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Defence Legislation Amendment Bill 2007

Schedule 4 Review of summary proceedings

Part 1 Main amendments

Defence Force Discipline Act 1982

1  At the end of section 149

Add:

             ; and (i)  the reopening of proceedings of a summary authority on request by a reviewing authority.

2  After Part VIII

Insert:

Part VIIIA Review of proceedings of summary authorities

Division 1 Interpretation and application

150   Meaning of reviewing authority and competent reviewing authority

Appointment of reviewing authorities

             (1)  The Chief of the Defence Force or a service chief may, by instrument in writing, appoint an officer, or each officer included in a class of officers, to be a reviewing authority for the purpose of:

                     (a)  reviewing proceedings of summary authorities; and

                     (b)  exercising any other powers and functions that are conferred on reviewing authorities by this Act or the regulations.

Competent reviewing authorities

             (2)  A reviewing authority is a competent reviewing authority for the purposes of reviewing the proceedings of a summary authority only if the reviewing authority did not exercise any of the powers or perform any of the functions of a superior authority in relation to the charge that is the subject of the proceedings.

150A   Application of Part

                   This Part applies in relation to proceedings of a summary authority that have resulted in a conviction of a person of a service offence.

Division 2 Automatic review by reviewing authority

151   Review of proceedings of subordinate summary authority

Powers and duties of commanding officer

             (1)  As soon as practicable after a subordinate summary authority convicts a person of a service offence, the subordinate summary authority must give the record of the proceedings to the commanding officer of the subordinate summary authority.

             (2)  The commanding officer must review the proceedings in accordance with this Part and, for that purpose, the commanding officer is taken to be a reviewing authority.

             (3)  The commanding officer may, but is not required to, obtain legal advice on the proceedings from a legal officer.

             (4)  After completing the review of the proceedings, the commanding officer must give to a legal officer:

                     (a)  the record of the proceedings; and

                     (b)  a report setting out:

                              (i)  the results of the review; and

                             (ii)  if the proceedings were reopened by the subordinate summary authority under section 153—the action taken by the subordinate summary authority in dealing with the reopened proceedings; and

                            (iii)  the reasons for any delay in conducting the review.

             (5)  The commanding officer must complete the review of the proceedings and give the documents referred to in paragraphs (4)(a) and (b) to a legal officer:

                     (a)  within 30 days after the commanding officer receives the record referred to in subsection (1); or

                     (b)  if this is not possible due to the exigencies of service—as soon as practicable after the end of that period.

Powers and duties of legal officer

             (6)  As soon as practicable after receiving the record of the proceedings and the report referred to in subsection (4), the legal officer:

                     (a)  must consider the record and report; and

                     (b)  may, if the legal officer considers it appropriate, give the record and report to a competent reviewing authority.

Further review by competent reviewing authority

             (7)  If the legal officer gives the record of the proceedings and the report to a competent reviewing authority under subsection (6), the reviewing authority:

                     (a)  must, as soon as practicable after receiving the record and report, review the proceedings in accordance with this Part; and

                     (b)  after reviewing the proceedings, must give written notice of the results of the review to:

                              (i)  the commanding officer; and

                             (ii)  the person who was convicted of the service offence.

Note:          A reviewing authority may not, under paragraph (7)(a), request the subordinate summary authority to reopen the proceedings: see paragraph 153(1)(a).

Notice of results of review

             (8)  If the commanding officer is given a notice under paragraph (7)(b), the commanding officer must, as soon as practicable after receiving the notice, give written notice of the results of the review to the subordinate summary authority.

             (9)  If the legal officer does not give the record of the proceedings and the report of the results of the review to a competent reviewing authority under subsection (6):

                     (a)  the legal officer must notify the commanding officer of this fact; and

                     (b)  the commanding officer must give written notice of the results of the review to:

                              (i)  the subordinate summary authority; and

                             (ii)  the person who was convicted of the service offence.

152   Review of proceedings of superior summary authority or commanding officer

Powers and duties of reviewing authority

             (1)  As soon as practicable after a summary authority (other than a subordinate summary authority) convicts a person of a service offence, the summary authority must give the record of the proceedings to a competent reviewing authority.

             (2)  The reviewing authority must review the proceedings in accordance with this Part.

             (3)  Before reviewing the proceedings, the reviewing authority must obtain legal advice on the proceedings from a legal officer.

             (4)  The reviewing authority must complete the review:

                     (a)  within 30 days after receiving the record referred to in subsection (1); or

                     (b)  if this is not possible due to the exigencies of service—as soon as practicable after the end of that period.

Notice of results of review

             (5)  After reviewing the proceedings, the reviewing authority must give written notice of the results of the review to:

                     (a)  the summary authority; and

                     (b)  the person who was convicted of the service offence.

Exception

             (6)  This section does not apply to proceedings before a superior summary authority if the superior summary authority has no reviewing authority of a higher rank.

Note:          In the case referred to in subsection (6), the convicted person could lodge an appeal to the Australian Military Court under Part IX.

153   Reviewing authority must request summary authority to reopen proceedings to correct punishment error

             (1)  This section applies to:

                     (a)  a review, under section 151, by a commanding officer (the reviewing authority ) of the proceedings of a subordinate summary authority; or

                     (b)  a review, under section 152, by a competent reviewing authority of the proceedings of a superior summary authority or a commanding officer.

             (2)  If the reviewing authority considers that the action taken by the summary authority under Part IV (whether the imposition of a punishment or the making of an order or both) in relation to the convicted person is beyond the power of the summary authority, the reviewing authority must request the summary authority, in writing, to reopen the proceedings.

             (3)  If the reviewing authority requests the summary authority to reopen the proceedings, the summary authority must reopen the proceedings.

153A   Procedures for dealing with reopened proceedings

             (1)  This section applies if a summary authority reopens proceedings in response to a request by a reviewing authority under section 153.

             (2)  The summary authority must notify the convicted person that the proceedings are to be reopened.

             (3)  The summary authority must, as the case requires:

                     (a)  impose a less severe punishment on the convicted person; or

                     (b)  if the summary authority had made a reparation order (the original reparation order )—make a reparation order for an amount that is less than the amount of the original reparation order.

             (4)  As soon as practicable after the summary authority completes dealing with the proceedings under subsection (3), the summary authority must give the record of the proceedings to the reviewing authority that requested the summary authority to reopen the proceedings.

             (5)  Subject to subsection 161(4), this section does not affect the right of the convicted person to appeal to the Australian Military Court in relation to the proceedings.

Note:          Part IX deals with appeals to the Australian Military Court.

154   Effect on review of appeal to the Australian Military Court

                   If:

                     (a)  a person who is convicted of a service offence by a summary authority lodges an appeal to the Australian Military Court in relation to the proceedings; and

                     (b)  the appeal is lodged before a reviewing authority has completed reviewing the proceedings under this Part;

the reviewing authority must not request the summary authority to reopen the proceedings.

Note:          Part IX deals with appeals to the Australian Military Court.

155   Reviewing authority may recommend that convicted person appeal to the Australian Military Court

             (1)  This section applies to a review of the proceedings of a summary authority if the reviewing authority (including a commanding officer referred to in subsection 151(1)) considers:

                     (a)  that, having regard to the evidence, the conviction is unreasonable or cannot be supported; or

                     (b)  that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred; or

                     (c)  that any action taken by the summary authority under Part IV (whether imposing a punishment or making an order or both) in relation to the convicted person is wrong in law or is excessive or otherwise unreasonable; or

                     (d)  that there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or

                     (e)  that, in all the circumstances of the case, the conviction is unsafe or unsatisfactory.

             (2)  The reviewing authority may give a notice in writing to the convicted person:

                     (a)  recommending that the person consider appealing to the Australian Military Court against the conviction, or any punishment imposed or order made under Part IV, as the case requires; and

                     (b)  setting out the reasons for the recommendation.

Note:          Part IX deals with appeals to the Australian Military Court. If the convicted person is given a notice under this subsection, the convicted person has 14 days, beginning on the day on which the notice is given, to lodge an appeal to the Australian Military Court against the conviction or any punishment imposed or order made under Part IV: see subsection 161(5).

             (3)  If the reviewing authority gives a notice to the convicted person under subsection (2), the reviewing authority must give a copy of the notice to the person’s commanding officer.

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

Division 3 Review of certain punishments and orders that are subject to approval by reviewing authority

156   Application of Division

                   This Division applies to a review of the proceedings of a summary authority if the summary authority:

                     (a)  has imposed a punishment referred to in subsection 172(2); or

                     (b)  has made a restitution order or a reparation order.

157   Reviewing authority must approve or not approve punishment or order

                   The reviewing authority must approve or not approve the punishment or order.

158   Approved punishment or order to take effect as determined

                   If the reviewing authority approves the punishment or order, the reviewing authority must determine when the punishment or order is to take effect.

159   Punishments or orders not approved to be quashed or revoked

             (1)  If the reviewing authority does not approve the punishment or order, the reviewing authority must quash the punishment or revoke the order, as the case may be.

             (2)  If the reviewing authority quashes a punishment or revokes an order under subsection (1) in relation to a convicted person, the reviewing authority may take such action in relation to the convicted person as could have been taken under Part IV by the summary authority that convicted the person.

             (3)  However, the reviewing authority must not do any of the following under subsection (2):

                     (a)  impose a punishment that is more severe than the punishment that was imposed by the summary authority;

                     (b)  if the punishment imposed by the summary authority was a custodial punishment—impose a punishment other than a custodial punishment;

                     (c)  if the punishment imposed by the summary authority was not a custodial punishment—impose a custodial punishment;

                     (d)  if the summary authority made a reparation order—make a reparation order for an amount that exceeds the amount of the reparation order that was made by the summary authority.



 

Part 2 Consequential amendments

Defence Force Discipline Act 1982

3  Subsection 3(1) (definition of competent reviewing authority )

Omit “section 150A”, substitute “subsection 150(2)”.

4  Subsection 3(1) (definition of convicted person )

Omit “, a reviewing authority”.

5  Subsection 3(1) (definition of review )

Repeal the definition, substitute:

review means a review by a commanding officer or a reviewing authority, in accordance with Part VIIIA, of the proceedings of a summary authority.

6  Subsection 3(1) (definition of reviewing authority )

Omit “section 150”, substitute “subsection 150(1)”.

7  Paragraph 74(4A)(a)

Omit “service tribunal”, substitute “summary authority”.

8  Subparagraph 74(4A)(a)(i)

Before “reviewing authority” (first occurring), insert “competent”.

9  Paragraph 74(4B)(a)

Omit “service tribunal”, substitute “summary authority”.

10  Subparagraph 74(4B)(a)(i)

Before “reviewing authority” (first occurring), insert “competent”.

11  Subsection 74(5)

Omit “or a reviewing authority that has revoked a suspension of a punishment on the recommendation of a service tribunal”.

12  After subsection 74(5)

Insert:

          (5A)  A reviewing authority that has revoked the suspension of the whole or a part of a punishment under subsection 80(4), on the recommendation of a summary authority, must not order that prescribed punishments are to be cumulative if the effect of the order would be that the person convicted would be subject to punishment for a total period that exceeds the period of operation of the most severe punishment (being a punishment of the same kind as the first-mentioned punishments) that the summary authority could impose on the person for the service offence, or any one of the service offences, of which the person has been convicted by the summary authority.

13  Subsection 80(2)

Omit “service tribunal shall”, substitute “summary authority must”.

14  Subsection 80(2)

Omit “the tribunal”, substitute “the authority”.

15  Subsection 80(3)

Omit “service tribunal”, substitute “summary authority”.

16  Subsection 80(3)

Omit “the tribunal may recommend to a reviewing authority”, substitute “the summary authority may recommend to a competent reviewing authority”.

17  Subsection 80(4)

Omit “a service tribunal recommends to a reviewing authority”, substitute “a summary authority recommends to a competent reviewing authority”.

18  Subsection 81(2)

Omit “or 162(8)”.

19  Subsection 99(1)

Omit “service tribunal” (wherever occurring), substitute “summary authority”.

20  Paragraph 100(5)(b)

Omit “service tribunal”, substitute “summary authority”.

21  Subsection 103(2)

Repeal the subsection, substitute:

             (2)  If, under the Defence Force Discipline Appeals Act 1955 , the Defence Force Discipline Appeal Tribunal or the Federal Court of Australia orders a new trial of a person, the Director of Military Prosecutions may request the Registrar to refer the charge to the Australian Military Court for trial.