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Defence Legislation Amendment Bill 2007

Schedule 7 Other amendments

Part 1 Powers of the Director of Military Prosecutions

Defence Force Discipline Act 1982

1  Subsection 87(1A)

Repeal the subsection, substitute:

          (1A)  To avoid doubt, the Director of Military Prosecutions:

                     (a)  may exercise any or all of the powers referred to in paragraphs (1)(a), (b) and (c); and

                     (b)  may exercise the power referred to in paragraph (1)(c) in addition to, or instead of, the powers referred to in paragraphs (1)(a) and (b).

2  At the end of Division 1 of Part VII

Add:

103A   Director of Military Prosecutions may decide that trial of class 3 offence is to be by Military Judge alone

             (1)  This section applies in relation to a charge of a class 3 offence that is to be tried by the Australian Military Court.

             (2)  The Director of Military Prosecutions may, if he or she considers it appropriate in the circumstances, decide that the trial is to be by a Military Judge alone.

Note:          The maximum punishment that may be imposed on a person who is convicted of a class 3 offence that is tried by a Military Judge alone, because of a decision by the Director of Military Prosecutions under subsection (2), is imprisonment for a period of 6 months: see clause 2 of Schedule 2.

             (3)  If the Director of Military Prosecutions decides that the trial of a class 3 offence is to be by a Military Judge alone, the Director of Military Prosecutions must inform the Registrar of this decision.

3  Subsection 132A(3)

Repeal the subsection, substitute:

             (3)  A class 3 offence is to be tried as follows:

                     (a)  if the Director of Military Prosecutions decides, under subsection 103A(2), that the offence is to be tried by a Military Judge alone—the offence is to be tried by a Military Judge alone; and

Note:       The maximum punishment that may be imposed on a person who is convicted of a class 3 offence that is tried by a Military Judge alone, because of a decision by the Director of Military Prosecutions under subsection 103A(2), is imprisonment for a period of 6 months: see clause 2 of Schedule 2.

                     (c)  in any other case—the offence is to be tried by a Military Judge alone, unless the accused person elects to be tried by a Military Judge and military jury.

4  After clause 1 of Schedule 2

Insert:

              2.  The Australian Military Court must not impose any of the following punishments on a person convicted of a class 3 offence if the offence was tried by a Military Judge alone in accordance with paragraph 132A(3)(a):

                     (a)  imprisonment for life;

                     (b)  imprisonment for a period exceeding 6 months;

                     (c)  detention for a period exceeding 6 months.

Defence Force Discipline Appeals Act 1955

5  Subsection 15(2)

Repeal the subsection, substitute:

             (2)  If:

                     (a)  a question of law referred to the Tribunal under section 19A is to be heard in a place outside Australia; or

                     (b)  an appeal, or a matter preliminary or incidental to an appeal, is to be heard in a place outside Australia;

the President may, if he or she thinks fit, direct that paragraph (1)(b) does not apply in relation to the reference, appeal or matter.

6  Section 16

Repeal the section, substitute:

16   Member ceasing to sit on a hearing of a matter

             (1)  This section applies if:

                     (a)  the hearing of a matter has been commenced before the Tribunal but, before the matter has been finally determined, a member sitting on the hearing has ceased to be a member or, for any reason, has ceased to sit on the hearing; and

                     (b)  the number of remaining members sitting on the hearing is not less than 3; and

                     (c)  except in the case of a matter in relation to which the President has given a direction under subsection 15(2), the remaining members include the President, the Deputy President or a member who is qualified to be appointed as President.

             (2)  The Tribunal constituted by the remaining members may, if the hearing has not been completed:

                     (a)  complete the hearing; and

                     (b)  if a majority of those members concur in the decision, but not otherwise, determine the matter.

             (3)  If, for any reason, the Tribunal constituted by the remaining members does not complete the hearing or determine the matter:

                     (a)  the Tribunal constituted in accordance with section 15 must, subject to section 17, hear and determine the matter; and

                     (b)  for that purpose, the Tribunal may have regard to the evidence given, the arguments adduced and the reasons for any decision given during the previous hearing.

             (4)  In this section:

matter means:

                     (a)  a question of law referred to the Tribunal under section 19A; or

                     (b)  an appeal; or

                     (c)  a matter preliminary or incidental to an appeal.

7  Part III (heading)

Repeal the heading, substitute:

Part III References and appeals to the Tribunal

8  Before Division 1 of Part III

Insert:

Division 1A References of questions of law

19A   Director of Military Prosecutions may refer question of law to the Tribunal

             (1)  After the completion of a trial by the Australian Military Court under the Defence Force Discipline Act 1982 , the Director of Military Prosecutions may refer a question of law that arose in the trial to the Tribunal for decision.

             (2)  A reference under subsection (1) must be lodged with the Registrar, or with such other person as is prescribed, within 60 days after the completion of the trial by the Australian Military Court.

             (3)  The Tribunal has jurisdiction to hear and determine a question of law referred to it under subsection (1).

9  Paragraph 31(1)(e)

Before “an appeal”, insert “a question of law referred to the Tribunal under section 19A or”.

10  Section 36

Omit “an appeal under this Act”, substitute “a question of law referred to the Tribunal under section 19A, or an appeal,”.

Note:       The heading to section 36 is altered by inserting “ references or ” before “ appeals ”.

11  Section 36

After “heard the case”, insert “to which the reference or appeal relates”.

12  Section 36

Before “the appeal”, insert “the question of law or”.

13  At the end of paragraphs 60(a) to (g)

Add “and”.

14  After paragraph 60(g)

Insert:

                    (ga)  for making provision for or in relation to the furnishing to the Tribunal, for the purposes of a question of law referred to the Tribunal under section 19A, of:

                              (i)  a record of the proceedings of the Australian Military Court to which the reference relates; and

                             (ii)  documents that were before the Australian Military Court in connection with those proceedings; and



 

Part 2 Powers of the Provost Marshal Australian Defence Force

Defence Force Discipline Act 1982

15  Subsection 3(1)

Insert:

Provost Marshal Australian Defence Force means the person holding the position of Provost Marshal Australian Defence Force, and includes any person acting in that position.

16  After Division 6 of Part VI

Insert:

Division 6A Referral of serious service offences

101ZAA   Provost Marshal may refer serious service offence to Director of Military Prosecutions

                   If a person is charged with a serious service offence, the Provost Marshal Australian Defence Force may, at the completion of the investigation of the offence and if he or she considers it appropriate to do so, refer the charge of the offence to the Director of Military Prosecutions.

17  Subsection 103(1)

Before “subsection 105A(2)”, insert “section 101ZAA,”.



 

Part 3 Jurisdiction of summary authorities

Defence Force Discipline Act 1982

18  Paragraph 106(a)

Omit “the rank of lieutenant-commander, major or squadron-leader;”, substitute “the rank of rear admiral, major-general or air vice-marshal; or”.

19  At the end of section 106

Add:

Note:          A superior summary authority may be disqualified from trying a charge against a person because of subsection 108A(1).

20  At the end of section 107

Add:

Note:          A commanding officer may be disqualified from trying a charge against a person because of subsection 108A(1).

21  At the end of subsections 108(2) and (3)

Add:

Note:          A subordinate summary authority may be disqualified from trying a charge against a person because of subsection 108A(1).

22  After section 108

Insert:

108A   Disqualification of summary authority from trying a charge

             (1)  A summary authority must not try a charge of a service offence against a person if the summary authority was involved in:

                     (a)  the investigation of the offence; or

                     (b)  the issuing of a warrant for the arrest of the person; or

                     (c)  charging the person with the offence.

             (2)  If a summary authority is not permitted to try a charge of a service offence against a person because of subsection (1), the summary authority must refer the charge to another summary authority, being a summary authority who:

                     (a)  has jurisdiction to try the charge; and

                     (b)  is not prevented from trying the charge because of subsection (1).

23  At the end of paragraph 141(1)(b)

Add:

                          ; (vi)  in the case of a trial by a summary authority—that the summary authority is not permitted to try the charge because of subsection 108A(1).



 

Part 4 Trials by summary authorities

Defence Force Discipline Act 1982

24  Subsection 103(1)

Before “130(5)”, insert “129(2),”.

25  Before section 130

Insert:

129   Time within which trial must be commenced

             (1)  The trial of a charge of a service offence that is to be tried by a summary authority:

                     (a)  must be commenced:

                              (i)  as soon as practicable within the period of 3 months after the accused person is charged with the service offence; or

                             (ii)  if the exigencies of service or other circumstances do not permit the trial to be commenced within this period—within a longer period as allowed by a superior authority; and

                     (b)  must be completed as soon as practicable.

             (2)  If a summary authority that is to try a charge does not commence the trial within the period allowed under paragraph (1)(a), the summary authority must refer the charge to the Director of Military Prosecutions.

26  Paragraph 130(1)(a)

Repeal the paragraph, substitute:

                     (a)  if the accused person is present at the hearing:

                              (i)  the authority, before hearing any evidence on the charge, must ask the accused person whether he or she pleads guilty or not guilty to the charge; and

                             (ii)  if the accused person pleads guilty and the authority is satisfied that the accused person understands the effect of that plea—the authority must, subject to subsection 131(3), convict the accused person;

                    (aa)  if:

                              (i)  the accused person has pleaded guilty to the charge in writing; and

                             (ii)  the authority has made an order under subsection 139(4) (permitting the accused person not to be present at the hearing);

                            the authority must convict the accused person;

27  Section 130A

Repeal the section.

28  At the end of Division 1 of Part VIII

Add:

131B   Conviction by summary authority to have effect for service purposes only

             (1)  If a person has been convicted by a summary authority of a service offence:

                     (a)  the conviction has effect for service purposes only; and

                     (b)  the person is not required to disclose to any person, for any purpose (other than a service purpose), the fact that the person was convicted of the offence.

             (2)  This section applies to a conviction by a summary authority whether the conviction occurs before or after the commencement of this section.

29  Subsection 139(1)

Omit “subsection (2)”, substitute “subsections (2) and (5)”.

Note:       The following heading to subsection 139(1) is inserted “ General rule ”.

30  At the end of section 139

Add:

Exception—trial by summary authority

             (3)  If:

                     (a)  a charge is to be tried by a summary authority; and

                     (b)  because of exceptional circumstances, the accused person is unable to attend the hearing of the charge; and

                     (c)  the accused person pleads guilty to the charge in writing before the hearing;

the accused person may apply in writing to the summary authority for an order permitting the accused person not to be present at the hearing.

             (4)  The summary authority may make an order permitting the accused person not to be present at the hearing if the authority:

                     (a)  is satisfied that the accused person understands the effect of the plea; and

                     (b)  considers that exceptional circumstances exist.

             (5)  If the summary authority makes an order under subsection (4), the summary authority must proceed with the trial of the charge by considering, without holding a hearing, the documents or other material provided to the summary authority in relation to the charge.



 

Part 5 Amendments relating to the Registrar of the Australian Military Court

Defence Force Discipline Act 1982

31  Subsection 3(1) (paragraph (a) of the definition of appropriate authority )

Repeal the paragraph, substitute:

                     (a)  in relation to proceedings before the Australian Military Court, means:

                              (i)  the Chief Military Judge or a Military Judge; or

                             (ii)  the Registrar; or

32  At the end of subsection 141(8)

Add “or the Registrar”.

33  Subsection 175(1)

Omit “An”, substitute “The Registrar, an”.

34  Subsection 175(2)

After “signed by”, insert “the Registrar,”.



 

Part 6 Miscellaneous amendments relating to the Australian Military Court

Defence Force Discipline Act 1982

35  Subparagraph 149A(a)(iii)

Omit “in relation to trial by military jury”, substitute “by an accused person under subsection 132A(2) or paragraph 132A(3)(c)”.

36  After subsection 171(1A)

Insert:

          (1B)  If the Australian Military Court imposes the punishment of dismissal from the Defence Force on a member of the Defence Force who has been convicted of a service offence, the Court may order that the dismissal is to take effect on a day specified in the order, being a day no later than 30 days after the day on which the punishment is imposed.

          (1C)  A person on whom a punishment of dismissal from the Defence Force is imposed may be kept in custody until the dismissal takes effect.



 

Part 7 Rights and duties of legal officers

Defence Act 1903

37  After section 122A

Insert:

122B   Exercise of rights and discharge of duties and obligations by legal officers

             (1)  A legal officer acting in that capacity is entitled to exercise his or her professional rights, and discharge his or her professional duties and obligations, in accordance with the generally accepted rights, duties and obligations applying to legal practitioners.

             (2)  In this section:

legal officer has the same meaning as in the Defence Force Discipline Act 1982 .

legal practitioner has the same meaning as in the Defence Force Discipline Act 1982 .



 

Part 8 Technical amendments

Defence Force Discipline Act 1982

38  Subparagraph 87(1)(c)(ii)

Omit “trial;”, substitute “trial.”.

39  Item 23 of Schedule 6 (column 2)

Omit “(a) Offence against subsection 40B(1)”.

40  Item 23 of Schedule 6 (column 2)

Omit “(b)”.

41  Item 24 of Schedule 6 (column 2)

Omit “(a) Offence against subsection 40B(2)”.

42  Item 24 of Schedule 6 (column 2)

Omit “(b)”.

43  Items 25 and 26 of Schedule 6

Repeal the items.

Defence Force Discipline Appeals Act 1955

44  Subsection 26(2)

Omit “the the”, substitute “the”.