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Defence Legislation Amendment Bill 2008

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2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

DEFENCE LEGISLATION AMENDMENT BILL 2008

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments moved on behalf of the Government

 

 

 

(Circulated by authority of the Minister for Defence Science and Personnel, the Hon Warren Snowdon MP)



 

OUTLINE

 

The proposed amendments will correct an anomaly in respect of the constitution of the Australian Military Court for the trial of certain classes of offences. They will provide for the Australian Military Court to be constituted, where there is a combination of different classes of offences appearing on a charge sheet, according to the more serious class of offence. The amendments will also provide for the situation where there is more than one of the same class of offence on a charge sheet.

 

The amendments will address how co-accuseds’ election options are treated where they (the co-accused) appear on the same charge sheet.

 

The amendments will re-design certain provisions in the Bill concerning elections for trial by the Australian Military Court to accommodate the new provisions relating to multiple charges or accused.

 

The amendments will amend a provision relating to the powers of the Director of Military Prosecutions in respect of his or her decision to require a trial by Military Judge alone for a class 3 offence.  The amendments will ensure that the Director of Military Prosecutions may exercise some, all or any of his or her powers under section 103A to reflect the proposed election regime.

 

The amendments will also make it clear that the summary authority which deals with a charge following an accused person’s decision under these provisions will not be obliged to try the charge.  The existing provisions in the Act will apply to the relevant summary authority in respect of what must be done with the charge.

 

 

FINANCIAL IMPACT STATEMENT

 

There are no funding implications as a result of the proposed amendments.

 



BACKGROUND

 

Trials by the Australian Military Court for class 1, 2 and 3 offences

 

Section 132A of the Defence Force Discipline Act 1982 (theAct), as amended by the Defence Legislation Amendment Act 2006 , provides for the mode of trial by the Australian Military Court (AMC) in respect of Class 1, 2 and 3 offences. A class 1 offence (for example, desertion) must be tried by a Military Judge and military jury. There is no election for a trial by Military Judge alone for a class 1 offence. A class 2 offence (for example, possession of narcotic goods) must be tried by a Military Judge and military jury, unless the accused person elects to be tried by a Military Judge alone. Currently, a class 3 offence (for example, destroying or damaging service property) must be tried by a Military Judge alone unless the accused person elects to be tried by a Military Judge and military jury. The Defence Legislation Amendment Bill 2008 (the Bill) enables the Director of Military Prosecutions (DMP) to decide that a class 3 offence is to be tried by a Military Judge alone. If he or she does make this decision, limited punishments will apply, that is, a maximum punishment of imprisonment for a period of 6 months.

 

Section 122 of the Act provides for the constitution of a military jury. In a trial for a class 1 offence, a 12 member military jury is required. In a trial for a class 2 or class 3 offence, a 6 member military jury is required.

 

The relevant provisions of the Australian Military Court Rules 2007 provide that in certain circumstances, more than one charge may appear on a charge sheet and more than one person can be charged on the same charge sheet. This means that the charges can be dealt with at a single trial.

 

An unintended consequence of the operation of certain provisions in the Act relating to the Australian Military Court (AMC) is that, where a person has been charged on a single charge sheet with offences of different classes (for example, a class 1 offence and a class 2 and/or class 3 offence), or charged with more than one class 2 and/or class 3 offence, the person is able to elect different modes of trial for each of these offences. This has had unintended administrative complications. In turn, this has resulted in trials being delayed and has had resource implications. It also has the potential to frustrate the military discipline process by separating related charges and accused persons originally charged together. 

 

The provisions of the Bill pertaining to elections for trial and how classes of offences are treated (in the context of AMC composition) operate as they are intended, that is, on the basis of one person and one charge. However, the provisions relating to AMC composition in relation to class 1, 2 and 3 offences in the Defence Legislation Amendment Act 2006 did not contemplate more than one charge or more than one person being tried together. Therefore, the proposed amendments are required, to rectify that anomaly outlined above and to make consequential amendments to the Bill, to ensure that all provisions work harmoniously in the overall scheme in the Act.

 

The proposed amendments will correct the anomaly outlined above in respect of the constitution of the AMC for the trial of certain classes of offences. The amendments will provide for the AMC to be constituted, where there is a combination of different classes of offence appearing on a charge sheet, according to the more serious class of offence. Furthermore, the amendments will also provide for the situation where there is more than one of the same class of offence on a charge sheet, for example, all class 3 offences. It is intended that an election in respect of the composition of the AMC must be in respect of all those offences.

 

The proposed amendments will also address how co-accuseds’ election options are treated where they (the co-accused) appear on the same charge sheet. It is intended that co-accused will be able to exercise individual and independent elections for trial by the AMC, rather than a summary authority, under sections 111C and 131AA of the Bill. However, to change the default position of Military Judge and military jury in respect of a trial for class 2 offences, all co-accused must elect to have all charges tried by Military Judge alone. In respect of a class 3 offence, the default position is for a trial by Military Judge alone. However, if any of the co-accused elect to be tried by a Military Judge and military jury, the election will operate in respect of all the charges on the charge sheet and all the co-accused. This will enable all co-accused to benefit from a military jury trial.

 

It is also proposed to amend section 103A of the Bill (which enables the Director of Military Prosecutions (DMP) to decide trial by Military Judge alone for a class 3 offence), to clarify that he or she may exercise some, all or any of his or her powers under that section in respect of each class 3 offence on the charge sheet and each co-accused, to reflect the proposed election regime. For example, the DMP may decide on a Military Judge alone trial in respect of a class 3 offence for one accused, but not in respect of another, depending on the circumstances of each case.

 

Transitional arrangements are also provided for. Specifically, where an accused person has made an election in respect of an offence under the existing law, that election will be preserved. However, where no election has been made and the accused has not been asked to enter a plea, the new provisions will apply. This will ensure that accuseds’ election options exercised prior to the commencement of the proposed amendments remain intact.

 

Summary authority’s power to deal with and try a charge

 

The amendments will also amend provisions in the Bill pertaining to elections for trial by the AMC in certain circumstances. Section 111B deals with an election that is offered to an accused before the commencement of a trial. Section 111C deals with the decisions of an accused person in respect of an offer of an election and what a summary authority must do once the accused has made an election. For example, an accused may decide not to accept an offer of an election or the time within which to make an election may have expired (subsection 111C(5)) or he or she may withdraw his or her election (subsection 111C(7)).  Should any of these occur, the Bill currently provides that a summary authority must deal with and try the charge.

 

The above provisions contemplate a summary authority both dealing with and trying the charge. However, it may not be appropriate or possible for the summary authority to try the charge. In some cases, for example, the summary authority may have jurisdiction to deal with the charge but will not have jurisdiction to try the charge. Likewise, rather than try a charge, it may be more appropriate for a summary authority to refer the charge to another summary authority, refer the charge to the DMP or not proceed with the charge. These powers are contained in existing provisions in the DFDA pertaining to the jurisdiction of summary authorities (in particular sections 109, 110 and 111). Subsections 111C(5) and 111C(7) as presently drafted do not take into account these provisions.

 

It is therefore intended to remove the words ‘and try’ from subsections 111C(5) and 111C(7) to make it clear that the summary authority which deals with a charge following an accused person’s decision under these subsections will not be obliged to try the charge. The existing provisions in the Act will apply to the relevant summary authority in respect of what must be done with the charge.

 

 



NOTES ON AMENDMENTS

 

Paragraph (1) inserts a reference to ‘4A’ to the table in the Bill which outlines the commencement regime for the provisions of the Bill. This amendment will ensure that new Part 4A (inserted by these amendments and discussed below) to Schedule 7 of the Bill will commence on Royal Assent.

 

Paragraph (2) omits and substitutes subsections 111B(1) and (2) of the Bill to accommodate the policy discussed in the background, that is, to deal with multiple and linked charges or co-accused persons, to enable those charges to be dealt with by the AMC where an accused person has made an election for an AMC trial. There is no change to the existing policy of offering an election for trial by the AMC, including in respect of a charge of a prescribed offence, an offence that is being dealt with together with a prescribed offence or a Schedule 1A offence, where an election is not possible (except in respect of a Schedule 1A offence - where an election for trial by the AMC is possible in respect of certain ranks).

 

Paragraph 3 omits and substitutes subsection 111C(5) which deals with the situation where an accused person has made a decision not to elect to have a charge dealt with by the AMC. It will include the situation where a linked charge (to reflect the proposed amendments) has not been referred to the DMP under paragraph 111C(3)(b) of the Bill. In this case, the summary authority must deal with the charge.

 

Paragraph 4 omits the reference to ‘and try’ from subsection 111C(7).  This amendment, together with the amendments to subsection 111C(5) discussed above, will more accurately reflect the powers of a summary authority in dealing with a charge.  The amendments will make it clear that the summary authority which deals with a charge following an accused person’s decision under these subsections will not be obliged to try the charge. Existing provisions in the Act will apply to the relevant summary authority in respect of what must be done in respect of a charge.

 

Paragraph (5) omits and substitutes subsection 131(2) of the Bill to reflect the amendments made to section 111B (specifically, new paragraph 111B(2)(c) to enable a senior officer to elect trial by the AMC in respect of a Schedule 1A offence. There is no change in policy reflected in this proposed amendment.

 

Paragraph (6) omits notes 1 and 2 to section 131 of the Bill (which relates to an election for trial by the AMC, offered during the trial) and substitutes notes 1 to 4. Again, this reflects the policy outlined above, to accommodate the situation where there are 2 or more charges or 2 or more accused. Specifically -

  • Where there is 1 accused but more than 1 charge, the summary authority must give the person the opportunity to elect an AMC trial in respect of each charge, if it considers that an elective punishment would be appropriate in respect of any of the charges. The summary authority must refer the charge or charges to the DMP (unless the DMP agrees otherwise);
  • Where there are more than 1 accused being tried together and more than 1 charge, the summary authority must give each person the opportunity to elect trial by the AMC in respect of each charge in respect of which it considers an elective punishment would be appropriate to be imposed;
  • The charges mentioned above must be tried by a Military Judge alone;
  • The punishments that may be awarded where the charge is dealt with summarily (notwithstanding that an election has been offered) are outlined.

 

Paragraph (7) omits and substitutes subsection 131AA(5) of the Bill. It is in the same terms as the amendment to subsection 111C(5) discussed above in paragraph (1A), but the summary authority must then proceed with the trial of the charge.

 

Paragraph (8) omits item 4 of the Bill and substitutes new items 4 and 4A which inserts proposed subsection 132AB(2A) and (2B), to reflect how a class 3 offence (under new section 132AB discussed below)) is to be dealt with if it was referred to the AMC because of an election under subsection 111C(1) or 131AA(1). It will be tried by Military Judge alone.

 

Paragraph (9) omits and substitutes proposed section 103A of the Bill which outlines what the DMP may do in respect of a class 3 offence. It reflects how to treat multiple charges and accused, however, the section only deals with class 3 offences that are not tried together with a class 1 or class 2 offence. In these circumstances, the DMP may decide that the charge is to be tried by a military judge alone. Specifically -

 

  • If there are 2 or more charges against an accused, the DMP may decide a Military Judge alone trial in respect of all or any of those charges;
  • If there are 2 or more accused charged together, the DMP may decide a Military Judge alone trial in respect of all or any of the charges or all or any of the accused;
  • The punishment options available have not changed; that is, the maximum punishment that may be awarded by a Military Judge is limited to 6 months imprisonment.

 

The DMP must inform the Registrar of the Australian Military Court of his or her decision under this section.

 

Paragraph (10) omits item 3 in Schedule 7 of the Bill (new section 132A(3)). It is no longer required as its content is included in new section 132AB (discussed below).

 

Paragraph (11) makes a consequential amendment by changing the reference to ‘paragraph 132A(3)(a)’ with ‘subsection 132AB(2)’.

 

Paragraph (12) inserts new Part 4A into the Act, headed ‘Trials by the Australian Military Court’. Item 30A will repeal and substitute subsection 122(1) dealing with the composition of a military jury according to the class of offence. For instance, where one or more of the charges are in respect of a class 1 offence, the jury must be 12 members. For any other trial, 6 members are required. This reflects a class 1 offence being of a more serious nature requiring a larger jury membership.

 

Paragraph (12) also adds new item 30B which repeals and substitutes section 132A, relating to the composition of the AMC in respect of trials for class 1, class 2 and class 3 offences. Paragraph (12) also adds new section 132AA and section 132AB. These new sections will outline the composition of the AMC according to the particular class and combination of offence.

 

Section 132A deals with class 1 offences. A trial by Military Judge and military jury is mandatory for a class 1 offence; an accused may not elect a trial by Military Judge alone.

 

Section 132AA deals with class 2 offences. Where one or more of the charges are class 2 offences and there are no class 1 offences, the default position is a trial by Military Judge and military jury. However, where there is only one accused person, he or she may elect to be tried by Military Judge alone for one or all the charges. Where there is more than one accused person being tried together, they must all elect to have the charge or charges tried by a Military Judge alone for this to occur.

 

Section 132AB deals with trials of a class 3 offence. At the outset, the section makes it clear that the DMP may decide that the charge be dealt with by Military Judge alone under section 103A. In this case, the maximum punishment that may be imposed is imprisonment for a maximum period of 6 months.

 

Where the DMP has not exercised his or her powers under section 103A, the default position for a class 3 offence is trial by Military Judge alone. However, an accused person or co-accused being tried together may elect to be tried by a Military Judge and military jury in respect of one or more of the charges. In the case of co-accused, any of the accused may make the election for a jury trial. As mentioned above, this will enable all co-accused to benefit from a military jury trial.

 

Paragraph (13) makes a consequential amendment to item 35 of the Bill which amends subparagraph 149A(a)(iii). This amendment will replace the references to section numbers to reflect the amendments made by paragraph (12).

 

Paragraph (14) inserts item 4A into the Bill to provide for transitional arrangements. As mentioned above, the amendment will make it clear that where an accused person has made an election in respect of an offence under the existing law, that election will be preserved. Conversely, this means that where no election has been made and the accused has not been asked to enter a plea, the new provisions will apply. This will ensure that accuseds’ election options exercised prior to the commencement of the proposed amendments remain intact.