Judge holds office for 10 years.

Note:          If, before the expiration of the term of appointment, a Military Judge retires from the Australian Defence Force, he or she ceases to be a Military Judge on retirement: see paragraphs 188AZ(2)(b) and (c).

[term of appointment]

(25)   Schedule 1, item 17, page 23 (after line 5), after subsection 188AP(4), insert:

          (4A)  A person must not be appointed as a Military Judge if the person has been a Chief Military Judge or a Military Judge.

Note:          However, the person may be appointed as the Chief Military Judge under section 188AC or as an acting Military Judge under section 188BB.

[no reappointment]

(26)   Schedule 1, item 17, page 23 (lines 8 to 31), omit section 188AQ, substitute:

188AQ   Appointment of part-time Military Judge not to affect tenure etc.

                   If a person:

                     (a)  holds the judicial office of justice, judge or magistrate of a federal court; and

                     (b)  is appointed, or serves, as a part-time Military Judge;

the appointment or service does not affect his or her:

                     (c)  tenure of that judicial office; or

                     (d)  rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of that judicial office;

and, for all purposes, his or her service as a part-time Military Judge is taken to be service as the holder of that judicial office.

[part-time and acting Military Judges; no reappointment]

(27)   Schedule 1, item 17, page 25 (after line 29), at the end of section 188AU, add:

Special rules for part-time Military Judges

             (4)  If a person:

                     (a)  is a justice, judge or magistrate of a federal court, or of a State or Territory court; and

                     (b)  is appointed as a part-time Military Judge; and

                     (c)  receives salary or annual allowance as such a justice, judge or magistrate for the period of the appointment as a part-time Military Judge;

then he or she is not entitled to remuneration under this Act for that period.

             (5)  If a person is a justice, judge or magistrate of a State or Territory court, the Minister may, for the purpose of appointing the person as a part-time Military Judge, enter into such arrangement with the appropriate State or Territory Minister as is necessary to secure the person’s services.

             (6)  An arrangement under subsection (5) with a State or Territory Minister may provide for the Commonwealth to reimburse the State or Territory with respect to the services of the person to whom the arrangement relates.

[part-time and acting Military Judges]

(28)   Schedule 1, item 17, page 26 (line 4), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(29)   Schedule 1, item 17, page 26 (line 6), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(30)   Schedule 1, item 17, page 26 (lines 15 to 18), omit section 188AX, substitute:

188AX   No promotion other than automatic mid-term promotion

             (1)  Subject to subsection (2), a Military Judge is not eligible for a promotion in rank during the period he or she is a Military Judge.

             (2)  A Military Judge is, by force of this subsection, promoted to the next rank on the 5 year anniversary of his or her appointment as a Military Judge.

             (3)  However, subsection (2) does not apply if the Military Judge already holds the naval rank of Commodore or the rank of Brigadier or Air Commodore.

[automatic promotion]

(31)   Schedule 1, item 17, page 26 (lines 19 to 21), omit section 188AY, substitute:

188AY   Resignation

             (1)  A Military Judge may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect 3 months, or such shorter period agreed to by the Governor-General, after it is given.

[Governor-General; resignation]

(32)   Schedule 1, item 17, page 26 (line 23), omit “Minister”, substitute “Governor-General”.

[Governor-General]

(33)   Schedule 1, item 17, page 27 (lines 16 to 20), omit section 188BA.

[no retirement from Defence Force]

(34)   Schedule 1, item 17, page 27 (after line 20), after section 188BA, insert:

188BB   Acting Military Judges

Recommendation to appoint an acting Military Judge

             (1)  If , after receiving advice from the Chief Military Judge, the Minister considers that a charge that has been, or will be, referred to the Australian Military Court requires the experience or expertise of a person who:

                     (a)  has been a Chief Military Judge or Military Judge; or

                     (b)  is, or has been, a justice, judge or magistrate of a federal court, or of a State or Territory court;

the Minister may make a recommendation to the Governor-General that the person be appointed to act as a Military Judge to try the charge and, in the case of a conviction, take action under Part IV.

Appointment

             (2)  If the Minister makes such a recommendation, the Governor-General may, by written instrument, appoint the person as an acting Military Judge.

Qualifications

             (3)  However, the Governor-General must not appoint the person unless:

                     (a)  the person is enrolled as a legal practitioner and has been so enrolled for not less than 5 years; and

                     (b)  the person is a member of:

                              (i)  the Permanent Navy, the Regular Army or the Permanent Air Force; or

                             (ii)  the Reserves; and

                     (c)  the person holds a rank not lower than the naval rank of commander or the rank of lieutenant colonel or wing commander; and

                     (d)  the person meets the person’s individual service deployment requirements.

Term of appointment

             (4)  An acting Military Judge holds office for the period specified in the instrument of appointment. The instrument must provide that the period ends on:

                     (a)  if the proceedings for the charge are terminated without the accused person being acquitted or convicted—the day of the termination; or

.                    (b)  if the accused person is acquitted—the day of the acquittal; or

                     (c)  if the accused person is convicted—the day that action is taken under Part IV.

Appointment to be part-time

             (5)  An acting Military Judge holds office on a part-time basis.

Resignation

             (6)  An acting Military Judge may resign his or her appointment by giving the Governor-General a written resignation. The resignation takes effect 2 weeks after it is given.

Terms and conditions etc.

             (7)  The following provisions apply to an acting Military Judge as if a reference to “Military Judge” in those provisions included a reference to “acting Military Judge”:

                     (a)  section 188AQ (appointment not to affect tenure etc.);

                     (b)  section 188AT (oath or affirmation);

                     (c)  section 188AU (remuneration);

                     (d)  section 188AV (leave of absence);

                     (e)  subsection 188AW(2) (outside employment);

                      (f)  subsection 188AX(1) (no promotion);

                     (g)  section 188AZ, other than paragraph 188AZ(2)(b) (termination of appointment).

[acting Military Judges]

(35)   Schedule 1, item 19, page 28 (after line 9), after the note, insert:

1   Classes of offences

                   The following table sets out whether a service offence is a class 1 offence, class 2 offence or class 3 offence.

[classes of offences]

(36)   Schedule 1, item 19, page 31 (table items 96 to 101), omit the table items, substitute:

96

subsection 61(1), if clause 2 of this Schedule is satisfied

class 1

97

subsection 61(1), if clause 3 of this Schedule is satisfied

class 2

98

subsection 61(1), if clause 4 of this Schedule is satisfied

class 3

99

subsection 61(2), if clause 2 of this Schedule is satisfied

class 1

100

subsection 61(2), if clause 3 of this Schedule is satisfied

class 2

101

subsection 61(2), if clause 4 of this Schedule is satisfied

class 3

101A

subsection 61(3), if clause 2 of this Schedule is satisfied

class 1

101B

subsection 61(3), if clause 3 of this Schedule is satisfied

class 2

101C

subsection 61(3), if clause 4 of this Schedule is satisfied

class 3

[classes of offences]

(37)   Schedule 1, item 19, page 31 (before line 1), after the table, insert:

2   Section 61 offences that are class 1 offences

                   This clause is satisfied if:

                     (a)  for an offence against subsection 61(1)—section 63 applies to the offence; or

                     (b)  for an offence against subsection 61(2) or (3)—section 63 applies to the offence, or would apply if the offence were committed in Australia.

3   Section 61 offences that are class 2 offences

                   This clause is satisfied if clauses 2 and 4 are not satisfied.

4   Section 61 offences that are class 3 offences

                   This clause is satisfied if:

                     (a)  section 63 does not apply to the offence; and

                     (b)  any of the following apply:

                              (i)  the offence has a maximum penalty of not greater than 5 years imprisonment;

                             (ii)  the offence is not punishable by imprisonment;

                            (iii)  the offence may be heard and determined by a civil court of summary jurisdiction.

[classes of offences]

(38)   Schedule 1, Part 1, page 34 (after line 28), at the end of the Part, add:

Judges’ Pensions Act 1968

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

After “Magistrates Court”, insert “or the Australian Military Court”.

[pensions]

(39)   Schedule 1, page 35 (after line 8), after item 33, insert:

33A  Paragraph 89(1)(d)

Repeal the paragraph, substitute:

                     (d)  do any other act or thing that:

                              (i)  in the case of the Australian Military Court—constitutes a contempt of that court; and

                             (ii)  in the case of a service tribunal other than the Australian Military Court—would, if the service tribunal were a court of record, constitute a contempt of that court.

[court of record]

(40)   Schedule 1, page 37 (after line 16), after item 49, insert:

49A  Paragraph 53(4)(d)

Repeal the paragraph, substitute:

                     (d)  engages in any other conduct that:

                              (i)  in the case of the Australian Military Court—constitutes a contempt of that court; and

                             (ii)  in the case of a service tribunal other than the Australian Military Court—would, if the service tribunal were a court of record, constitute a contempt of that court.

[court of record]