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Defence Legislation Amendment Bill 2007

Schedule 1 Election for trial by the Australian Military Court

Part 1 Main amendments

Defence Force Discipline Act 1982

1  Subsection 3(1)

Insert:

Schedule 1A offence means:

                     (a)  an offence specified in Schedule 1A; or

                     (b)  an offence that is an ancillary offence in relation to an offence referred to in paragraph (a).

2  After section 111A

Insert:

111B   Accused person may elect to be tried by the Australian Military Court—election before commencement of trial

             (1)  At the commencement of dealing with a charge against a person in respect of a service offence (other than a prescribed offence), the summary authority must give the person an opportunity to elect, in accordance with section 111C, to have the charge tried by the Australian Military Court.

Note:          If a charge is tried by the Australian Military Court because of an election under subsection 111C(1), the charge will be tried by a Military Judge alone: see paragraph 132A(3)(b).

             (2)  Subsection (1) does not apply in relation to a charge in respect of a Schedule 1A offence, unless the person charged with the offence is:

                     (a)  an officer of or below the rank of rear admiral but above the rank of lieutenant commander; or

                     (b)  an officer of or below the rank of major-general but above the rank of major; or

                     (c)  an officer of or below the rank of air vice-marshal but above the rank of squadron leader.

             (3)  The accused person must be given an opportunity to obtain legal advice in relation to the election if a legal officer is reasonably available to give such advice.

111C   Decision by accused person whether to elect to be tried by the Australian Military Court—decision before commencement of trial

When election decision must be made

             (1)  If, under section 111B, a summary authority gives an accused person an opportunity to elect to have a charge tried by the Australian Military Court, the accused person must decide whether or not to make the election:

                     (a)  within 24 hours after the opportunity to make the election is given; or

                     (b)  if the exigencies of the service do not permit the person to make the decision within that time—within such longer period (not exceeding 14 days) as the summary authority allows.

             (2)  The summary authority must ensure that a decision under subsection (1) is recorded in writing.

Decision to elect to have charge tried by the Australian Military Court

             (3)  If the accused person elects to have the charge tried by the Australian Military Court, the summary authority must:

                     (a)  refer the charge (the first charge ) to the Director of Military Prosecutions; and

                     (b)  unless the Director of Military Prosecutions agrees otherwise, refer any other charge (including a charge in respect of a Schedule 1A offence) against the accused person that is linked to the first charge, and that is being dealt with together with the first charge, to the Director of Military Prosecutions; and

                     (c)  inform the Registrar that the charge or charges have been referred to the Director of Military Prosecutions.

             (4)  For the purposes of paragraph (3)(b), a charge (the first charge ) against a person is linked to another charge against the person if the first charge and the other charge arise from the same facts or circumstances.

Decision not to elect to have charge tried by the Australian Military Court

             (5)  If the accused person:

                     (a)  does not elect to have the charge tried by the Australian Military Court; or

                     (b)  does not make a decision within the time allowed under subsection (1);

the summary authority must deal with and try the charge.

Withdrawal of election

             (6)  An accused person who has elected to have a charge tried by the Australian Military Court may withdraw the election at any time before a date is fixed for hearing by the Court.

             (7)  If an accused person withdraws an election to have a charge tried by the Australian Military Court:

                     (a)  the Director of Military Prosecutions must inform the Registrar; and

                     (b)  the Director of Military Prosecutions must refer the charge, and any other charge referred to the Director of Military Prosecutions under paragraph (3)(b), to a summary authority; and

                     (c)  the summary authority must deal with and try the charge or charges.

3  Section 131

Repeal the section, substitute:

131   Accused person may elect to be tried by the Australian Military Court—election during trial

             (1)  This section applies to a trial by a superior summary authority, or a commanding officer, of a charge of a Schedule 1A offence (other than a custodial offence).

             (2)  However, this section does not apply to a trial by a superior summary authority if the accused person is an officer referred to in subsection 111B(2).

             (3)  If, during the trial, the summary authority considers:

                     (a)  that the evidence adduced by the prosecution is sufficient to support the charge; and

                     (b)  that, if the accused person were convicted, it would be appropriate to impose an elective punishment on the person;

the summary authority must, before making a finding in relation to the charge, give the accused person an opportunity to elect, in accordance with section 131AA, to have the charge tried by the Australian Military Court.

Note 1:       If a charge is tried by the Australian Military Court because of an election under subsection 131AA(1), the charge will be tried by a Military Judge alone: see paragraph 132A(3)(b).

Note 2:       See section 67 and Schedule 3 (in particular, subclauses 1(3) and (4) and 2(2) and (3) of that Schedule) in relation to the punishments that a superior summary authority or a commanding officer may impose on a person convicted of a Schedule 1A offence.

             (4)  The accused person must be given an opportunity to obtain legal advice in relation to the election if a legal officer is reasonably available to give such advice.

131AA   Decision by accused person whether to elect to be tried by the Australian Military Court—decision during trial

When election decision must be made

             (1)  If, under section 131, a summary authority gives an accused person an opportunity to elect to have a charge of a Schedule 1A offence tried by the Australian Military Court, the accused person must decide whether or not to make the election:

                     (a)  within 24 hours after the opportunity to make the election is given; or

                     (b)  if the exigencies of the service do not permit the person to make the decision within that time—within such longer period (not exceeding 14 days) as the summary authority allows.

             (2)  The summary authority must ensure that a decision under subsection (1) is recorded in writing.

Decision to elect to have charge tried by the Australian Military Court

             (3)  If the accused person elects to have the charge tried by the Australian Military Court, the summary authority must:

                     (a)  refer the charge (the first charge ) to the Director of Military Prosecutions; and

                     (b)  unless the Director of Military Prosecutions agrees otherwise, refer any other charge against the accused person that is linked to the first charge, and that is being tried together with the first charge, to the Director of Military Prosecutions; and

                     (c)  inform the Registrar that the charge or charges have been referred to the Director of Military Prosecutions.

             (4)  For the purposes of paragraph (3)(b), a charge (the first charge ) against a person is linked to another charge against the person if the first charge and the other charge arise from the same facts or circumstances.

Decision not to elect to have charge tried by the Australian Military Court

             (5)  If the accused person:

                     (a)  does not elect to have the charge tried by the Australian Military Court; or

                     (b)  does not make a decision within the time allowed under subsection (1);

the summary authority must proceed with the trial of the charge.

Withdrawal of election

             (6)  An accused person who has elected to have a charge tried by the Australian Military Court may withdraw the election at any time before a date is fixed for hearing by the Court.

             (7)  If an accused person withdraws an election to have a charge tried by the Australian Military Court:

                     (a)  the Director of Military Prosecutions must inform the Registrar; and

                     (b)  the Director of Military Prosecutions must refer the charge, and any other charge referred to the Director of Military Prosecutions under paragraph (3)(b), to the summary authority referred to in subsection 131(1); and

                     (c)  the summary authority must proceed with the trial of the charge or charges.

Punishments that may be imposed by summary authority

             (8)  If:

                     (a)  under subsection (5) or (7), a summary authority proceeds with the trial of a charge of a Schedule 1A offence; and

                     (b)  the summary authority convicts the accused person of the offence;

the summary authority may impose an elective punishment on the convicted person in respect of the offence.

4  Before paragraph 132A(3)(c)

Insert:

                     (b)  if the charge for the offence was referred to the Australian Military Court for trial because of an election by the accused person under subsection 111C(1) or 131AA(1)—the offence is to be tried by a Military Judge alone; and

5  Before Schedule 1

Insert:

Schedule 1A Certain disciplinary offences

Note:       See subsection 3(1).

   

 

Item

Offence against:

Subject matter

1

Subsection 23(1)

Absence from duty

2

Subsection 23(2)

Absence from duty

3

Subsection 24(1)

Absence without leave

4

Subsection 26(1)

Insubordinate conduct

5

Subsection 26(2)

Insubordinate conduct

6

Subsection 27(1)

Disobeying a lawful command

7

Subsection 29(1)

Failing to comply with a general order

8

Subsection 32(1)

Person on guard or on watch

9

Subsection 35(1)

Negligence in performance of a duty

10

Subsection 37(1)

Intoxicated while on duty etc.

11

Subsection 54A(1)

Custodial offences

12

Subsection 54A(2)

Custodial offences

13

Subsection 60(1)

Prejudicial conduct

14

Subsection 60(1A)

Prejudicial conduct

6  Schedule 3

Repeal the Schedule, substitute:

Schedule 3 Punishments that may be imposed by a summary authority

Note:       See section 67.

   

   

1   Punishments that may be imposed by a superior summary authority

Punishments that may be imposed on certain officers

             (1)  A superior summary authority may impose a punishment set out in column 3 of Table A of this Schedule on an officer referred to in column 2 of that Table who has been convicted of an offence.

 

Table A—Punishments that may be imposed by a superior summary authority on certain officers

Column 1

Item

Column 2

Convicted person

Column 3

Punishment

1

Officer:

(a) of or below the rank of rear admiral but above the rank of lieutenant commander; or

(b) of or below the rank of major-general but above the rank of major; or

(c) of or below the rank of air vice-marshal but above the rank of squadron leader

Fine not exceeding the amount of the convicted person’s pay for 7 days

Severe reprimand

Reprimand

Punishments that may be imposed on other persons

             (2)  A superior summary authority may impose an elective punishment, or a punishment set out in column 4 of Table B of this Schedule, on a person referred to in column 2 of that Table who has been convicted of an offence (other than a Schedule 1A offence).

             (3)  A superior summary authority may impose a punishment set out in column 4 of Table B of this Schedule on a person referred to in column 2 of that Table who has been convicted of a Schedule 1A offence.

             (4)  A superior summary authority may impose an elective punishment on a person referred to in column 2 of Table B of this Schedule who has been convicted of a Schedule 1A offence (other than a custodial offence) only in accordance with subsection 131AA(8).

 

Table B—Punishments that may be imposed by a superior summary authority on other persons

Column 1

Item

Column 2

Convicted person

Column 3

Elective punishment

Column 4

Other punishment

1

Officer of or below the rank of lieutenant commander, major or squadron leader

Warrant officer

Fine exceeding the amount of the convicted person’s pay for 7 days but not exceeding the amount of the convicted person’s pay for 14 days

Fine not exceeding the amount of the convicted person’s pay for 7 days

Severe reprimand

Reprimand

2

Person who is not a member of the Defence Force

Fine exceeding $100 but not exceeding $250

Fine not exceeding $100

2   Punishments that may be imposed by a commanding officer

             (1)  A commanding officer may impose an elective punishment, or a punishment set out in column 4 of Table C of this Schedule, on a person referred to in column 2 of that Table who has been convicted of an offence (other than a Schedule 1A offence).

             (2)  A commanding officer may impose a punishment set out in column 4 of Table C of this Schedule on a person referred to in column 2 of that Table who has been convicted of a Schedule 1A offence.

             (3)  A commanding officer may impose an elective punishment on a person referred to in column 2 of Table C of this Schedule who has been convicted of a Schedule 1A offence (other than a custodial offence) only in accordance with subsection 131AA(8).

 

Table C—Punishments that may be imposed by a commanding officer on convicted persons

Column 1

Item

Column 2

Convicted person

Column 3

Elective punishment

Column 4

Other punishment

1

Officer of or below the naval rank of lieutenant, the rank of captain in the Army or the rank of flight lieutenant

Warrant officer

Fine exceeding the amount of the convicted person’s pay for 7 days but not exceeding the amount of the convicted person’s pay for 14 days

Fine not exceeding the amount of the convicted person’s pay for 7 days

Severe reprimand

Reprimand

2

Non-commissioned officer

Reduction in rank by one rank or, in the case of a corporal of the Army, reduction in rank by one or 2 ranks

Forfeiture of seniority

Fine exceeding the amount of the convicted person’s pay for 7 days but not exceeding the amount of the convicted person’s pay for 14 days

Fine not exceeding the amount of the convicted person’s pay for 7 days

Severe reprimand

Reprimand

3

Member below non-commissioned rank who, at the time he or she committed the service offence of which he or she has been convicted, was on active service

Detention for a period exceeding 14 days but not exceeding 42 days

Fine exceeding the amount of the convicted person’s pay for 14 days but not exceeding the amount of the convicted person’s pay for 28 days

Detention for a period not exceeding 14 days

Fine not exceeding the amount of the convicted person’s pay for 14 days

Severe reprimand

Restriction of privileges for a period not exceeding 14 days

Extra duties for a period not exceeding 7 days

Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days

Reprimand

4

Member below non-commissioned rank who, at the time he or she committed the service offence of which he or she has been convicted, was not on active service

Detention for a period exceeding 7 days but not exceeding 28 days

Fine exceeding the amount of the convicted person’s pay for 7 days but not exceeding the amount of the convicted person’s pay for 28 days

Detention for a period not exceeding 7 days

Fine not exceeding the amount of the convicted person’s pay for 7 days

Severe reprimand

Restriction of privileges for a period not exceeding 14 days

Extra duties for a period not exceeding 7 days

Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days

Reprimand

5

Person who is not a member of the Defence Force

Fine exceeding $100 but not exceeding $250

Fine not exceeding $100

3   Punishments that may be imposed by a subordinate summary authority

                   A subordinate summary authority may impose a punishment set out in column 3 of Table D of this Schedule on a person referred to in column 2 of that Table who has been convicted of an offence.

 

Table D—Punishments that may be imposed by a subordinate summary authority on convicted persons

Column 1

Item

Column 2

Convicted person

Column 3

Punishment

1

Non-commissioned officer of, or below, the rank of leading seaman or corporal

Fine not exceeding the amount of the convicted person’s pay for 3 days

Severe reprimand

Reprimand

2

Member below non-commissioned rank

Fine not exceeding the amount of the convicted person’s pay for 3 days

Severe reprimand

Restriction of privileges for a period not exceeding 7 days

Stoppage of leave for a period not exceeding 7 days

Extra duties for a period not exceeding 7 days

Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days

Reprimand



 

Part 2 Consequential amendments

Defence Force Discipline Act 1982

7  Subsection 3(1) (definition of elective punishment )

Omit “column 2 of Table A or B”, substitute “column 3 of Table B or C”.

8  Subsection 76(1)

Omit “section 131”, substitute “subsection (3)”.

9  At the end of section 76

Add:

             (3)  The only action that a service tribunal may take under this Part, in relation to a person for a service offence in relation to which an undertaking was given under subsection 75(2), is action that could have been taken under this Part in relation to the person by the service tribunal that convicted the person of the service offence.

10  Subsection 103(1)

Omit “or 131(4)”.

11  Subsection 103(4)

Omit “Where under section 131”, substitute “If under subsection 111C(1) or 131AA(1)”.

12  At the end of paragraph 103(4)(c)

Add “or”.

13  Subsection 103(5)

Repeal the subsection.

14  Subsections 118(3) and (4)

Repeal the subsections.