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Military Court of Australia Bill 2010

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2008-2009-2010

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

MILITARY COURT OF AUSTRALIA BILL 2010

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Hon Robert McClelland MP)



 

 

MILITARY COURT OF AUSTRALIA BILL 2010

GENERAL OUTLINE

The Bill establishes the Military Court of Australia under Chapter III of the Constitution.  It is intended to be followed by consequential amendments to the Defence Force Discipline Act 1982 and other legislation.

The Military Court established by this Bill represents a permanent solution for the handling of service offences by a Chapter III court, taking into account the importance of discipline in the operational effectiveness of the Australian Defence Force.  It replaces the interim measures in the Military Justice (Interim Measures) Act (No. 1) 2009 , which re-established the pre-2007 system of courts martial and Defence Force Magistrates.  Those temporary arrangements were put in place after the provisions of the Defence Force Discipline Act 1982 establishing the Australian Military Court, which commenced in October 2007, were invalidated by the High Court’s decision in Lane v Morrison [2009] HCA 29 on 26 August 2009. 

The Military Court will be a superior court of record comprising judicial officers who are familiar with the nature of service in the Australian Defence Force.  The Bill allows judicial officers in the Military Court to hold dual commissions in other federal courts on the same terms and conditions and, consistent with the Constitution, provides tenure for judicial officers to the age of 70.  The Bill requires appointments to the Military Court to be made in consultation with the Minister for Defence.    

Like other federal courts, the Chief Justice of the Military Court will have direct responsibility for the administration of the Court.  The Bill also establishes the office of the Registrar of the Military Court, who will assist the Chief Justice in the management of the administrative affairs of the Military Court.

It is expected that the Military Court will use the existing infrastructure of the Federal Court of Australia for administration.  The Bill provides mechanisms for the Chief Justice to make arrangements with other courts, agencies and organisations to provide office facilities and administrative services.    

The Bill also allows the Chief Justice to make arrangements with the Chief of the Defence Force for members of the Australian Defence Force to provide administrative assistance to the Military Court .  The presence of these Australian Defence Force members will emphasise the military justice focus of the Military Court.

The Bill will allow the Military Court to deploy where it is necessary for a trial to be conducted overseas, provided the deployment and any conditions required by Australia are acceptable to the host nation.  In considering whether it should sit overseas, the Bill will require the Military Court to consider (among other things) whether doing so is in the interests of justice.  If it is not necessary or appropriate for the Military Court to sit overseas, a court martial or Defence Force magistrate will provide a backup system of military justice.



The Bill confers original jurisdiction on the Military Court to try service offences under the Defence Force Discipline Act 1982 .  The Military Court will also have jurisdiction to try service offences which would otherwise be heard by a summary authority, on the up-front election of the accused person or on referral by the summary authority, and to hear appeals from a court martial or Defence Force magistrate sitting overseas where the Military Court was not able to deploy.

The Bill provides that all matters in the Military Court will be tried otherwise than on indictment and therefore without a jury.  The Government can legislatively provide that service offences are not to be tried on indictment.  Where there is a need to try service offences overseas, the requirement to empanel a civilian jury would establish almost insurmountable practical barriers to the prosecution of offences. 

The original jurisdiction of the Military Court will be exercised by a single Federal Magistrate in the General Division, except where (a) the proceeding relates to (i) a serious service offence prescribed in Schedule 3 to the Bill, or (ii) an appeal from a court martial or Defence Force magistrate or (b) the Chief Justice directs otherwise.  In these circumstances, the Military Court’s original jurisdiction will be exercised in the Appellate and Superior Division.  A single Judge in the Appellate and Superior Division will hear serious service offences prescribed in Schedule 3 and proceedings which the Chief Justice has directed be heard in the Division.  Appeals from a court martial or Defence Force magistrate will be heard by a Full Court in the Appellate and Superior Division.

Serious service offences prescribed in Schedule 3 generally include:

(i)        offences essential to maintaining discipline and morale in the Australian Defence Force, such as offences relating to operations against the enemy, mutiny and desertion

(ii)      offences so serious in nature that they require the Commonwealth Director of Public Prosecution’s consent for prosecution in the military justice system, for example, murder and sexual assault, and

(iii)    offences with very serious maximum punishments.

The Bill sets out procedures for instituting proceedings in the original jurisdiction of the Military Court as well as procedures for the conduct of such proceedings during the pre-trial and trial stages.  These are modelled on proceedings before a court martial or Defence Force Magistrate under the Defence Force Discipline Act 1982 and procedures developed for the cartel jurisdiction of the Federal Court.  It includes a system of pre-trial hearings and disclosure obligations on the parties, to reduce the length of trials by ensuring that any issues that are not in dispute are identified at an early stage.  This will narrow the range of issues that will have to be dealt with at trial so that the Military Court can concentrate on issues which are genuinely in dispute.

The Bill also confers jurisdiction on the Military Court to hear appeals from judgments of the Military Court at first instance.  The appellate jurisdiction of the Military Court will be exercised by a Full Court or a single Judge in the Appellate and Superior Division.  The Bill sets out procedures for making appeals in the Military Court and for the conduct of proceedings in an appeal, as well as the Military Court’s powers on appeal.  The Bill also allows for appeals to the High Court in restricted circumstances.  The appeal mechanisms in the Bill will benefit members of the Australian Defence Force through enhanced consistency and certainty in decision-making under authoritative precedents on defence force disciplinary matters.

The basic structure of the Military Court, and the kinds of matters to be heard in each of its Divisions, is represented in Diagram 1 below.

The Bill will give the Military Court powers to make orders for the custody and bail of accused persons before the Military Court.  These are similar to the powers available to the Federal Court in the exercise of its cartel jurisdiction.  They include the power to order bail subject to specific conditions such as the provision of security in the form of money or property, the power to vary or revoke bail orders where, for example, there is sufficient change in circumstances, and the power to make orders for the forfeiture of securities when an accused person fails to comply with a bail undertaking.

The Bill also sets out the general practices and procedures of the Military Court.  Many of these provisions are consistent with the practices and procedures of the Federal Court.  This includes rules on evidence and the use of video and audio links.  Certain practices and procedures in the Military Court will be consistent with proceedings before a court martial or Defence Force magistrate under the Defence Force Discipline Act 1982 .  This includes, for example, provisions for taking judicial notice of service matters.

The Bill addresses core issues that affect the rights and responsibilities of persons appearing before the Military Court.  The provisions in the Bill will be supplemented by Military Court Rules covering matters of detail.

FINANCIAL IMPACT

Establishing the Military Court will have no net impact on underlying cash.  It will require a transfer of funding from the Defence portfolio to Attorney-General’s portfolio, with additional funding in the start up year to cover the costs of implementation.

Diagram 1



NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1 - Short title

1.                    This clause provides for the Bill to be cited as the Military Court of Australia Act 2010 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table.  Item 1 in the table provides that sections 1 and 2 of the Bill (and anything in the Bill not elsewhere covered by the table) will commence on the day on which the Bill receives the Royal Assent. 

3.                    Item 2 in the table provides that sections 3 to 180 commence on a single day to be fixed by Proclamation.  However, if any of those provisions do not commence within the period of 6 months beginning on the day this Bill receives the Royal Assent, they will commence on the day after the end of that period.  The same commencement date also applies to Schedules 1 to 3 to the Bill (item 3).  This will allow time for amendments to be made to Schedule 1 to the Financial Management and Accountability Regulations 1997 to include the Military Court as a prescribed agency for the purposes of the Financial Management and Accountability Act 1997 .

4.                    Subclause (3) provides that proceedings are not to be instituted in the Military Court before the earlier of the followings days:

(a)       a day fixed by Proclamation as the day on which the Military Court is to commence to exercise its jurisdiction;

(b)      the last day of the period of 10 months beginning on the day on which this Bill receives the Royal Assent.

5.                   A period of 10 months is provided to allow sufficient time for the appointment of judicial officers to the Military Court and for the implementation of administrative arrangements for proceedings in the Military Court, including the establishment of Military Court Rules.

Clause 3 - Definitions

6.                    This clause defines various terms used in the Bill.  To facilitate the exercise of jurisdiction under the Defence Force Discipline Act 1982 , clause 3 defines a number of terms in the same way as they are defined under that Act.

Clause 4 - Crown to be bound

7.                    This clause provides that the Crown is bound by the Bill in each of its capacities.  However, the Crown is not liable to be prosecuted for an offence under the Bill.

Clause 5 - Operation of this Act

8.                     This clause provides that the Bill applies both within and outside Australia, and extends to every external Territory.  The application of the Bill outside Australia will operate in circumstances where the Military Court determines that it is appropriate for it to sit at a place outside Australia, in accordance with clause 49.

Clause 6 - Geographical jurisdiction for offences

9.                    This clause provides that section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against the Bill.  This means that, where the conduct constituting an alleged offence against this Bill occurs wholly outside Australia, a person does not commit the offence unless the person is an Australian citizen at the time of the alleged offence.

10.                This may be relevant where the Military Court determines that it is appropriate for it to sit at a place outside Australia, in accordance with clause 49.  Relevant offences against this Bill occurring outside Australia may include offences by witnesses failing to appear before the Military Court as required by a subpoena (clause 167).  However, this offence will not apply to persons who are not Australian citizens at the time of the alleged offence.    Exempting foreign nationals from offences under the Bill will assist with the making of arrangements between Australia and the host nation for the Military Court to sit overseas.

Part 2 - Military Court of Australia

11.                Part 2 of the Bill creates the Military Court of Australia and provides for the constitution of the Military Court.  This includes provisions for the appointment of Judges and Federal Magistrates to the Military Court and their assignment to the Divisions of the Military Court.  This Part is generally consistent with Part II of the Federal Court of Australia Act 1976 and Schedule 1 to the Federal Magistrates Act 1999 .

Division 1 - Introduction

Clause 7 - Guide to this Part

12.                This clause sets out a guide to Part 2 of the Bill.

Division 2 - Creation of Military Court etc.

Clause 8 - Creation of Military Court etc.

13.                This clause creates the Military Court of Australia as a superior court of record.  It consists of a Chief Justice, other Judges and Federal Magistrates.

Clause 9 - Divisions of Military Court

14.                This clause provides that the Military Court has 2 Divisions: the Appellate and Superior Division, and the General Division. 

15.                Judges, including the Chief Justice, of the Military Court will be assigned to the Appellate and Superior Division while Federal Magistrates of the Military Court will be assigned to the General Division (clause 12).  Judges and Federal Magistrates may exercise the powers of the Military Court only in their respective Divisions (clause 52).  Clause 63 specifies that certain matters are to be dealt with in the General Division and the Appellate and Superior Division respectively, in the exercise of the Military Court’s original jurisdiction.  The Military Court’s appellate jurisdiction will be exercised in the Appellate and Superior Division (clause 99).

Division 3 - Judges and Federal Magistrates

Clause 10 - Appointment

16.                Subclauses (1) and (2) provide for the appointment of Judges and Federal Magistrates to the Military Court by the Governor-General by commission.  A Federal Magistrate may be appointed on a part-time basis (subclause (8)).  This is consistent with clause 1 of Schedule 1 to the Federal Magistrates Act 1999 , which allows for the appointment of Federal Magistrates on a part-time basis and is intended to allow flexibility in managing the workload of Federal Magistrates.

17.                Paragraph (3)(a) sets out criteria for judicial appointments to the Military Court consistent with appointments to other federal courts.  To be eligible for appointment as a Judge or Federal Magistrate of the Military Court, a person must be or have been a judge of another federal court or a judge of a State or Territory court, or be enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years.

18.                Paragraph (3)(b) establishes criteria specific to judicial appointment to the Military Court, consistent with other specialist courts, such as the Family Court of Australia.  This paragraph provides that the Governor-General must not appoint a person as a Judge or Federal Magistrate of the Military Court unless the Governor-General is satisfied that the person has experience or knowledge of the nature of service in the Australian Defence Force, and the Defence Minister has been consulted in relation to the appointment. 

19.                This will ensure that judicial officers appointed to the Military Court are familiar with the important role that discipline has in supporting the operational effectiveness of the Australian Defence Force.  The requirement for judicial officers to have experience or knowledge of the nature of service in the Defence Force should be interpreted broadly.  Prior service in the Australian Defence Force or the Reserves is perhaps the best and most direct means of acquiring that experience or knowledge, and it is expected that such service could be given significant weight in determining whether a potential appointee satisfies the requirement of paragraph 10(3)(b).   It would also include persons who have been advocates in respect of military matters.  The requirement to consult the Defence Minister on judicial appointments will help to make sure that judicial officers appointed to the Military Court have qualifications and experience suitable to the Military Court’s focus on defence force discipline.

20.                Subclause (4) provides that persons currently serving in the Australian Defence Force would not be eligible for appointment as a Judge or Federal Magistrate of the Military Court.  Once appointed, they will no longer be eligible for recruitment into the Australian Defence Force, which will be provided by amendment to the Defence Force Act 1903 .  This ensures the independence and impartiality of the Military Court.

21.                In accordance with section 72 of the Constitution, and consistent with all four other federal courts,  subclauses (5) and (6) provide that a person is not eligible for appointment to the Military Court if he or she has attained the age of 70 but those judicial officers appointed to the Military Court will have tenure to the age of 70.  This provides the necessary independence and constitutional protections for an impartial judiciary in the Military Court.

Clause 11 - Judges and Federal Magistrates may hold office of another court

22.                This clause provides that Judges or Federal Magistrates of the Military Court may hold dual commissions as judges in other federal courts or as Federal Magistrates in the Federal Magistrates Court, respectively.

Clause 12 - Assignment to Divisions

23.                This clause assigns the judicial officers of the Military Court to particular Divisions mentioned in clause 9.  It provides that Judges of the Military Court (including the Chief Justice) are assigned to the Appellate and Superior Division, and Federal Magistrates of the Military Court are assigned to the General Division.  This reflects the intention for certain matters to be heard in each Division, as set out in Parts 5 and 6.

Clause 13 - Assignment to particular locations

24.                Subclause (1) provides that Judges and Federal Magistrates of the Military Court will be assigned to sit at a particular location in their commission of assignment.  Subclause (2) provides that, while a Judge or Federal Magistrate may sit at another location on a temporary basis, he or she must not sit or cannot be required to sit at another location on a permanent basis unless the Judge or Federal Magistrate, the Chief Justice and the Attorney-General consent.

25.                Subclause (3) provides that the Chief Justice has the same protection and immunity when deciding whether to give this consent as if he or she were making that decision as a member of the Military Court.  This means that judicial immunity applies to the Chief Justice in making this decision. 

26.                Subclause (4) provides that the Federal Court does not have jurisdiction with respect to a matter relating to the consent of the Attorney-General or the Chief Justice.

Clause 14 - Resignation

27.                Consistent with section 72 of the Constitution, this clause provides that a Judge or Federal Magistrate may tender his or her resignation from the Military Court in writing to the Governor-General.  Subclause (2) provides that the resignation takes effect on the day on which it is received by the Governor-General or a later day if specified in the resignation.

Clause 15 - Removal from office

28.                This clause also reflects section 72 of the Constitution, which provides that a Judge or Federal Magistrate of the Military Court may be removed from office only by the

Governor-General, on an address from both Houses of the Parliament in the same session, on the ground of proved misbehaviour or incapacity. 

Clause 16 - Style

29.                This clause provides that a Judge or former Judge of the Military Court is entitled to be styled ‘The Honourable’, and a Federal Magistrate of the Military Court is to be styled ‘Federal Magistrate ( name )’ or ‘( name ) FM’.  This is consistent with section 6 of the Federal Court of Australia Act 1976 and clause 2 of Schedule 1 to the Federal Magistrates Act 1999 .

Clause 17 - Seniority

30.                This clause provides that the Chief Justice of the Military Court is senior to all other Judges and to the Federal Magistrates of the Military Court, while the other Judges have seniority according to        the dates on which their commissions took effect or the precedence assigned to them by their commissions.  This is consistent with section 8 of the Federal Court of Australia Act 1976 .

Clause 18 - Acting Chief Justice

31.                This clause provides that, whenever the Chief Justice of the Military Court is absent from duty or there is a vacancy in the office of Chief Justice, the next senior Judge who is in Australia and available and willing to do so, is to perform the duties and may exercise the powers of the Chief Justice.  In doing so, that Judge is to be called the Acting Chief Justice of the Court.

32.                This is generally consistent with section 7 of the Federal Court of Australia Act 1976 .  However, unlike that provision, clause 18 does not provide for an Acting Chief Justice whenever the Chief Justice is absent from Australia.  This is because the Chief Justice of the Military Court may be sitting in a place outside Australia in accordance with clause 49.

Clause 19 - Remuneration etc.

33.                Subclause (1) provides that Judges and Federal Magistrates of the Military Court are to be paid such remuneration (within the meaning of Part II of the Remuneration Tribunal Act 1973 ) as is determined by the Remuneration Tribunal.  This is subject to the Remuneration Tribunal Act 1973 (subclause (2))-. 

34.               Subclause (3) reflects subsection 9(2) of the Federal Court of Australia Act 1976 .  It ensures that the salary and annual allowances of Judges of the Appellate and Superior Division accrue daily and are payable monthly.

35.                Subclause (4) clarifies that a Federal Magistrate is the holder of an office of Justice of a federal court, for the purposes of paragraph 7(5B)(a) of the Remuneration Tribunal Act 1973

36.                These provisions are consistent with clause 5 of Schedule 1 to the Federal Magistrates Act 1999 .  While different provisions are established under section 9 of the Federal Court of Australia Act 1976 , the enactment of that section pre-dates the creation of the Remuneration Tribunal. In practice, these provisions are implemented so that remuneration for Judges of the Federal Court is determined under the Remuneration Tribunal Act 1973 .  Clause 19 operates so that remuneration for Judges and Federal Magistrates of the Military Court will be the same as Judges of the Federal Court and Federal Magistrates of the Federal Magistrates Court, respectively.

37.                Subclause (5) provides that Federal Magistrates are to be treated as Justices of a court of record for the purpose of determining their remuneration and other terms and conditions.  This is consistent with the position of Federal Magistrates in the Federal Magistrates Court, which is a court of record.

38.                Subclause (6) provides that, in accordance with section 72 of the Constitution, the remuneration of a Judge or Federal Magistrate of the Military Court is not to be diminished during his or her continuance in office.

Clause 20 - Additional terms and conditions of Federal Magistrates

39.                This clause refers to Schedule 1, which sets out other terms and conditions that apply to Federal Magistrates of the Military Court.  These reflect the terms and conditions that apply to Federal Magistrates of the Federal Magistrates Court under Part 2 of Schedule 1 to the Federal Magistrates Act 1999 .

Clause 21 - Certain references in other laws to Judge of a superior court etc. not to include Federal Magistrate

40.                Subclause (1) confirms that the expressions ‘Judge of a superior court’ and ‘Judges of a superior court’, in any other law of the Commonwealth, do not include a Federal Magistrate of the Military Court (which is a superior court of record).  Section 48C of the Australian Capital Territory (Self-Government) Act 1988 is an example of where this expression occurs.

41.                Similarly subclause (2) confirms that references, in any other law of the Commonwealth, to a period during which a person served as a Judge in a superior court do not include references to a period during which the person served as a Federal Magistrate of the Military Court.  Section 34B of the Australian Security Intelligence Organisation Act 1979 and section 105.2 of the Criminal Code Act 1995 are examples of where this expression occurs.

42.                This provision will clarify, for the avoidance of doubt, the application of such other laws of the Commonwealth to persons who are serving or have served as a Federal Magistrate of the Military Court.  The Military Court is a superior court of record.  However, where a Federal Magistrate of the General Division consents to exercise non-judicial functions and powers in their personal capacity under other Commonwealth laws, they are not to be taken to be a Judge of a superior court for that purpose. 

Clause 22 - Oath or affirmation of allegiance and office

43.                This clause provides that a Judge or a Federal Magistrate of the Military Court must take an oath or affirmation of allegiance before proceeding to discharge the duties of his or her office, and sets out the form of that oath or affirmation.  This is consistent with section 11 of the Federal Court of Australia Act 1976.

Part 3 - Management of the Military Court

44.                Part 3 of the Bill provides for the management of the Military Court.  Direct responsibility for the management of the Court, including management of its financial affairs, is vested in the Chief Justice.  Part 3 also provides for the Registrar to assist the Chief Justice in the management of its administrative affairs.

45.                The Military Court is expected to make use of the existing infrastructure in Federal Court.  Part 3 provides a mechanism for the Military Court to make these arrangements and to make arrangements with other agencies, organisations and the Chief of the Defence Force. 

46.                The provisions of Part 3 are generally consistent with Part IIA of the Federal Court of Australia Act 1976 and Part 7 of the Federal Magistrates Act 1999 .

Division 1 - Introduction

Clause 23 - Guide to this Part

47.                This clause sets out a guide to Part 3 of the Bill.

Division 2 - Management responsibilities of the Chief Justice etc.

Clause 24 - Management of the administrative affairs of the Military Court

48.                This clause gives the Chief Justice responsibility for the management of the administrative affairs of the Military Court.  This is in addition to the Chief Justice’s responsibilities for managing the business of the Military Court (clause 51).  Subclause (2) gives the Chief Justice broad powers necessary for administering the Military Court, including the powers to enter into contracts and acquire and dispose of personal property.  These powers are expressly limited so that the Military Court may not enter into contracts which involve more than $250,000 without the Attorney-General’s approval.  A higher amount may be prescribed by regulation.  These provisions are consistent with section 18A of the Federal Court of Australia Act 1976 .

Clause 25 - Arrangements with other courts

49.                This clause allows the Chief Justice to make arrangements with other courts for the performance of certain procedural functions on behalf of the Military Court and such other non-judicial functions as the Military Court considers appropriate.  It is expected that these functions would be performed by the Federal Court under an arrangement with the Military Court.  If a function is performed in accordance with an arrangement under this clause, the function will be deemed to have effect as if it had been performed by the Military Court.  These provisions are consistent with section 90 of the Federal Magistrates Act 1999 .

Clause 26 - Arrangements with agencies and organisations

50.                In some locations it may not be possible for arrangements to be made with an existing court, for example because there are no appropriate court facilities or services provided in that location.  In these circumstances it is expected that the Chief Justice will make arrangements with another agency or organisation for the provision of services on behalf of the Military Court.  If a function is performed in accordance with an arrangement under this clause, the function will be deemed to have effect as if it had been performed by the Military Court.  These provisions are consistent with section 18BA of the Federal Court of Australia Act 1976 and section 91 of the Federal Magistrates Act 1999 .

Clause 27 - Arrangements with the Chief of the Defence Force

51.                Subclause (1) allows the Chief Justice to make arrangements with the Chief of the Defence Force for members of the Australian Defence Force to provide administrative assistance in relation to proceedings in the Military Court or to act as a means of liaison between the Department of Defence and the Military Court in relation to administrative arrangements of the Military Court.  To ensure the independence of the Military Court, the Australian Defence Force members will not carry out any judicial functions.

52.                Subclause (2) provides that members of the Australian Defence Force providing administrative or liaison assistance to the Military Court in accordance with an arrangement made under subclause (1) are subject to the direction and control of the Chief Justice and the Registrar and are not subject to the direction or control of any other person or body.  This is important to ensure the independence of the court, consistent with Chapter III of the Constitution.

53.                Subclause (3) makes clear that an Australian Defence Force member is not subject to military command or to the Defence Force Discipline Act 1982 in relation to the provision of administrative or liaison assistance to the Military Court in accordance with an arrangement under subclause (1).  However, in relation to any other matter, the Australian Defence Force member remains subject to military command and the Defence Force Discipline Act 1982 .

54.                Subclause (4) provides that members of the Australian Defence Force are bound by the Code of Conduct (within the meaning of the Public Service Act 1999 ) in providing administrative or liaison assistance to the Military Court in accordance with an arrangement under subclause (1).

55.                Subclause (5) provides that the Registrar may determine, in accordance with the procedures established under subsection 15(3) of the Public Service Act 1999 , whether a member of the Australian Defence Force has breached the Code of Conduct in providing administrative or liaison assistance to the Military Court in accordance with an arrangement under subclause (1).  Subsection 15(3) of the Public Service Act 1999 provides that such procedures must comply with basic procedural requirements set out in Commissioner’s Directions and must have due regard to procedural fairness.

56.                Subclause (6) provides that, where the Registrar determines that a member of the Australian Defence Force has breached the Code of Conduct in providing administrative or liaison assistance to the Military Court, the member is taken not to have acted in accordance with the arrangement made under subclause (1), to the extent of the breach.  This has the effect of excluding the operation of subclause (2) and (3), which means the member of the Australian Defence Force would be subject to military command and the Defence Force Discipline Act 1982 in relation to his or her conduct constituting that breach.  Such conduct may constitute an offence against section 60 of the Defence Force Discipline Act 1982 , which prohibits acts that are likely to prejudice the discipline of, or bring discredit on, the Australian Defence Force.  The determination by the Registrar of a breach of the Code of Conduct would not, however, compel defence disciplinary action.

57.                Subclause (7) substitutes certain phrases in the Code of Conduct so that they can be read appropriately for the purposes of subclauses (4), (5) and (6).  It provides that: ‘an APS employee’ is to be read as referring to a member of the Australian Defence Force who is providing administrative or liaison assistance to the Military Court in accordance with an arrangement under subsection (1); ‘APS employment’ is to be read as referring to the provision of such administrative or liaison assistance; and ‘an APS employee’s Agency’ is to be read as ‘the Military Court’.

Clause 28 - Arrangements for sharing courtrooms and other facilities

58.                This clause provides for the Chief Justice to make arrangements with another court for the Military Court to sit in rooms of another court or to share registry facilities of another court.  This provision is consistent with section 92 of the Federal Magistrates Act 1999 .

Clause 29 - Delegation of administrative powers of Chief Justice

59.                This clause allows the Chief Justice to delegate all or any of his or her powers under clause 24 to any one or more of the Judges or Federal Magistrates.  This provision is consistent with section 18W of the Federal Court of Australia Act 1976 and section 117A of the Federal Magistrates Act 1999 .

Division 3 - Registries

Clause 30 - Establishment of registries

60.                This clause provides for the Attorney-General to establish such registries of the Military Court as the Attorney-General thinks fit.  It is expected that the Attorney-General will establish such registries as are required according to workload and needs of the Military Court.  This is consistent with section 34 of the Federal Court of Australia Act 1976 and section 98 of the Federal Magistrates Act 1999 .

Division 4 - Registrar of the Military Court

Clause 31 - Appointment etc.

61.                This clause establishes the office of Registrar of the Military Court.  Consistent with section 18C of the Federal Court of Australia Act 1976 , the Registrar is to be appointed by the Governor-General on the nomination of the Chief Justice.  Statutory appointment to the position of Registrar reflects the independence of the Military Court. 

62.                The Registrar will hold office for the period specified in the instrument of appointment but this must not exceed 5 years.  However, subsection 33(4A) of the Acts Interpretation Act 1901 provides that the Registrar would be eligible for reappointment.  Schedule 2 sets out the remuneration and other terms and conditions of the Registrar.

63.                The Registrar of the Military Court cannot be a member of the Australian Defence Force but may be, at the same time, the Registrar of the Federal Court.  This will facilitate the making of arrangements for sharing administrative services provided by the Federal Court.  It will also help to maintain an appropriate level of independence from the Australian Defence Force.

Clause 32 - Functions and powers

64.                This clause gives the Registrar the power to do all things necessary or convenient to be done for the purpose of assisting the Chief Justice.  In particular, this will ensure that the Registrar can assist the Chief Justice in conducting the administrative affairs of the Military Court.  Clause 32 also establishes the independence of the Registrar, in the performance of the Registrar’s function and powers, so that the Registrar is subject to the direction and control of the Chief Justice but not any other person or body in relation to the performance of a function or the exercise of a power under this Bill or the Military Court Rules.  These provisions are consistent with section 18D of the Federal Court of Australia Act 1976 .

Clause 33 - Delegation of powers to Registrars

65.                This clause allows certain procedural powers of the Military Court to be exercised by Registrars, which includes the Registrar and Deputy Registrars, at the direction of the Military Court.  This includes powers to dispense with service of any process, make orders in relation to substituted service, pre-trial disclosures, the adjournment of a hearing or exempting a party from compliance with the Military Court Rules, or any other power of the Military Court prescribed by the Rules.  A Registrar has total independence i n relation to the manner in which he or she exercises these powers, and is not subject to the direction or control of any person or body.  However, an exercise of these powers by a Registrar is subject to review by the Military Court.  If a Registrar considers that it would not be appropriate for him or her to exercise any of these powers, he or she must refer the application for the exercise of the power to the Military Court.  These provisions are based on section 35A of the Federal Court of Australia Act 1976 .

Clause 34 - Acting Registrar

66.                This clause allows the Chief Justice to appoint an Acting Registrar where the Registrar of the Military Court is absent from duty or Australia or otherwise unable to perform the duties of the officer, or the office of Registrar is vacant.  This clause is supported by section 33A of the Acts Interpretation Act 1901, which covers additional matters such as resignation and the duration of acting appointments where the office becomes vacant during the period of acting.  Subclause (2) preserves the validity of anything done by an Acting Registrar, such as the exercise of powers under clause 33, notwithstanding defects or irregularities in the appointment of that person.  These provisions are consistent with section 18M of the Federal Court of Australia Act 1976 .

Division 5 - Other officers and staff of the Military Court

Clause 35 - Officers other than the Registrar

67.                This clause provides for the officers and the Registry staff of the Military Court, apart from the Registrar. This includes Deputy Registrars, the Sheriff and Deputy Sheriffs of the Military Court.   These officers are to be appointed by the Registrar of the Military Court.  All officers of the Military Court other than the Registrar and the Deputy Sheriffs are to be subject to the Public Service Act 1999 .  Deputy Sheriffs may be Commonwealth, State or Territory officers. 

68.                Subclauses (2) and (3) provide that a person may be an officer of both the Military Court and the Federal Court.  This will facilitate the making of arrangements for sharing registry or other services provided by the Federal Court.

69.                Subclause (5) stipulates that the Deputy Registrar cannot be a member of the Australian Defence Force but may be, at the same time, an officer of the Federal Court (subclause (3)).  This will facilitate the making of arrangements for sharing administrative services provided by the Federal Court.  It will also help to ensure an appropriate level of independence from the Australian Defence Force.

70.                There is nothing in the Bill that prevents a Sheriff or Deputy Sheriff from being a member of the Australian Defence Force.  This is because the Sheriff and Deputy Sheriffs would not exercise any judicial functions, only carry out administrative work in the Military Court.  While carrying out those functions, members of the Australian Defence Force would be subject to the direction and control of the court.

71.                These provisions are generally consistent with section 18N of the Federal Court of Australia Act 1976 .

Clause 36 - Functions of officers other than the Registrar

72.                This clause provides that officers of the Military Court have the duties, powers and functions which are given to them by the Bill, the Military Court Rules or the Chief Justice.  In carrying out these duties, powers and functions t he officers of the Military Court may be assisted by members of the Australian Defence Force in accordance with an arrangement made between the Chief Justice and the Chief of the Defence Force under clause 27.

Clause 37 - Deputy Registrars

73.                This clause establishes the independence of Deputy Registrars, in relation to the performance and exercise of his or her functions and powers, from any person or body other than the direction and control of the Chief Justice, other Judges of Federal Magistrates authorised by the Chief Justice and the Registrar.  The Registrar’s control over Deputy Registrars may include making arrangements for Deputy Registrars to perform certain functions in particular matters or classes of matters.

Clause 38 - Functions of the Sheriff and Deputy Sheriffs

74.                This clause sets out the responsibilities of the Sheriff of the Military Court.  These include the service and execution of process of the Military Court, dealing with service police forces in this regard, the detention of persons committed to his or her custody and discharging such persons when so directed by the Military Court.  This clause is modelled on section 18P of the Federal Court of Australia Act 1976 .

Clause 39 - Actions by or against the Sheriff or a Deputy Sheriff

75.                This clause provides for a procedure to be followed where the Sheriff or a Deputy Sheriff is a party to a proceeding in the Military Court.  It provides for all processes that would normally be directed to the Sheriff to be directed to a disinterested person appointed by the Military Court.  This procedure follows section 113 of the Federal Magistrates Act 1999 .

Clause 40 - Staff of the Military Court

76.                This clause provides for there to be such staff of the Military Court as are necessary and for these staff to be engaged under the Public Service Act 1922 .    

Clause 41 - Statutory agency

77.                This clause gives the Registrar the same power over officers and staff of the Military Court as a Secretary of a Department of the Public Service has over that Department.  This provision does not apply to those officers and staff who are also officers or staff of the Federal Court because the Registrar of the Federal Court has the relevant powers for those officers and staff.  It also does not apply to the members of the Australian Defence Force who provide administrative assistance to the Military Court because the Chief of the Defence Force has the relevant powers for those persons.  These provisions are based on section 18Q of the Federal Court of Australia Act 1976 and section 97 of the Federal Magistrates Act 1999 .

Clause 42 - Engagement of consultants etc.

78.                This clause allows the Registrar to engage consultants with suitable qualifications and experience to perform services for the Military Court.  This provides flexibility to the Registrar, for example, to ensure a capability to handle particular work for the Military Court where specialist expertise is required which may not be otherwise available to the Military Court.  These provisions are consistent with section 18R of the Federal Court of Australia Act 1976 .

Division 6 - Miscellaneous administrative matters

Clause 43 - Seal of the Military Court

79.                This clause provides for the seal of the Military Court and for the Attorney-General to determine the design of the seal.  The seal of the Court and a stamp bearing the design of the seal must be affixed to documents as provided for in the Bill or by the Military Court Rules.  These provisions are consistent with section 36 of the Federal Court of Australia Act 1976 .

Clause 44 - Writs

80.                This clause provides for the formal requirements of writs, commissions and processes issued by the Military Court.  That is, they should have the seal of the Military Court affixed to them and be signed by the Registrar, a Deputy Registrar or authorized person.  The signature of the Registrar or a Deputy Registrar may be an electronic signature applied to the document by an authorized person.  These provisions are consistent with section 37 of the Federal Court of Australia Act 1976 .

Clause 45 - Annual report

81.                This clause sets out the mechanism for ensuring that the administration and finances of the Military Court are accountable to the Attorney-General and Parliament (in a manner consistent with section 18S of the Federal Court of Australia Act 1976 ).  Subclause (1) provides for the Chief Justice of the Military Court to give the Attorney-General a report on the management of the administrative affairs of the Military Court as soon as practicable at the end of the financial year.  Subclause (3) requires the report to be tabled in Parliament.

82.                Subclause (2) provides for the financial statements and an audit report to be provided in accordance with the provisions of the Financial Management and Accountability Act 1997

Clause 46 - Proceedings arising out of administration of Military Court

83.                This clause allows for proceedings to be instituted by or against the Commonwealth in relation to matters arising out of the management of the administrative affairs of the Military Court.  This includes any proceedings relating to anything done by the Registrar under Part 3.  This clause is consistent with section 18X of the Federal Court of Australia Act 1976 .

Clause 47 - Oath or affirmation of office

84.                This clause provides that the Registrar and each Deputy Registrar of the Military Court must take an oath or affirmation of allegiance before proceeding to discharge the duties of his or her office, and sets out the form of that oath or affirmation.  This is consistent with section 18Y of the Federal Court of Australia Act 1976.

Part 4 - Jurisdiction of the Military Court: general

85.                Part 4 of the Bill includes various provisions on the exercise of jurisdiction in the Military Court generally.  This includes the Military Court’s power to punish contempt, the Chief Justice’s responsibilities for arranging Military Court’s business and the general obligation to exercise jurisdiction in open court.  These provisions and a number of other clauses in Part 3A are generally consistent with comparable sections in Parts II and III of the Federal Court of Australia Act 1976 , discussed further in Division 1.  Other provisions in Part 3A, such as the Military Court’s powers to determine its place of sitting, are specific to the Military Court.

Division 1 - Introduction

Clause 48 - Guide to this Part

86.                This clause sets out a Guide to Part 4 of the Bill.

Division 2 - Arrangement of business of the Military Court etc.

Clause 49 - Place of sitting

87.                This clause provides the Military Court with the power to determine its place of sitting.  Subclause (1) establishes a presumption that the Military Court will sit at a place in Australia to hear and determine a proceeding or part of a proceeding.  In this sense, Australia is defined in clause 3 to include the external Territories.  This presumption may be rebutted where the Military Court determines, in accordance with this clause, that it is both necessary and possible for it to sit at a place outside Australia to hear and determine the proceeding or the part of the proceeding

88.                Subclauses (2) provides that the Military Court may sit at any place outside Australia to hear and determine a proceeding or a part of a proceedingin respect of a charge of a service offence where it is necessary to do so, in the interests of justice, on application by the accused person or the Director of Military Prosecutions.  In determining this application, subclause (3) requires the Military Court to take a number of matters into account: namely, where the service offence occurred, the location of the accused person and any witnesses, the ability of witnesses to give evidence in Australia and submissions from the accused and the Director of Military Prosecutions.

89.                If the Military Court determines that it is necessary to sit at a place outside Australia, subclause (4) requires the Military Court to determine whether it is possible to do so.  In this regard, the Military Court must consider: the security of that place, any relevant Australian or foreign laws, any arrangements in place between Australia and the host nation, the international legal basis for the presence of the Australian Defence Force and the Military Court in that country and submissions from the accused person and the Director of Military Prosecutions. The agreements or arrangements in place between Australia and the host nation could include Status of Forces Agreements.  If the country in question does not have a recognised or functioning government in place and the presence of the Australian Defence Force is based upon a United Nations Security Council resolution, this would also be a relevant consideration. 

90.                Where it is not necessary or not possible for the Military Court to sit in a place outside Australia to hear and determine the proceeding or a part of the proceeding, the Military Court is required by subclause (5) to decide whether to hear and determine the proceeding or the part of the proceeding in Australia or an external Territory.  In some cases, the Military Court may determine that it is not necessary for it to sit at a place outside Australia because the interests of justice may be served by hearing the matter in Australia.  In these cases, the Military Court may decide to hear and determine the proceeding in Australia.

91.                However in other cases, the Military Court may determine that the interests of justice require it to sit in a place outside Australia to hear and determine a proceeding but it is not possible to do so in the circumstances. In such cases the Military Court may decide not to hear and determine the proceeding, either in or outside Australia.  This decision would not be a final determination of the matter and the Military Court may have an opportunity to reconsider whether a service offence should be tried overseas.  For example, the circumstances that made it not possible for the Military Court to sit overseas may change. 

92.                In the event that the Military Court decides not to hear a proceeding, either in or outside Australia, subclause (6) provides that the proceeding or part of the proceeding is taken to be discontinued and the charge to have been withdrawn.  This allows the charge to be dealt with under the Defence Force Discipline Act 1982 as a back-up system to the Military Court.  Under that Act, a court martial or Defence Force Magistrate may deploy to a place outside Australia, if necessary, to hear and determine the charge.

Clause 50 - Manner in which Military Court may be constituted

93.                Subclause (1) provides that the Military Court, in exercising its original jurisdiction, may be constituted by a single Federal Magistrate, a single Judge or the Full Court.  Subclauses (2) and (3) provide that the Full Court consists of 3 Judges sitting together but if one of the Judges dies, resigns or otherwise becomes unable to continue as a member of the Full Court once a hearing has commenced, the Full Court may be constituted by the remaining 2 Judges with the consent of the parties.  These provisions are modelled on subsections 14 (1), (2) and (3) of the Federal Court of Australia Act 1976 .

94.                Subclauses (4) & (5) respectively provide that the Military Court constituted by one or more Judges or a Federal Magistrate may sit and exercise the jurisdiction of the Court notwithstanding that the Court constituted by one or more other Judges or another Federal Magistrate is at the same time sitting and exercising the jurisdiction of the Court.  These provisions are consistent with subsection 14(6) of the Federal Court of Australia Act 1976 .

Clause 51 - Arrangement of the business of the Military Court

Responsibility of Chief Justice

95.                This clause gives the Chief Justice specific responsibility for arranging the business of the Military Court and, after appropriate consultation with other Judges and Federal Magistrates, the business of the Judges and Federal Magistrates who are to constitute the Military Court in any matter of any class of matters.  This includes assigning caseloads to particular Judges or Federal Magistrates, making arrangements to temporarily restrict a Judge or Federal Magistrate to non-sitting duties and to provide Judges and Federal Magistrates with access to judicial education, as part of the Chief Justice’s overall responsibility for ensuring the effective, orderly and expeditious discharge of the Court’s business.

96.                Subclause (3) provides that the Chief Justice has the same protection and immunity when exercising these functions as if he or she were exercising those functions as a member of the Military Court.  This means that judicial immunity applies to the Chief Justice in making arrangements to discharge the Court’s business so that he or she is protected from personal liability for exercising these functions. 

97.                Subclause (4) provides that the Federal Court does not have jurisdiction with respect to a matter relating to arrangements made by the Chief Justice in carrying out the business of the Court.  The Federal Court might otherwise have such jurisdiction under section 39B of the Judiciary Act 1903 .  This means that proceedings cannot be brought against the Chief Justice in the Federal Court for exercising his or her functions in this regard.

98.                These provisions are consistent with section 15 of the Federal Court of Australia Act 1976 .

Arrangements for Judges or Federal Magistrates who hold other judicial offices

99.                This clause makes provision for judicial officers in other federal courts to be made available by arrangement for work in the Military Court.  Such inter-curial arrangements will be made between the Chief Justice of the Military Court and the head of jurisdiction of the other federal court.  These provisions are modelled on subsection 15(2) & (3) of the Federal Court of Australia Act 1976

Clause 52 - Exercise of powers of Military Court in Divisions

100.            This clause provides that Judges of the Military Court must exercise the powers of the Court in the Appellate and Superior Division, while Federal Magistrates of the Military Court must exercise the powers of the Court in the General Division.  This corresponds to the assignment of Judges and Federal Magistrates to these respective Divisions (clause 12).  Clause 52 reflects the intention for certain matters to be heard in each Division, according to the structure of the Military Court as discussed under clause 9 and subject to the responsibilities to the Chief Justice to manage the Military Court’s business.  Subclause (3) confirms that the validity of any exercise of power by the Military Court otherwise than in accordance with these arrangements is not affected.

Clause 53 - Military Court divided in opinion

101.            This clause provides that judgments of the Full Court are to be pronounced according to the opinion of the majority of Judges, where the Judges constituting the Full Court are divided in opinion for the purposes of any proceeding.  Where the Judges are equally divided in opinion, the opinion of the Chief Justice or the next most senior Judge is to prevail.  However, in an appeal from a judgment of the Military Court constituted by a single Judge or Federal Magistrate, a Full Court equally divided in opinion will affirm the judgment appealed from.  These provisions are consistent with section 16 of the Federal Court of Australia Act 1976 .

Clause 54 - Exercise of jurisdiction in open court and in Chambers

102.            Subclause (1) provides that the Military Court will generally exercise its jurisdiction in open court.  However, certain matters set out in subclause (2) may be dealt with by a Judge or Federal Magistrate in Chambers.  This may include interim and pre-trial matters, and any other matter prescribed by the Military Court Rules.

103.            Subclause (3) allows a Judge or a Federal Magistrate to order that a proceeding in Chambers be adjourned into court.

104.            Subclause (4) allows the Military Court to order that a proceeding in open court be adjourned into Chambers if, apart from this subclause, the jurisdiction of the Military Court may be exercised by a Judge or Federal Magistrate sitting in Chambers in that proceeding.

105.            The Military Court may also make orders under subclause (5) to exclude the public or persons specified by the Military Court from a sitting of the Military Court, if satisfied that it is in the interests of justice or national security to do so.   National security is defined in section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 to mean Australia’s defence, security, international relations or law enforcement interests.

106.            This clause is consistent with section 17 of the Federal Court of Australia Act 1976 .

Division 3 - Other matters

Clause 55 - Making of orders and issuing of writs

107.            This clause gives the Military Court the power to make orders and issue writs, as appropriate, for matters in which it has jurisdiction.  See also clause 177 which provides that an order of the Military Court must be in writing or reduced to writing as soon as practicable.  This clause is consistent with section 23 of the Federal Court of Australia Act 1976

Clause 56 - Costs not to be awarded

108.            This clause makes it clear that the Military Court cannot award costs in a proceeding.

109.            This reflects the traditional position that the Crown neither pays nor recovers costs in proceedings for a charge of an offence.  This clause is consistent with section 23HE of the Federal Court of Australia Act 1976

Clause 57 - Powers of Military Court extend to whole of Australia

110.            This clause provides that the process of the Military Court runs, and the judgments of the Military Court have effect and may be executed both within and outside Australia.  The provision is consistent with section 18 of the Federal Court of Australia Act 1976 , is so far as it applies within Australia.   The extension of the Military Court’s powers outside Australia is necessary where the Military Court decides to sit at a place outside Australia to determine a proceeding or part of proceeding in respect of a charge of a service offence (clause 49).

  Clause 58 - Prerogative of mercy unaffected

111.            This clause provides that nothing in Part 4 or 5 abrogates or affects the prerogative of mercy.  This is consistent with section 31B of the Federal Court of Australia Act 1976 and also consistent with the way service offences are dealt with under the Defence Force Discipline Act 1982 , as stated in section 189 of that Act.

Clause 59 - Contempt of court

112.            Subclause (1) provides that, subject to any other Act, the Military Court has the same power to punish contempt of its power and authority as is possessed by the High Court in this regard.

113.            Subclause (2) specifies that the jurisdiction of the Military Court to punish contempt may be exercised by the Military Court as constituted at the time of the contempt.

114.            These provisions are consistent with section 31 of the Federal Court of Australia Act 1976

Part 5 - Original jurisdiction of the Military Court

115.            Part 5 of the Bill establishes the original jurisdiction of the Military Court.  This Part is modeled on Division 1A in Part III of the Federal Court of Australia Act 1976 . Division 3 of Part 5 deals with the conduct of proceedings in the original jurisdiction of the Military Court.  Division 4 of Part 5 deals with pre-trial matters in proceedings before the Military Court.  It includes a system of pre-trial hearings to narrow the range of issues that will have to be dealt with at trial and to reduce the length of trials.  It also includes a disclosure regime between the parties to ensure that the accused person knows the case against them and that any matters and facts which are not in dispute are identified at an early stage so that the trial can concentrate on matters which are genuinely in dispute.

Division 1 - Introduction

Clause 60 - Guide to this Part

116.            This clause sets out a guide to Part 5 of the Bill.

Division 2 - Original jurisdiction

Clause 61 - Original jurisdiction of the Military Court

117.            This clause confers on the Military Court original jurisdiction to hear and determine charges of service offences.  Service offences within the Military Court’s original jurisdiction are contained in the Defence Force Discipline Act 1982 .

118.            The Military Court may also be vested with original jurisdiction by other Acts.  This can be done by express provision or by the operation of section 15C of the Acts Interpretation Act 1901 to a provision that authorises a proceeding to be instituted in the Military Court in relation to a matter.  In particular, the Military Court will be vested with original jurisdiction to try service offences which would otherwise be heard by a summary authority under the Defence Force Discipline Act 1982 , on the up-front election of the accused person or on referral by the service tribunal.  This will be provided for in the Defence Force Discipline Act 1982 , in the Military Court of Australia (Transitional and Consequential Amendments) Bill that is to follow this Bill.

119.            The original jurisdiction of the Military Court will include any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.  In particular, the Military Court will be vested with original jurisdiction to hear and determine appeals, on questions of law, from certain determinations of courts martial and Defence Force magistrates.  The residual role for courts martial and Defence Force magistrates is expected to be very limited - they will only be able to hear matters where the trial must be conducted overseas and the Military Court is unable to deploy (see clause 49 for more detail on place of sitting).  This will be provided for in the Defence Force Discipline Act 1982 , in the Military Court of Australia (Transitional and Consequential Amendments) Bill that is to follow this Bill.

120.            The Military Court will not have original jurisdiction to hear or determine charges of custodial offences.  These offences are established in section 54A of the Defence Force Discipline Act 1982 and relate to persons in detention under that Act.  This is because the punishments that apply to custodial offences under the Defence Force Discipline Act 1982 are more appropriately administered by a summary authority under that Act.

Clause 62 - Charges of service offences not to be dealt with on indictment

121.            This clause provides that charges of service offences are to be dealt with otherwise than on indictment.  This means that they will not be tried before a jury.  This is consistent with the determination of service offences under the Defence Force Discipline Act 1982 , which does not provide for trial by civilian jury either.

Clause 63 - Exercise of original jurisdiction

122.            Subclauses (1) and (2) provide that the original jurisdiction of the Military Court is to be exercised by a single Federal Magistrate in the General Division, unless the proceeding is for the trial of a charge of a serious service offence prescribed in Schedule 3 or it is an appeal from a decision of a court martial or Defence Force magistrate under the Defence Force Discipline Act 1982 .  In these cases, the original jurisdiction of the Military Court is to be exercised in the Appellate and Superior Division.  The Chief Justice may also direct that a proceeding be heard and determined in the Appellate and Superior Division.

123.            This will ensure that charges of the most serious service offences prescribed in Schedule 3 are heard by Judges, as well as charges which the Chief Justice considers appropriate for Judges to hear and determine, while less serious service offences are tried by Federal Magistrates. 

124.            Similarly, appeals from decisions of a court martial or Defence Force magistrate will be heard and determined by Judges rather than Federal Magistrates. 

125.            A single Judge will exercise the original jurisdiction of the Military Court in the Appellate and Superior Division, in respect of a Schedule 3 offence or a proceeding which the Chief Justice has directed to be heard in that Division (subclauses (3) and (4)). However, appeals from a court martial or Defence Force magistrate will be heard by the Full Court in the Appellate and Superior Division (subclause (5)).

126.            Subclause (6) defines a Schedule 3 offence as an offence against a provision of the Defence Force Discipline Act 1982 that is specified in the table in Schedule 3.  It also includes an ancillary offence in relation to an offence specified in the table in Schedule 3 that was committed by a person at a time when the person was a defence member or a defence civilian.  This provision makes it clear that, in these circumstances, an ancillary offence is also a service offence.

127.            Subclause (7) defines an ancillary offence, in this sense, as meaning an offence against section 11.1, 11.4 or 11.5 of the Criminal Code (attempt, incitement and conspiracy) or section 6 of the Crimes Act 1914 (accessory after the fact). 

Clause 64 - Referral of proceedings from one Division to another

128.            Subclause (1) allows the Chief Justice, on application by a party or on his or her own initiative, to refer a proceeding pending in one Division of the Military Court to the other Division.  However, a Schedule 3 offence cannot be referred to the General Division (subclause (2)) because those offences can only be heard in the Appellate and Superior Division (clause 63).

129.            Subclause (6) sets out certain matters which the Chief Justice must take into account when deciding whether to refer a proceeding between Divisions.  This includes the seriousness of the service offence, the complexity of the matters raised by the proceeding, the wishes of the parties and the interests of the administration of justice.  The Military Court Rules may also make provision in relation to the referral of proceedings from one Division to another (subclause (4)) and set out additional factors to be considered by the Chief Justice (subclause (5)).

130.            If the Chief Justice refers a proceeding to the other Division, the Chief Justice may impose such conditions on the referral as he or she considers necessary pending the disposal of the proceeding (subclause (7)).  A decision by the Chief Justice to refer or not to refer a proceeding between Divisions, subject to any conditions, cannot be appealed (subclause (8)).

Division 3 - Instituting proceedings

Clause 65 - Instituting proceedings in the Military Court

131.            This clause sets out the procedure for instituting proceedings in the original jurisdiction of the Military Court for the trial of a charge of a service offence.  Subclause (1) requires the proceedings to be instituted in accordance with the Military Court Rules.  Subclause (2) requires the Military Court, on the referral of a charge by the Director of Military Prosecutions to the Military Court, to issue a summons to the person charged with a service offence to appear before the Military Court on a date and at a time and place specified in the summons.

Clause 66 - Condonation of service offence not to prevent institution of proceeding

132.            This clause provides that condonation of a service offence does not prevent a proceeding being instituted in the Military Court in respect of the service offence.  This is consistent with the way service offences are dealt with under the Defence Force Discipline Act 1982 , as stated in section 143 of that Act.

Clause 67 - Charge sheet may include charge of alternative offence

133.            This clause provides that a charge sheet for a service offence can also include alternate offence against a single accused person.  It is modelled on section 23BA of the Federal Court of Australia Act 1976 .  This gives flexibility in a case where it is not clear what findings the Military Court will make but where more than one finding will support a conviction.  The Military Court can be given the option of finding the accused person guilty of one or other of the alternative offences.  For example, an accused person may be charged as a principal to an alleged offence or, in the alternative, as a person who has aided and abetted the offence.

134.            The Military Court will have inherent power to direct that one or more counts be removed from a charge sheet if it considers that it would be unfair for the trial to proceed on the charge sheet as filed.

Clause 68 - Single charge sheet can cover multiple accused persons

135.            This clause provides that a single charge in a charge sheet can cover more than one accused person for the same service offence if the charge is founded on the same or essentially the same alleged facts for each accused.  It is modelled on section 23BB of the Federal Court of Australia Act 1976 .

136.            This will provide flexibility to draft a charge sheet in a case where it is alleged that more than one person was party to an alleged offence.  It is not necessary to have a lengthy charge sheet repeating the same allegations against each accused person.  This provision may be used if, for example, it is alleged that more than one accused person was a party to the same service offence.  The Director of Military Prosecutions will still need to prove its case separately against each accused person and the Military Court will need to reach a separate verdict against each accused. 

137.            The provision ensures that, when appropriate, all relevant and related issues can be dealt with in one trial before the Military Court.  The Military Court will have power under clause 69 to prevent unfairness to the accused person.

Clause 69 - Separating one or more accused persons from a single charge

138.            This clause is modelled on section 23BC of the Federal Court of Australia Act 1976 .  Subclause (1) gives the Military Court power to direct that one or more of the accused person included in a single charge in a charge sheet be tried separately, either in the same proceedings but on a different charge in the same charge sheet or in a separate trial, if satisfied that it is expedient to do so in the interest of justice.

139.            Subclauses (2) and (3) give the Military Court power to make an order either before or after a trial has commenced and power to make any other orders that it considers appropriate in the circumstances.

Clause 70 - Single charge sheet can include multiple charges

140.            This clause is modelled on section 23BD of the Federal Court of Australia Act 1976 .  Subclause (1) provides that a single charge sheet may include charges for more than one service offence against a single accused person if they are founded on the same alleged facts or they relate to a series of alleged service offences of the same or similar character or purpose.

141.            Subclause (2) provides that a charge sheet may include charges against any number of accused person for the same or different service offences if they are founded on the same or substantially the same alleged facts or they relate to a series of alleged service offences of the same or similar character or purpose.

142.            These provisions give flexibility to draft a charge sheet in a case where one or more persons are alleged to have engaged in a course of unlawful conduct.  They ensure that, when appropriate, all relevant and related issues can be dealt with in one trial before the Military Court.  The Military Court will have power under clause 71 to prevent unfairness to the accused person.

Clause 71 - Separating one or more charges from a single charge sheet

143.            This clause is modelled on section 23BE of the Federal Court of Australia Act 1976 .  Subclause (1) gives the Military Court power to direct that one or more of the charges in a charge sheet be tried separately in separate proceedings if satisfied that it is expedient to do so in the interest of justice.  Any separate trial will have to take place under a new charge sheet.

144.            Subclauses (2) and (3) give the Military Court power to make an order either before or after a trial has commenced and power to make any other orders that it considers appropriate in the circumstances.

145.            This may occur if, for example, the Military Court considers that a charge sheet covers so many service offences or so many accused persons, that it would be unfair to allow a matter to proceed as a single trial.

Clause 72 - Amending charges

146.            This clause sets out the rules for when the Director of Military Prosecutions can amend a charge sheet that has been filed in the Military Court or replace a charge sheet.  It is modelled on section 23BH of the Federal Court of Australia Act 1976 .

147.            Under subclause (1) the Director of Military Prosecutions can amend or replace a charge included in a charge sheet at any time before a trial commences.  The procedure for amending or replacing a charge will be set out in the Military Court Rules. 

148.            Subclause (2) provides that once a trial has commenced the Director of Military Prosecutions can only amend or replace a charge included in a charge sheet with the leave of the Military Court.

149.            Subclause (3) provides that if the Director of Military Prosecutions replaces a charge included in a charge sheet the Military Court must dismiss the replaced charge.

150.            Subclause (4) provides that if a charge included in a charge sheet is amended or replaced, the Military Court may make such orders as it thinks appropriate in the circumstances.  For example, if a charge sheet is amended to remove a charge against the accused person, the Military Court could discharge the accused in relation to that charge.

151.            Subclause (5) makes it clear that this clause does not affect the amendment of a charge under other provisions of this Part.  Examples of such provisions are clause 83 (the Military Court may amend a charge included in a charge sheet to remove a defect objected to by the accused person), clause 86 (a charge will be taken to have been amended if the Director of Military Prosecutions advises the Military Court that the accused has entered guilty pleas to some counts in satisfaction of others) and clause 87 (a charge will be taken to have been amended if a guilty plea is made in relation to a different service offence capable of being supported by a charge included in the charge sheet).

Division 4 - Pre-trial matters

Clause 73 - Pre-trial hearings

152.            This clause sets out a procedure for pre-trial hearings before the Military Court.  Subclause (1) provides that the Director of Military Prosecutions and the accused person must attend a pre-trial hearing before the Military Court on the date and at the time and place notified by the Military Court.  At the hearing, the accused person may enter a plea to each charge that relates to the accused person (subclause (3)).

153.            Subclause (2) gives the Military Court power to order the parties to attend further pre-trial hearings.  The Military Court will be able to use that power to explore the scope for narrowing the range of issues that will have to be dealt with at trial.

154.            Subclause (4) provides power for the Military Court to make orders and determinations during a pre-trial hearing for the efficient management and disposal of a trial of the charge of a service offence.

155.            Subclause (5) sets out a non-exclusive list of the orders that can be made by the Military Court during a pre-trial hearing and is designed to avoid doubt about whether, for example, the Military Court can make orders at the pre-trial stage that will govern the conduct of the trial.  Among other things, the Court can make orders in relation to the admissibility of evidence and on any legal issues which are likely to arise at trial.  The Military Court will have power to move as much legal argument as possible to the pre-trial stage to save time and resources when the trial starts. 

156.            The Military Court will also have power to rule on an objection to the charge or a submission that the trial should not proceed for any other reason.  This would include a claim of autrefois acquit (previously acquitted for the same offence), autrefois convict (previously convicted of the same offence) or a pardon.

157.            Subclause (6) has the effect that any ruling made in the pre-trial process will be binding at a trial, irrespective of which Judge or Federal Magistrate has made the ruling, unless the Military Court is satisfied that applying the ruling would be contrary to the interests of justice.

158.            Subclause (7) has the effect that an accused person who wants to object to a charge or submit that the trial should not proceed for any other reason must normally raise their objection in the pre-trial process.  This subclause provides that if a matter covered by paragraph (5)(a) or (d) was not raised during the pre-trial hearings, it cannot be raised at trial unless the Military is satisfied that not to do so would be contrary to the interests of justice.

159.            This clause is modelled on sections 23CA, 23CB and 23CC of the Federal Court of Australia Act 1976 .   These provisions are designed to ensure that pre-trial procedures can be used effectively by the Military Court to narrow the range of issues that will have to be dealt with at trial and to reduce the length of trials.  The purpose of this procedure is to ensure that the Military Court is in a position to take control of the proceedings at an early stage and that it is made clear from that stage whether the accused person pleads guilty or not. 

160.            This clause does not prevent the Military Court from conducting the pre-trial hearing immediately before the trial.  This might be done to minimise the costs that would be incurred by the parties when attending at the Military Court on different days for pre-trial and trial hearings, particularly where the parties would incur substantial travel expenses.  It may be appropriate for the pre-trial and trial hearings to be conducted consecutively where the proceeding is not particularly complex and the parties agree to do so.  

Clause 74 - Pre-trial and ongoing disclosure

161.            This clause gives the Military Court power to make orders for disclosure by the Director of Military Prosecutions and the accused person.  The disclosure regime only applies if the Military Court makes an order under this clause.  This clause is adapted from section 23CD of the Federal Court of Australia Act 1976 .

162.            If the Military Court makes an order for disclosure, subclause (1) provides for disclosure by the Director of Military Prosecutions in accordance with clause 75 and ongoing disclosure obligations on both parties in accordance with the Military Court Rules.  Orders for ongoing disclosure might be made to account for any additional material that comes into the possession of the Director of Military Prosecutions or the accused person after formal disclosure has been completed, or the fact that a party may decide to alter the basis on which it will present its case.

163.            Subclause (3) requires the accused person to give notice if he or she intends to raise a defence of alibi or adduce evidence that the accused person was suffering from mental impairment.  Procedures like this are common in State and Territory court proceedings and are similar to proceedings before a service tribunal under the Defence Force Discipline Act 1982 , as provided by section 145A of that Act.  This will ensure that the Director of Military Prosecutions gets notice of the relevant matter before trial so that the issue can be properly tested at trial.  These are the only circumstances in which an accused person is required to disclose details of a proposed defence.

164.            The pre-trial disclosure provisions have two purposes.  The first is to ensure that the accused person knows the case against them and has access to any unused material which is potentially relevant to responding to that case.  The second is to ensure, as far as possible, that any matters and facts which are not in dispute are identified in advance of the trial so that the trial can concentrate on matters which are genuinely in dispute.

Clause 75 - Disclosure of case for the prosecution

165.            This clause outlines what the Director of Military Prosecutions must disclose if the Military Court makes an order under clause 74.  However, the list of matters in clause 75 is not exhaustive.  The notice of the prosecution’s case can include other matters.  This clause is modelled on section 23CE of the Federal Court of Australia Act 1976 .

166.            The Director of Military Prosecutions must provide a notice of the prosecution’s case, which includes an outline that sets out the facts, matters and circumstances on which the case is based.  The Director of Military Prosecutions must provide copies or access to the material it intends to rely on.  The Director of Military Prosecutions must also disclose any material which it does not intend to use but which is potentially relevant to the case of the accused person or that might adversely affect the reliability or credibility of a prosecution witness.  The Director of Military Prosecutions can meet these obligations in relation to unused material by giving copies of the material to the accused person or by giving the accused person details of the material which are sufficient to enable the accused person to determine if it wants to see the material.  The latter procedure may be used if the relevant material is voluminous or sensitive.  If the accused person asks for access, a decision can be made on whether to allow access and, if so, in what form.  If necessary, the Director of Military Prosecutions can seek a direction from the Court.

167.            The Director of Military Prosecutions must also provide a list of any material that is not in his or her possession but which the Director reasonably believes may be relevant to the accused person’s case.  The Director of Military Prosecutions must also provide a copy of any information, document or other thing that is adverse to the accused person’s credit or credibility.

168.            In most cases the Director of Military Prosecutions will already have disclosed part or all of this material to the accused person.  Clause 78 makes it clear that information which has already been disclosed does not have to be disclosed a second time.

169.            This clause is designed both to ensure that as many issues a possible are resolved at the pre-trial stage and that the Director of Military Prosecutions makes full and proper disclosure to the accused person of material that it does not rely on but which has the potential to help the accused person. It does not impose an obligation on the Director of Military Prosecutions to speculate about what defences the accused person may plan to run.  The obligation in relation to unused material is to disclose information, documents or things in the possession of the Director of Military Prosecutions that the Director reasonably believes may be relevant to the accused person’s case.  The clause does not require the Director of Military Prosecutions to consider fanciful or unrealistic defences that the accused person may want to run.

Clause 76 - Copies of things need not be provided if impractical etc.

170.            This clause is modelled on section 23CI of the Federal Court of Australia Act 1976 .  It makes it clear that a party does not have to provide a copy of a thing under the disclosure regime if it is unlawful, impossible or impracticable to provide a copy.  However, under subclause (2), the party must allow the other party a reasonable opportunity to inspect the thing.

171.            This clause will apply if, for example, an exhibit cannot be easily copied or if it would be an offence for the other party to possess a copy.

Clause 77 - Personal details need not be provided

172.            This clause protects personal details of potential prosecution witnesses.  It is modelled on section 23CJ of the Federal Court of Australia Act 1976 .

173.            Subclause (1) provides that nothing in the disclosure regime requires the Director of Military Prosecutions to disclose the address or telephone number of a witness or other living person, unless that information is relevant to the issues in the trial or the Military Court makes an order directing disclosure. Subclause (2) provides that the Military Court must not make an order for disclosure unless it is satisfied that the accused person has a legitimate need for the information and that, if the disclosure is likely to present a risk to a person’s safety or welfare, the accused person’s need for the information outweighs that risk.

174.            Subclause (4) gives the Director of Military Prosecutions authority to delete these details, or render them illegible, before providing material to the accused person.

175.            This clause recognises that there may be cases where potential prosecution witnesses may be at risk of intimidation and that, in most cases, the accused person does not need personal details of this kind to prepare for trial.

176.            Subclause (3) provides that the clause does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address or if it could not reasonably be inferred from the matters disclosed that it is a particular person’s address.

177.            When a witness gives evidence at trial, the Military Court will have power under clause 165 to make any orders that may be needed to protect the witness.

Clause 78 - Things need not be disclosed to a party more than once

178.            This clause is modelled on section 23CK of the Federal Court of Australia Act 1976 .  It makes it clear that a party does not have to disclose anything under the disclosure regime which has already been disclosed, either during the proceeding or any proceeding relating to a service offence founded on alleged facts that are the same or substantially the same as those for a service offence being prosecuted in the current proceeding.

Clause 79 - Effect on legal professional privilege and other privileges and duties etc.

179.            This clause is modelled on section 23CL of the Federal Court of Australia Act 1976 .  It deals with the effect of the disclosure regime on legal professional privilege, other privileges, public interest immunity and the National Security Information (Criminal and Civil Proceedings) Act 2004 .  It also deals with the effect of the disclosure regime on investigative agencies.  Subclause (5) makes it clear that legal professional privilege includes client legal privilege.

180.            Under the pre-trial disclosure provisions, the Director of Military Prosecutions must provide copies or access to the material it intends to rely on in the proceedings.  The Director of Military Prosecutions must also disclose any material which it does not intend to use but which is potentially relevant to the case of the accused person or that might adversely affect the reliability or credibility of a prosecution witness.  The accused person must provide notice of an intention to raise a defence of alibi or mental impairment.

181.            This clause clarifies the relationship between these mandatory disclosure requirements and privileges such as legal professional privilege.  For the purposes of pre-trial disclosure, legal professional privilege is automatically abrogated.  However, other privileges and duties, including public interest immunity, are unaffected.

182.            This clause balances the policy objectives underlying the disclosure regime of maximising disclosure of each party’s case against the rationale for protecting privilege.  The partial abrogation of privilege for pre-trial disclosure but not for the trial appropriately achieves this balance.

183.            This clause ensures that there is no potential for the disclosure regime to be frustrated by claims for legal professional privilege.  That is necessary given that any document that was brought into existence for use in litigation normally attracts legal professional privilege.  That means that things such as witness statements and expert reports are privileged documents and a party could potentially withhold material of that kind from production if legal professional privilege applied under the disclosure regime. 

184.            If material is adduced at trial, privilege will be waived.  It is appropriate that material be disclosed earlier in the proceedings to ensure that the disclosure regime is effective. It is also recognised that material disclosed at the pre-trial stage, may not in fact be used in the proceedings.  To ensure a party is not disadvantaged by the disclosure of this material, legal professional privilege is only abrogated at the pre-trial stage.  The party’s claim to legal professional privilege still exists at the trial.

Legal professional privilege

185.            The clause provides that a party is not excused from disclosing material on the basis that the material is subject to legal professional privilege held by the party.  The disclosure regime does not otherwise abrogate or affect the law relating to legal professional privilege.

186.            The clause makes it clear, to avoid doubt, that if there is an obligation on a party to disclose material under the disclosure regime, that obligation overrides any claim for legal professional privilege in relation to the material that can be raised by the party.  However, if the material is disclosed that will not amount to a waiver of privilege.  It will not prevent the party from claiming legal professional privilege, if they wish to do so, at the trial or in any other proceedings.

187.            These provisions will have minimal impact on the rights of an accused person given the limited nature of the disclosure obligations on an accused person. 

188.            The provisions may have more impact on the Director of Military Prosecutions, given the wider range of material the Director of Military Prosecutions can be ordered to disclose.  However, even then, most of the material which the Director of Military Prosecutions can be required to produce is unlikely to be covered by legal professional privilege except to the extent that material that came into existence for use in litigation normally attracts legal professional privilege.

189.            The clause does not override any claim for legal professional privilege that a third party has made in relation to material.  In those circumstances, the claim of privilege should be resolved before the material can be disclosed by a party to the proceedings under the disclosure regime.  If the claim is upheld, the material cannot be disclosed.

National Security Information (Criminal and Civil Proceedings) Act

190.            Subclause (3) preserves the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 .  If that Act applies to particular material, the question whether the material should be disclosed and, if so, in what form, will be determined under the provisions of that Act.

Public interest immunity

191.            Subclause (3) also preserves the operation of public interest immunity.  A party will be able to withhold material if there is a claim for public interest immunity.  If there is such a claim, the Military Court will need to rule upon it applying normal principles.

Investigative agencies

192.            Subclause (4) provides that the disclosure provisions do not abrogate or affect the law relating to any duty of a person investigating the accused person to ensure that information and other things are disclosed to the Director of Military Prosecutions or the accused person.

193.            The provisions of this Bill do not impose any new obligations on an investigative agency, and it is not appropriate for it to do so given that the investigative agency will not be a party to the proceedings before the Military Court.  However, the Bill will not detract from or alter the normal duties and obligations of an investigative agency to ensure that the prosecution is equipped to discharge its disclosure obligations, and will not affect the normal power of the Military Court to prevent a trial from proceeding if the Military Court considers that would be unfair unless further material is disclosed to the accused person.

Clause 80 - Consequences of disclosure requirements

Orders to ensure non-compliance does not unfairly affect the other party

194.            This clause is modelled on section 23CM of the Federal Court of Australia Act 1976 .  It deals with sanctions if a party fails to comply with its obligations under the disclosure regime.  It provides an incentive for both parties to cooperate with the Military Court to resolve as many issues as possible at the pre-trial stage.

195.            A disclosure regime is only likely to work effectively if the parties are prepared to cooperate and the Military Court is prepared to make orders to support compliance.  The Director of Military Prosecutions will normally have an incentive to comply with disclosure obligations, because of the risk that the Military Court may not allow the trial to proceed but the accused person may not have the same incentive.  The accused person may, in fact, be concerned that complying even with limited obligations that are imposed on an accused person has the potential to prejudice their position at trial.  This clause gives the Military Court a range of powers to encourage compliance and imposes a range of potential sanctions that can be imposed if a party does not comply.

196.            Subclause (1) provides that the Military Court may make such other orders as it thinks appropriate in the circumstances in relation to a party’s failure to comply with an order under clause 74.  This might include any or all of the following orders:

  • that evidence not be admitted;
  • that a party not be allowed to call an expert witness;
  • that a party be allowed to tender a statement or other document as evidence of its contents;
  • that the accused person not be able to take issue with a fact, matter or circumstance;
  • grant an adjournment to a party.

197.            Subclause (2) provides that the Military Court must ensure that any orders it may makes under this clause does not result in an unfair trial.

Certain evidence cannot be adduced at trial unless there is earlier disclosure

198.            Subclauses (3) and (4) confirm that the accused person must seek the leave of the Military Court to adduce evidence in relation to an alibi or mental impairment if the accused person has failed to provide notice of particulars to the Director of Military Prosecutions (subclause 75(3) requires the accused person to tell the Director of Military Prosecutions that they intent to produce supporting evidence of alibi or mental impairment and to provide notice of particulars prepared in accordance with the Military Court Rules).

Clause 81 - Restricting further disclosure of disclosed material

199.            This clause is modelled on section 23CN of the Federal Court of Australia Act 1976 .  It restricts the things that can be done with material that is disclosed under the disclosure regime.  This is an important provision designed to protect persons whose rights and interests may be prejudiced by material released under the disclosure provisions.

200.            The clause applies to material disclosed by either party.  The clause refers to such material as “protected material”.

201.            Subclause (2) makes it an offence for a person who has access to protected material (described as an “entrusted person”) to disclose the material to another person.  The maximum penalty is imprisonment for 2 years.

202.            Subclause (3) sets out a number of exceptions to the prohibition to ensure that the protected material can be used for appropriate purposes and that the protection does not apply too widely.  They are that the disclosure is for the purposes of the proceedings; the Military Court has given leave for the disclosure; the disclosure happens for the purposes of, or in connection with, the performance of the duties of the entrusted person’s official employment; or the material has been lawfully disclosed in open court by, for example, being adduced in evidence.

203.            A defendant will bear an evidential burden in relation to a matter in subclause (3).  That is appropriate given the practical difficulties that would face the prosecution if it was required to prove that none of the exceptions applied in a particular case, given the range of matters covered by the exceptions.  The defendant will know why he or she made the relevant disclosure, and in what circumstances, and should have no difficulty in discharging an evidential burden if their conduct fell within one of the exceptions.

204.            The term “official employment” is defined in subclause (5).  It means employment as the Director of Military Prosecutions, the Defence Minister, a person appointed by the Governor-General in relation to the prosecution, a person performing services for any one of those persons, or a person exercising the powers or performing the functions of the Director of Military Prosecutions.

Clause 82 - Restricting admissibility of disclosed material as evidence in other proceedings

205.            This clause is modelled on section 23CO of the Federal Court of Australia Act 1976 .  It limits the use which can be made of material that has been disclosed under the disclosure regime.  It protects the position of an accused person who discloses prejudicial information and of a person whose rights may be affected if information disclosed by the Director of Military Prosecutions can be used in evidence.

206.            Subclause (1) gives the Military Court power to order that some or all of the material is not admissible in any court or before a person authorised to hear evidence.  A party can apply for an order under subclause (1) at the time it discloses material or a later time.

207.            Subclause (2) provides that a subclause (1) order will cease to have effect if, during the primary proceedings, the material is lawfully disclosed in open court. 

208.            Subclause (3) modifies the operation of the clause.  It gives the Military Court power to set aside or vary an order made under subclause (1), and allow material to be used in later proceedings, if the Military Court is satisfied that it is in the interests of justice to do so.  An application for an order under subclause (3) can be made by any interested person.  That term is not defined.  It covers any person who can satisfy the Military Court that they have an interest in having the order set aside or varied.  It may, for example, be the Director of Military Prosecutions who wants to use the material in a later prosecution, or it may be a party in civil proceedings who wants to use the material to establish a civil claim.

209.            If there is an application under subclause (3) the Military Court will balance the public interest in allowing the material to be used in evidence against the public interest in ensuring that a person does not suffer undue prejudice because material that otherwise be confidential has been disclosed under the disclosure regime.

210.            Subclause (4) provides that, before making an order under subclause (3), the Military Court may direct that notice of the application for the order be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.  That provision is needed because an application for an order under subclause (3) may relate to material that affects the rights of a person who is not a party to the later proceedings.

211.            It is possible, for example, that a party to a civil action may want to use material that was disclosed by the Director of Military Prosecutions in an earlier proceeding.  The Military Court may consider that the Director of Military Prosecutions should be given an opportunity to make submissions before deciding whether to allow the material to be used in the civil proceedings.

Clause 83 - Objecting to charges

212.            This clause is modelled on section 23CP of the Federal Court of Australia Act 1976 .  Subclause (1) sets out the grounds on which an accused person may object to a charge in a charge sheet.  They are: a formal defect apparent on the face of the charge sheet, the Military Court lacks jurisdiction, autrefois acquit, autrefois convict, or a pardon.

213.            The effect of clause 83 is that the objection must be raised during a pre-trial hearing unless the Military Court allows otherwise.

214.            Subclause (2) sets out the things the Military Court can do if it upholds an objection to a charge in a charge sheet.  They include dismissing the count in relation to the accused person, discharging the accused person in relation to the count, and making such other orders as it thinks appropriate including, for example, orders in relation to bail and custody.

215.            Subclause (2) also provides that the Military Court can make an order allowing the charge to be amended if the objection relates only to a formal defect apparent on the face of the charge sheet.

Division 5 - Matters relating to pleas, the trial and verdicts

Clause 84 - Practice and procedure applicable to the trial

216.            This clause is modelled on section 23FB of the Federal Court of Australia Act 1976 .  It provides that the rules of practice and procedure that apply at trial are those in force at the time the charge is referred to the Military Court, or those in force at another time if the Military Court so orders.

217.            The effect is that if a procedural rule changes after a charge sheet has been referred, the Military Court will apply the old procedure and not the new one at a trial unless it makes an order to the contrary.  The Military Court may make an order to the contrary if, for example, a change to a procedural rule has the potential to benefit the accused person or to shorten a trial in a way that does not significantly affect the accused person.

218.            This clause ensures that an accused person will not suffer prejudice if changes are made to a procedural rule after a charge sheet has been filed and proceedings have commenced before the Military Court.

Clause 85 - Entering pleas

219.            This clause is modelled on section 23FD of the Federal Court of Australia Act 1976 .  Subclause (1) provides that the accused person may enter a plea of guilty, or not guilty, to a charge in the charge sheet.

220.            The effect of subclause (2) is that the accused person is taken to have entered a plea of not guilty if the accused person fails to enter a plea when directed by the Military Court.  An accused person who says nothing will have failed to enter a plea.

221.            Subclause (3) makes it clear that an accused person may both enter a plea to a charge and object to the charge.  The fact that an accused person pleads not guilty to a charge in a charge sheet does not mean the accused person is taken to have accepted that the charge is legally valid or effective.

Clause 86 - Pleading to some charges in satisfaction of other charges

222.            This clause provides that it is open to the Director of Military Prosecutions and the accused person to agree that the accused person will plead guilty to some charges in the charge sheet and the Director of Military Prosecutions will accept the plea in satisfaction of all charges in the charge sheet.  In that situation, the charge is taken to be amended so that no other charge in the charge sheet covers the accused person.

223.            The effect is that the plea of guilty can be accepted by the Military Court without need to amend the charge and, if the plea is accepted, the Military Court will not have to make any orders in relation to the outstanding charges in the charge sheet.

Clause 87 - Pleading to different service offences capable of being supported by charge included in charge sheet

224.            Subclause (1) ensures that it is open to the Director of Military Prosecutions and the accused person to agree that the accused person will plead guilty to a charge of a service offence that is not specified in the charge sheet and the Director of Military Prosecutions will accept the plea in satisfaction of the charge.  That can be done without amending the charge sheet if the matters alleged in the charge sheet can support an allegation that the accused person committed the other service offence.  The Military Court will also need to have jurisdiction to try the person for the other service offence.

225.            Subclause (2) provides that, for the purposes of the Bill the charge sheet is taken to have always included a charge against the accused person for the service offence.

226.            If the accused person proposes to enter a plea of guilty to a service offence that cannot be supported by the matters alleged in the charge sheet, the Director of Military Prosecutions will need to amend the charge sheet under clause 72 to include a charge for the service offence.

Clause 88 - Changing pleas

227.            This clause is modelled on section 23FG of the Federal Court of Australia Act 1976 .

Accused person may change plea

228.            Subclause (1) provides that an accused person may change his or her plea in accordance with this clause.

Changing plea to guilty

229.            Under subclause (2), an accused person who has entered a plea of not guilty in relation to a charge in the charge sheet, can change the plea to guilty.  The Military Court has power under clause 90 to reject the change of plea in the interests of justice.

Changing plea to not guilty

230.            Under subclause (3) an accused person who has entered a plea of guilty in relation to a charge in the charge sheet can only change the plea to not guilty if the Military Court gives leave.  The Military Court will need to be satisfied that there are good reasons why the accused person should be allowed to change a plea from guilty to not guilty.  However, there may be a basis for changing a plea if, for example, a court delivers judgment in another case which shows that the accused person pleaded guilty on the basis of a mistaken view of the law.  The Military Court can grant leave at any time before the Military Court imposes a sentence on the accused person in relation to an offence.

231.            Subclause (4) applies if the accused person is given leave to change a plea from guilty to not guilty.  The Military Court must direct that the accused person be put on trial in relation to the charge and can make such orders as to pre-trial matters as it thinks appropriate.

232.            The Military Court will be able to make orders under Division 4 to ensure that there is a pre-trial process before the matter goes to trial.

Clause 89 - Military Court’s verdict if no case to answer

233.            This clause is modelled on section 23FH of the Federal Court of Australia Act 1976 .  It gives the Military Court power to rule that there is no case to answer for a charge in the charge sheet after the close of the Director of Military Prosecutions’ case and before the Military Court delivers its verdict for the charge.  If the Military Court finds the accused person has no case to answer in relation to a charge the Military Court must enter a judgment of acquittal and discharge the accused person in relation to that charge.

Clause 90 - Consequences of guilty pleas and guilty verdicts

234.            This clause is modelled on section 23FJ of the Federal Court of Australia Act 1976 .

Guilty pleas

235.            Subclause (1) provides that if the accused person pleads guilty, either from the outset or by way of change of plea, the Military Court must accept the plea unless either it gives leave to the accused person to change the plea to not guilty or it would be contrary to the interests of justice to accept the plea of guilty.  The latter situation may arise if, for example, the Military Court is satisfied that the accused person does not understand the consequences of the plea.

236.            Subclause (2) provides that if the Military Court does not accept a plea of guilty the plea has no further effect and the accused person is taken to have entered a plea of not guilty to the charge.

Consequences of guilty verdict or acceptance of guilty plea

237.            Subclause (3) applies if the Military Court accepts a plea of guilty for a charge in the charge sheet.  The Military Court is taken to have found the charge proven in relation to the accused person and the accused is taken to be convicted of the service offence covered by the charge.  There is no need for the Military Court to formally announce that the accused person has been convicted. 

238.            Subclause (4) applies if the Military Court finds an accused person guilty of a service offence covered by a charge in the charge sheet or a plea of guilty is accepted for a charge in the charge sheet in relation to an accused person.  The Military Court must proceed to sentence the accused person in relation to the service offence, although it can adjourn the proceedings before doing so.  If the charge has an alternative offence included in the charge sheet in relation to the accused person, the Military Court must discharge the accused in relation to the charge of the alternative offence.

239.            Subclause (5) applies if the accused person is subsequently given leave to change a plea of guilty to a plea of not guilty.  The charge is taken not to have been found proven and the accused person is taken not to have been convicted.  The Military Court must cease any relevant sentencing proceedings to the extent that those proceedings relate to the plea of guilty and any alternative counts on the charge sheet will be taken not to have been discharged.

240.            Subclause (6) applies if, when sentencing an accused person, the Military Court makes an order under section 19B of the Crimes Act 1914 which provides that, in appropriate circumstances, a sentencing court can deal with a matter without proceeding to conviction.  In that situation, the accused person is deemed not to have been convicted of the offences despite subclause (3).

Clause 91 - Consequences of not guilty verdicts

241.            This clause is modelled on section 23FK of the Federal Court of Australia Act 1976 .  It provides that, if the Military Court finds an accused person not guilty of a service offence covered by a charge in the charge sheet, the Military Court must acquit and discharge the accused person in relation to the charge.

Division 6 - Persons suffering from mental illness or intellectual disability

Clause 92 - Persons suffering from mental illness or intellectual disability

242.            This clause is modelled on section 20BQ of the Crimes Act 1914 .  It applies where the Military Court finds that the accused person is suffering from a mental illness or an intellectual disability, and that it would be more appropriate to deal with the person otherwise than in accordance with law.  Paragraph 96(1)(c) gives the Military Court power to order that the charge be dismissed and the accused person be discharged: into the care of a responsible person (unconditionally or subject to conditions) for a specified period that does not exceed 3 years; or on the condition that the accused person undergo an assessment of his or her mental condition, treatment or both, for a period that does not exceed 3 years; or unconditionally.  

243.            The Military Court also has the power, under paragraph 96(1)(d), to: adjourn the proceedings; grant the accused person bail under [Division 2 of Part 6]; and make any other order that the Military Court considers appropriate.

244.            Subclause (2) provides that proceedings against the accused person in respect of the service offence are stayed when the Military Court makes an order under paragraph 96(1)(c).

245.            Subclause (3) provides that, where the Military Court makes an order under subclause (1), it cannot make any orders restitution or reparation orders (clauses 151 and 152), or order that the accused person be discharged without conviction or released on condition after being convicted (sections 19B and 20 of the Crimes Act 1914 ).

Clause 93 - Means by which court may be informed

246.            This clause is modelled on section 20BR of the Crimes Act 1914 .  It provides that, for the purposes of this Division, the Military Court may inform itself as it thinks fit but not so as to require the person charged to incriminate himself or herself. 

Part 6 - Appellate jurisdiction of the Military Court

247.            Part 6 of the Bill establishes the appellate jurisdiction of the Military Court.  This Part is modelled on Division 2A of Part III of the Federal Court of Australia Act 1976 . Division 2 of Part 6 deals with appeals from decisions of the Military Court at first instance.  Division 3 of Part 6 sets out the powers which the Military Court has in the exercise of its appellate jurisdiction.

Division 1 - Introduction

Clause 94 - Guide to this Part

248.            This clause sets out a guide to Part 6 of the Bill.

Division 2 - Bringing appeals

Clause 95 - Allowable appeals

249.            This clause provides that the Military Court has jurisdiction to hear and determine appeals from judgments or decisions of the Military Court constituted by a single Judge or a Federal Magistrate exercising the original jurisdiction of the Military Court.  The Court’s original jurisdiction may be exercised by Federal Magistrates in the General Division or Judges in the Appellate and Superior Division (clause 63).

250.            This clause also provides that the Military Court has jurisdiction to hear and determine appeals from judgments of the Military Court under Part 8 (which deals with custody and bail).  This may include appeals from orders of the Military Court for the forfeiture of securities provided for an accused person’s bail (clause 95).

Clause 96 - Leave to appeal

251.            This clause is modelled on section 30AB of the Federal Court of Australia Act 1976 .  It provides that an appeal cannot be brought from a decision of the Military Court at first instance unless the Full Court or a Judge gives leave to appeal or the appeal involves a question of law alone or relates to bail.

252.            The requirement for leave to appeal is designed to ensure that the time of the Military Court is devoted to consideration of meritorious appeals.  An appeal that involves a question of law alone does not normally take as long to resolve as one that requires the Military Court to consider matters of fact and to review evidence.

Clause 97 - Who may appeal

253.            This clause is modelled on section 30AC of the Federal Court of Australia Act 1976 .  It provides that, with one exception, either the accused person or the Director of Military Prosecutions can apply for leave to appeal or bring an appeal, as appropriate.  The exception, under subclause (2), is that only the accused person can appeal, or apply for leave to appeal, against an acquittal on grounds of mental illness.

Clause 98 - Time for appealing

254.            This clause is modelled on section 30AF of the Federal Court of Australia Act 1976 .  It sets the time limits in which a notice of appeal or an application for leave to appeal must be filed.

255.            The basic principle is that a party has 28 days in which to apply for leave to appeal, or to appeal if they do not need leave.  However, in the case of appeal against conviction, the effect of subclause (1) is that the 28 days does not start running until the accused person is sentenced.  This recognises that an accused person who has been convicted may want to focus on the sentencing proceedings before they focus on whether there are grounds to appeal against conviction.  In the case of an appeal against acquittal, in the limited cases where an appeal is possible, the 28 days starts running from the day the accused person is discharged.  Where the appeal is in relation to bail or an interlocutory judgment, the 28 days starts running from the day the judgment or decision was made.

256.            Subclause (2) gives the Military Court power to extend time if it is satisfied that it is in the interests of justice to do so.

Clause 99 - Exercise of appellate jurisdiction

257.            This clause is modelled on section 30AE of the Federal Court of Australia Act 1976 .  Subclause (1) provides t hat an appeal from a judgment or decision of a single Judge must be heard by a Full Court .  Subclause (2) provides that an appeal from a judgment or decision of a single Federal Magistrate must be heard by a Full Court or, if the Chief Justice considers it appropriate, a single Judge.

258.            Subclause (4) applies to an application for leave to appeal, an extension of time to appeal, leave to amend grounds of appeal or for the stay of an order made by a Federal Magistrate.  Any of these applications must be heard and determined by a single Judge unless the Judge directs that the application be heard and determined by a Full Court; or the application is made in a proceeding that has already been assigned to a Full Court, and the Full Court considers it is appropriate for it to hear and determine the application.

259.            Subclause (5) deals with applications for a range of ancillary orders including a order to join or remove a party to an appeal; a consent order disposing of an appeal; an order that an appeal be dismissed for want of prosecution or failure to comply with a direction of the Court; or an order for directions about the conduct of an appeal.  Subclause (6) provides that any of these applications must be heard and determined by a single Judge unless the Judge directs that the application be heard and determined by a Full Court; or the application is made in a proceeding that has already been assigned to a Full Court, and the Full Court considers it is appropriate for it to hear and determine the application.

260.            Subclause (7) provides that the Rules may make provision enabling applications to be dealt with without an oral hearing, either with or without the consent of the parties.

Clause 100 - Stay of proceedings and suspension of orders

261.            This clause is modelled on section 30AK of the Federal Court of Australia Act 1976 .  Subclause (1) gives power to the Military Court to make an order to stay or otherwise affect the operation or implementation of an order arising from a decision which is the subject of an appeal.  The order can be made on such conditions, if any, as the Military Court thinks fit.

262.            Subclause (2) makes it clear that this clause does not affect the operation of any other Act or the Military Court Rules in relation to the stay or suspension of orders.

Clause 101 - Right to attend

263.            This clause is modelled on section 30AG of the Federal Court of Australia Act 1976 .  It gives a party to an appeal, including the accused person, a right to be present at the hearing of the appeal unless the Military Court orders otherwise; or the Military Court directs or allows the party to appear by way of video link, audio link or other appropriate means.  This clause recognises that there may be problems in allowing an accused person to attend a court hearing in person if, for example, the appeal is an appeal against inadequate sentence and the accused person is in custody.

Clause 102 - Practice and procedure applicable to the appeal

264.            This clause is modelled on section 30AH of the Federal Court of Australia Act 1976 .  It provides that the rules of practice and procedure that apply during an appeal are those in force at the time the notice of application for leave to appeal was filed or, if there is no need for leave, those in force when the notice of appeal was filed, or those in force at another time if the Military Court so orders.

265.            The effect is that if a procedural rule changes after the appeal process has commenced, the Military Court will apply the old procedure and not the new one during the appeal unless it makes an order to the contrary.  The Military Court may make an order to the contrary if, for example, a change to a procedural rule has the potential to benefit the accused person.

266.            This clause ensures that an accused person will not suffer prejudice if changes are made to a procedural rule after the appeal process has commenced.

Clause 103 - Evidence on appeal

267.            This clause is modelled on section 30AI of the Federal Court of Australia Act 1976 .  Subclause (1) provides that, when considering an appeal, the Military Court must have regard to the evidence given in the proceedings out of which the appeal arose and may draw inferences of fact from that evidence.

268.            Subclause (1) also provides that the Military Court can receive further evidence if satisfied that it is in the interests of justice to do so and can receive that further evidence on affidavit; by video link, audio link or other appropriate means permitted under Division 5 of Part 10 or another Commonwealth law; or by oral examination before the Court or a Judge.  This does not compel the Military Court to receive further evidence in a matter.  The Military Court may decline to receive further evidence if, for example, the failure to adduce the evidence during the trial is not satisfactorily explained.

269.            Subclause (2) provides that if the Military Court decides to receive further evidence by oral examination, the Military Court can direct that the evidence be taken by a single Judge and can have regard to the findings of that Judge in relation to that evidence.

Clause 104 - Prison sentence does not include time on bail

270.            This clause is modelled on section 30AL of the Federal Court of Australia Act 1976 .  It makes it clear, for the avoidance of doubt, that if a person who has been convicted and sentenced to a term of imprisonment appeals and is released on bail pending the determination of the appeal, time spent on bail does not count as part of the term of imprisonment to which the person has been sentenced.

Division 3 - Powers of Military Court on appeal

Clause 105 - Military Court may give such judgment as is appropriate

271.            This clause is modelled on section 30BA of the Federal Court of Australia Act 1976 .  It gives the Military Court general power to dismiss or allow an appeal and to take such other action as it thinks appropriate in the circumstances when exercising its appellate jurisdiction.

272.            Clauses 107 to 109 provide examples of orders the Military Court can make when it upholds an appeal.  Those examples are included to avoid doubt that the orders which can be made do not restrict the general power of the Military Court under this clause.

Clause 106 - When to allow appeals

273.            This clause is modelled on section 30AJ of the Federal Court of Australia Act 1976 .  It sets out the criteria that must be satisfied before the Military Court can uphold different types of appeal.

Appeals against conviction

274.            Subclause (1) provides that the Military Court must allow an appeal against conviction if the Military Court is satisfied that there was a wrong decision of any question of law or that there has been a substantial miscarriage of justice.

275.            However, subclause (2) provides that the Military Court may dismiss an appeal on the first of these grounds if the Court is satisfied that there has not been a substantial miscarriage of justice.  This ensures that a conviction will not automatically be set aside purely on the basis of an error or irregularity.

Appeals against sentence

276.            Subclause (3) provides that the Military Court must allow an appeal against a judgment sentencing the accused person if the Military Court is satisfied that some other sentence (whether more or less severe) is warranted in law.  This means that the Military Court can either decrease or increase a sentence if a party appeals and the Military Court is satisfied that some other sentence was warranted in law.  The Military Court has power, in an appropriate case, to increase a sentence even if the accused person has appealed but the Director of Military Prosecutions has not.  Similarly, the Military Court has power, in an appropriate case, to decrease a sentence even if the Director of Military Prosecutions has appealed but the accused person has not.

Other appeals

277.            Subclause (4) provides that the Military Court may allow any other appeal if the Military Court is satisfied it is in the interests of justice to do so.

Clause 107 - Allowing appeals against convictions

278.            This clause is modelled on section 30BB of the Federal Court of Australia Act 1976.  It provides that, if the Military Court allows an appeal against conviction of a service offence, it can (among other things) set aside the conviction, acquit the accused person or find the accused guilty of an alternative service offence (within the meaning of section 142 of the Defence Force Discipline Act 1982 ).  The Military Court does not have to order a new trial if it allows an appeal against conviction.

Clause 108 - Allowing appeals against sentences

279.            This clause is modelled on section 30BC of the Federal Court of Australia Act 1976 .  It provides that, if the Military Court allows an appeal against sentence it can (among other things) increase or decrease the sentence or substitute a different sentence.

Clause 109 - Allowing appeals against bail, bail forfeiture or interlocutory judgments and decisions (including about custody)

280.            This clause is modelled on section 30BG of the Federal Court of Australia Act 1976 .  It applies if the Military Court allows an appeal against a judgment in relation to bail, bail forfeiture or against an interlocutory judgment (including about custody).  If the Military Court allows the appeal it can (among other things) set aside the judgment or decision, vary the appealed decision, substitute a new judgment or decision, or make orders about custody or bail.  A bail judgment can be varied by, for example, imposing, removing or varying conditions on which bail was granted.

Clause 110 - New trials

281.            This clause is modelled on section 30 of the Federal Court of Australia Act 1976 .  It gives the Military Court, when granting a new trial on appeal, power to impose such conditions on a party, and direct such admissions to be made by a party, for the purpose of the new trial as are just.

282.            Subclause (2) specifies that, if the Military Court grants a new trial, it may do so either generally or on particular issues only, as it thinks just, and may order that evidence of a witness examined at the former trial may be used in the new trial in the manner provided in the order.

Division 4 - Other matters

Clause 111 - Cases stated and questions reserved

283.            This clause is modelled on section 26 of the Federal Court of Australia Act 1976 .  Subclause (1) gives a single Judge or a Federal Magistrate of the Military Court the power to state any case or reserve any question concerning a matter for the consideration of a Full Court.  The matter must be one with respect to which an appeal would lie to the Military Court. 

284.            Subclause (2) gives the Full Court jurisdiction to hear and determine the case or question.

Clause 112 - Questions referred after trial

285.            This clause is modelled on section 30CB of the Federal Court of Australia Act 1976 .  It gives the Director of Military Prosecutions power to bring a precedent appeal where an accused person has been acquitted on the basis of a ruling of law which the Director of Military Prosecutions wants to test on appeal.  The Full Court has jurisdiction to hear the appeal, and rule on the legal issue.  The ruling will not affect the person’s acquittal but will clarify the legal issue for future cases.  In Mellifont v Attorney-General (Qld) (1991) 173 CLR 289, the High Court held that there is no Constitutional impediment to a federal court hearing a precedent appeal despite the fact that the outcome of the appeal will not affect the position of the acquitted person.

286.            Subclause (1) provides that the Director of Military Prosecutions may apply to the Military Court for leave to refer a question of law to a Full Court for its determination if a judgment of the Military Court acquits a person following a trial for a service offence.

287.            Subclause (2) provides that, if leave is granted, both the Director of Military Prosecutions and the acquitted person may make submissions to the Full Court.  In some cases, the acquitted person may take no interest in the proceedings but in others the person may want to make submissions because they consider that the rulings made at the trial were correct.

288.            Subclause (3) makes it clear that a determination made by the Military Court on the question of law does not affect the person’s acquittal.

289.            Subclause (4) provides that the Military Court may make orders to ensure each party to the proceedings under this clause is adequately represented in those proceedings.  This subclause has effect despite clause 56, which deals with costs.  The Military Court could, for example, decline to deal with a referred question until arrangements have been made to meet the legal costs of an acquitted person who wants to make submissions but who is impecunious.

Part 7 - Appeals to the High Court

Clause 113 - Appeals to the High Court

290.            This clause is modelled on section 33 of the Federal Court of Australia Act 1976 .  Subclause (1) prevents appeals to the High Court from a judgment of a single Judge or Federal Magistrate of the Military Court in its original jurisdiction.  Those appeals may be heard by the Full Court or a Judge of the Military Court in its appellate jurisdiction

(clause 99).

291.            Subclause (2) allows appeals to the High Court from a judgment of a Full Court, either in the original or appellate jurisdiction of the Military Court (clauses 63 and 99), with special leave from the High Court. 

292.            Similarly, subclause (3) allows appeals to the High Court from a judgment of a single Judge exercising the appellate jurisdiction of the Military Court, with special leave from the High Court. 

293.            Subclause (4) prevents appeals to the High Court from judgments of a Full Court of the Military Court exercising the original jurisdiction of the Military Court, if the judgment is a decision to join or remove a party or to adjourn, expedite or vacate a hearing date or not to do any of those things.

294.            Subclause (5) prevents appeals to the High Court from a judgment of the Military Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate jurisdiction, in relation to a range of determinations, decisions and orders specified in paragraphs (a) to (h).

295.            Subclause (6) makes clear that, for the avoidance of doubt, a party may appeal from a final judgment in proceedings before the Military Court on the basis of an interlocutory judgment of the Military Court made in the proceeding, even if there has been or can be no appeal to the High Court from that interlocutory judgment.  It also clarifies that the High Court may take account of the interlocutory judgment in determining the appeal or an application for special leave to appeal from the final judgment.

296.            Where an appeal from the Military Court is brought to the High Court, the jurisdiction of the High Court in this regard is to be exercised by a Full Court consisting of not less than 3 Justices (subclause (7)).

297.            The restricted nature of appeals to the High Court emphasises the role that the Military Court will have as the exponent of military law.

Part 8 - Custody and bail

298.            The Military Court will have powers to remand an accused person in custody, make recognizance orders and grant bail from the point when an accused person first appears before the Military Court.  The majority of this Part of the Bill is modelled on Part VIB of the Federal Court of Australia Act 1976 .

299.            There is no provision for the Military Court to make an order dispensing with bail.  That can be done under the laws of some Australian jurisdictions but the same result can be reached by the Military Court granting bail but not imposing conditions other than a condition to appear.

Division 1 - Introduction

Clause 114 - Guide to this Part

300.            This clause sets out a guide to Part 8 of the Bill.

Division 2 - Custodial matters

Clause 115 - Arrangements for accused person if proceeding adjourned

301.            This clause is modelled on section 15 of the Crimes Act 1914 .  It gives the Military Court power to remand an accused person in custody for such period as the Military Court considers necessary, where a proceeding in respect of a charge of a service offence is adjourned for more than one day.  That can be done if there is no bail order or, if there is a bail order, the accused person cannot be released on bail by operation of clause 120 (bail undertakings).  If an accused person is remanded in custody it must be by way of a warrant. 

302.            The Military Court also has the power to order the discharge of the accused person upon his or her entering into a recognisance conditioned for his or her appearance at the time and place appointed for continuing the proceeding.

Division 3 - Granting bail

Clause 116 - Applying for bail

303.            This clause is modelled on section 58DA of the Federal Court of Australia Act 1976 .  Subclause (1) provides that at any stage during a proceeding in respect of the charge of a service offence, the accused person can apply to the Military Court for bail.

304.            Subclause (2) provides that if the Military Court refuses to grant bail to the accused person for a service offence, the accused cannot apply again for bail for the service offence unless there has been a significant change in circumstances since the refusal.  This means that an accused person who is not satisfied with a decision refusing bail can appeal against that decision but cannot make a fresh application for bail unless there has been a significant change in circumstances since the refusal.

Clause 117 - Granting bail

305.            This clause is modelled on section 58DB of the Federal Court of Australia Act 1976 .  Subclause (1) gives the Military Court power, by order, to grant bail to the accused person for one or more of service offence.  A bail order will normally be for a period specified in the order.  It may, for example, require the accused person to appear before the Military Court on a specified day or on the occurrence of a specified event such as the day notified by the Military Court as the day when a trial has been listed to commence.

306.            Subclause (2) sets out certain matters which the Military Court must consider when deciding whether to grant bail.  This is in addition to the matters set out in section 15AB of the Crimes Act 1914 , which the Military Court must also take into account in this regard.  The relevant matters set out in this Act are:

·                 whether the accused person will appear in court if bail is granted;

·                 the interests of the accused person;

·                 the protection of any other person;

·                 the protection and welfare of the community, including whether there is a risk that the accused person will commit offences if bail were granted;

·                 whether there is a risk that the accused person will approach witnesses or attempt to destroy evidence; and

·                 the service requirements of the Australian Defence Force.

Clause 118 - Bail may be granted subject to conditions

307.            This clause is modelled on section 58DC of the Federal Court of Australia Act 1976 .  Subclause (1) provides that a bail order may be made unconditionally or subject to one or more specified conditions.

308.            Subclause (2) sets out a non-exclusive list of conditions that can be imposed.  They are:

·                 the accused person reside at a specified place;

·                 the accused person report to a specified person at a specified place at a specified time or times;

·                 the accused person surrender any passport held by the accused and agree not to approach a point of international departure;

·                 the accused person provide security in the form of money, or other property, for forfeiture if the accused fails to appear before the Military Court in accordance with the accused’s bail undertaking;

·                 one or more other specified persons provide security in the form of money, or other property, for forfeiture if the accused person fails to appear before the Military Court in accordance with the accused’s bail undertaking.

309.            Subclause (3) provides that money or other property deposited with the Military Court or otherwise provided as security must be dealt with by the Military Court in accordance with the Military Court Rules.

Clause 119 - Bail to be stayed pending appeal

310.            This clause is modelled on section 58DD of the Federal Court of Australia Act 1976 .  Subclause (1) applies if the Military Court makes a bail order and the Director of Military Prosecutions requests the Military Court to stay the bail order pending appeal.  The Military Court must stay the bail order and order that the accused person be remanded in custody.  The order will cease to operate, and the accused person can be released on bail, if the Director of Military Prosecutions fails to file a notice of appeal within 48 hours.  Otherwise, unless set aside, the order will remain in force until the appeal is finally disposed of.

311.            This provision ensures that there is a mechanism under which the status quo can be preserved if there is a flight risk and there is a genuine question about whether bail should have been granted.  The Director of Military Prosecutions is likely to use this provision sparingly.

312.            Subclause (5) provides that an order under subclause (4) may be signed by any Judge or Federal Magistrate, the Registrar or any Deputy Registrar of the Military Court.

Clause 120 - Bail undertakings etc.

313.            This clause is modelled on section 58DE of the Federal Court of Australia Act 1976 .  Subclause (1) provides, for the avoidance of doubt, that if the Military Court grants bail to the accused person, the accused can only be released on bail if the accused has signed a bail undertaking in the required form, any third party surety has signed an undertaking in the required form and any security that is required to be deposited has been deposited.

314.            Subclause (2) sets out the things that must be included in a bail undertaking given by an accused person.  They are:

·                 an undertaking by the accused person to appear in person before the Military Court in accordance with the bail order and to promptly notify the Military Court if the accused person changes his or her residential address; and

·                 an undertaking by the accused person to comply with the specified conditions, if any, on which bail has been granted.

315.            Subclause (3) provides that a bail undertaking, and any third party security undertaking, must be expressed to cover the period for which bail was granted and each period for which bail may be continued.  The second part of this provision ensures that, if bail is continued, all relevant undertakings will continue in force even if one or more of them is expressed to apply for a limited time and that time has expired.

316.            Subclause (4) provides that the Registrar must cause the parties to be given a copy of the accused person’s bail undertaking and any third party security undertaking made in relation to the accused’s bail.  This provision resolves any doubt about whether the Director of Military Prosecutions is entitled to a copy of the relevant undertakings.

Clause 121 - Effect of granting bail

317.            This clause is modelled on section 58DF of the Federal Court of Australia Act 1976 .  Subclause (1) provides that if an accused person is released on bail under Part 6, the accused person is entitled to be at liberty in respect of the service offence in accordance with the accused’s bail undertaking.  However, this does mean the accused person must be released if he or she is being held in custody for some other service offence.

318.            Subclause (2) notes that subclause (1) is subject to a stay under clause 119.  If an order is made under clause 119 that stays a bail order pending appeal, the accused person is not entitled to be released on bail while that order is in force.

Clause 122 - Seeking discharge from undertaking to give security

319.            This clause is modelled on section 58DG of the Federal Court of Australia Act 1976 .  Subclause (1) gives a person who has provided a third party security undertaking the right to apply to the Military Court to be discharged from liability under the undertaking.

320.            Subclause (2) provides that, if there is an application and the accused person has not already failed to appear before the Military Court in accordance with the accused person’s bail undertaking, the Military Court must direct that the person be discharged from his or her liability, unless satisfied it would be contrary to the interests of justice to do so.  This reflects the fact that a person who has provided a third party security undertaking should normally be able to withdraw it if, for example, they are no longer confident that the accused person will answer bail.

321.            If the accused person has already failed to appear before the Military Court in accordance with the accused’s bail undertaking, it will be too late for third party to apply to be released from their security.

322.            If the Military Court releases a third party from their security this will trigger a reconsideration of the accused person’s bail under Division 3, in which event the accused must be brought before the Military Court.

Clause 123 - Dealings with property given as security for bail

323.            This clause is modelled on section 58DH of the Federal Court of Australia Act 1976 .  This clause makes it an offence for a person who has signed a bail undertaking or a third party security undertaking, and who has undertaken to forfeit security other than money if the accused person does not appear before the Military Court, to dispose of or otherwise deal with that security with the intention of preventing the forfeiture of the security, or to destroy the security, or to reduce its value.  The maximum penalty is imprisonment for 2 years.

Division 4 - Reconsidering bail orders

Clause 124 - Reconsidering bail—discharge of security or accused person fails to comply with bail undertaking

324.            This clause is modelled on section 58EA of the Federal Court of Australia Act 1976 .  It applies if the Military Court gives a direction that releases a third party from a security undertaking or if the Director of Military Prosecutions applies for a bail order to be varied or revoked on the basis that the accused person has failed to comply with a bail undertaking.

325.            Subclause (2) provides that the Military Court must cause the accused person to be brought before the Military Court in accordance with the Military Court Rules.

326.            In a case where the accused person failed to appear before the Military Court in accordance with the accused’s bail undertaking, the Director of Military Prosecutions may also be able to commence forfeiture proceedings under clause 128.

327.            Subclause (3) gives the Military Court power to vary or revoke the bail order.

328.            Subclause (4) requires that, in deciding whether to vary or revoke the bail order, the Military Court must consider the matters set out in subclause 118(2).  This means that, if the Court is deciding whether to vary or revoke bail, it must consider the same matters it would be required to consider if it was deciding whether to grant bail.

Clause 125 - Reconsidering bail—change in circumstances

329.            This clause is modelled on section 58EB of the Federal Court of Australia Act 1976 .  Subclause (1) gives the Military Court power to vary or revoke an accused person’s bail order if the Military Court is satisfied that there has been a sufficient change in circumstances since the making of the bail order.  The Military Court must consider the matters set out in subclause 118(2).  This means that, if the Military Court is deciding whether to vary or revoke bail, it must consider the same matters it would be required to consider if it was deciding whether to grant bail.

330.            Subclause (2) gives the Military Court power to refuse to hear an application for an order to vary or revoke bail without a hearing if the Military Court is satisfied that the application is frivolous or vexatious.  That may be the case if, for example, an accused person who has been granted bail but is dissatisfied with the conditions of bail makes repeated applications for an order varying the conditions which the Military Court is satisfied is unlikely to succeed.

Clause 126 - Consequences if bail is varied or revoked

331.            This clause is modelled on section 58EC of the Federal Court of Australia Act 1976 .  Subclause (1) provides, for the avoidance of doubt, that if the Military Court varies the accused person’s bail, the accused can only be released on bail if the accused has signed a new bail undertaking in the required form, any third party surety has signed a new undertaking in the required form and any security that is required to be deposited has been deposited.  Subclause (1) would not require someone to sign a new security undertaking if, under the order as varied, it is no longer a condition of bail for that person to provide security.

332.            Subclause (2) provides that if the Military Court revokes the accused person’s bail, the Military Court has power to cause the accused to be committed to prison in accordance with the Military Court Rules.

Division 5 - Further consequences if accused person fails to appear in accordance with bail undertaking

Clause 127 - Offence for failing to appear before the Military Court

333.            This clause is modelled on section 58FA of the Federal Court of Australia Act 1976 .  It makes it an offence for an accused person to give the Military Court a bail undertaking and subsequently fail to appear before the Military Court in accordance with the bail undertaking.  The maximum penalty is imprisonment for 2 years.  If an accused person fails to answer bail, their bail will also potentially be reconsidered under Division 3.

334.            Part 2.3 of the Criminal Code Act 1995 provides defences which may apply to a person who fails to appear before the Military Court in accordance with a bail undertaking.  A defendant bears an evidential burden in relation to those defences.  It is appropriate to apply all the defences under Part 2.3. of the Criminal Code Act 1995 in these circumstances because of the potential range of reasons why a person might fail to answer bail.  It is not possible to foresee all the reasons that might arise or to predict which of those reasons might turn out, on examination, to provide a valid reason for not answering bail.

335.            It will not be an offence against this clause for an accused person to breach any other condition of bail other than the requirement to appear before the Military Court when required to do so under a bail undertaking.

Clause 128 - Notice of proposed forfeiture

336.            This clause is modelled on section 58FB of the Federal Court of Australia Act 1976 .  It applies if the Director of Military Prosecutions alleges that an accused person failed to appear before the Military Court in accordance with the accused’s bail undertaking and bail security has been given in the matter.  Subclause (1) gives the Director of Military Prosecutions power to apply to the Military Court for a direction that the Registrar give one or more notices inviting a person to show cause why a security should not be forfeited.

337.            Subclause (2) provides that the Military Court may direct the Registrar to give a notice to each person who provided security for the accused person’s bail and any other person who the Military Court considers may have an interest in security provided for the accused’s bail.  However, a failure to give notice to a person does not invalidate a forfeiture order if the Registrar made reasonable efforts to serve notice.

338.            Subclause (3) provides that the notice must invite the person to show cause, by filing an objection, why the security should not be forfeited and must contain the particulars set out in the Military Court Rules.  Presumptions about when things have been served are set out in section 29 of the Acts Interpretation Act 1901 and section 160 of the Evidence Act 1995 , depending on what type of post is used.  There are also provisions dealing with the service of documents in section 28A of the Acts Interpretation Act 1901 .

339.            Subclause (4) provides that an application under subclause (1) cannot be made more than 6 months after the alleged failure to appear before the Military Court.  This means that, if the Director of Military Prosecutions wants to apply for a forfeiture order on the basis of an alleged failure to answer bail, the proceedings must commence within 6 months.

Clause 129 - Ordering forfeiture

340.            This clause is modelled on section 58FC of the Federal Court of Australia Act 1976 .  Subclause (1) provides that the Military Court must order the forfeiture of all specified security provided by a particular person for the accused person’s bail if the Military Court is satisfied that the accused failed to appear before the Military Court in accordance with the accused person’s bail undertaking.

341.            However, under subclause (2) the Military Court may decide not to make a forfeiture order or reduce the amount of the security to be forfeited if satisfied that the accused person had a reasonable excuse for failing to appear or it is in the interests of justice to do so.  The burden of proving these matters, to the civil standard of proof, will rest on the person contesting forfeiture.

342.            Subclause (3) requires that, in deciding whether to make a forfeiture order, the Military Court must consider any objection filed by a person who the Military Court is satisfied either provided security for the accused person’s bail or has an interest in such security, provided the objection was filed within 28 days after the person was given a notice under clause 128 or, if the person was not given notice, within 28 days of a notice being given to any person under clause 128.  The objection must contain the particulars set out in the Military Court Rules.

343.            The Military Court may also invite a person who filed an objection to make submissions before deciding whether to make a forfeiture order.

344.            If more than one person has provided a bail security, the Military Court will need to make separate forfeiture orders.

345.            The Military Court is likely to make a forfeiture order unless an objector can identify good reasons why one should not be made.  Bail securities will tend to lose value if the Military Court routinely declines to order forfeiture when an accused person has failed to answer bail.

346.            A dissatisfied party can appeal against a forfeiture order, or a refusal to make one, under clause 95.

Clause 130 - When forfeiture orders take effect

347.            This clause is modelled on section 58FD of the Federal Court of Australia Act 1976 .  Subclauses (1) and (2) have the effect that, unless it is set aside on appeal, a forfeiture order takes effect at the end of the time for filing a notice of appeal under clause 98 or, if there is an appeal, when the appeal is finally disposed of.  If a forfeiture order is varied on appeal, it will take effect as varied.

348.            Subclause (3) provides that if a forfeiture order takes effect, the Registrar must give written notice that it has taken effect to the person who provided the security forfeited by the order and each other person, if any, who objected to the making of the order in relation to that security.

Clause 131 - Effect of forfeiture orders

349.            This clause is modelled on section 58FE of the Federal Court of Australia Act 1976 .

Security is money held by the Military Court or property other than registrable property

350.            Subclause (1) applies if security specified in a forfeiture order is money deposited with the Military Court or otherwise provided to the Military Court or is property which is not money or registrable property.  In such cases, the security vests absolutely in the Commonwealth at the time the order takes effect.

Security is money not held by the Military Court

351.            Subclause (2) applies if security specified in a forfeiture order is an amount of money that has not been deposited with or otherwise provided to the Military Court.  In such cases, the amount is taken to be a civil debt payable by the person who provided the security to the Commonwealth at the time the order takes effect.  The Commonwealth may enforce the forfeiture order as if it were an order made in civil proceedings against the provider to recover a debt due by the provider and the debt arising from the order is taken to be a judgment debt.  If the undertaking also specified property to secure payment of the amount, the Commonwealth may also enforce the undertaking in respect of that property.

Security is registrable property

352.            Subclause (3) applies if the security specified in a forfeiture order is registrable property.  In such cases, the property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with.  The Director of Military Prosecutions may, on behalf of the Commonwealth, do anything necessary or convenient to give notice of, or otherwise protect, the Commonwealth’s equitable interest in the property, for example, registering a caveat.  The Commonwealth is entitled to be registered as the owner of that property and the Military Court may, by order, authorise a person to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as the owner.

353.            Subclause (4) makes it clear that an order under subclause (3) can authorise a person to execute any instrument required to be executed by a person transferring an interest in registrable property.

Meaning of registrable property

354.            Subclause (5) defines “registrable property” for the purpose of the clause.  It means property, title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory.

Division 6 - When bail ends

Clause 132 - Continuing bail orders

355.            This clause is modelled on section 58GA of the Federal Court of Australia Act 1976 .  Subclause (1) gives the Military Court power to direct that a bail order previously granted continues to have effect.  This is an alternative to requiring an accused person to make a fresh bail application if the accused has answered bail and the Director of Military Prosecutions does not oppose a continuation of bail.

356.            A direction that bail continues will normally specify a period for which bail continues.

357.            Under subclause 121(3), a bail undertaking, and any third party security undertaking, must be expressed to cover the period for which bail was granted and each period for which bail may be continued under subclause (1).

358.            Subclause (2) applies if an accused person appears in accordance with a bail undertaking and the matter is not completed but the Military Court makes no order as to bail.  The Military Court is taken to have made a direction under subclause (1) that the bail order continue to have effect until the accused person’s next scheduled appearance before the Military Court.

359.            This ensures that there is no gap in bail if, either deliberately or through error, the Military Court fails to make an order for bail.  Otherwise the accused person may have no right to be at liberty and may be at risk of arrest.

360.            Subclause (3) provides that, if the Military Court gives a direction for bail to continue, each of the following continues to have effect, subject to any contrary intention in the undertaking and to any variation ordered by the Military Court:

·       the accused person’s bail undertaking; and

·       each third party security undertaking made in relation to the accused person’s bail.

Clause 133 - Bail discharged if the Military Court discharges the accused

361.            This clause is modelled on section 58GB of the Federal Court of Australia Act 1976 .  It provides that a bail order ceases to have effect if the Military Court discharges the accused person in relation to all the service offences for which bail was granted.  There is no need in such cases for the Military Court to formally release the accused person from the bail conditions.

Clause 134 - Continuing security undertakings when bail ends

362.            This clause is modelled on section 58GC of the Federal Court of Australia Act 1976 .  It applies if security was provided for the accused person’s bail and the accused’s bail order is revoked under clause 124 because of a failure by the accused person to appear in accordance with the accused’s bail undertaking.

363.            Subclause (2) provides that, despite the revocation, the accused person’s bail undertaking and each third party security undertaking made in relation to the accused’s bail continue to have effect to the extent to which they relate to the security provided for the accused person’s bail.  This provision is needed to ensure that a bail security does not lapse the moment bail is revoked but remains in force for the time needed to resolve whether the security should be forfeited.

364.            Subclause (3) provides that the continuation of an undertaking to provide security ceases if a forfeiture order cannot take effect in relation to the security and the accused person’s failure to appear, or the Military Court orders the continuation to cease.

365.            A forfeiture order cannot be made unless an application is made within 6 months of the relevant breach of bail (subclause 128(4)).  Clause 130 sets out when a forfeiture order takes effect.

Clause 135 - Returning security when bail ends

366.            This clause is modelled on section 58GD of the Federal Court of Australia Act 1976 .  It provides that the Military Court must return a security which has been lodged with the Military Court if the accused person’s bail order ceases to have effect and the security is not still in force through the operation of subclause 134(3).  This does not apply if the security has been forfeited under Division 4 or is being held as security in relation to another bail order.

Division 7 - Other matters

Clause 136 - Admissibility of certain matters

367.            This clause is modelled on section 58HA of the Federal Court of Australia Act 1976 .  It facilitates the proof of certain formal matters relating to bail.  The provisions apply to proceedings in all courts and proceedings including criminal proceedings for offences relating to bail and proceedings for the forfeiture of security.

368.            Subclause (1) makes the following documents admissible as prima facie evidence of their contents:

·       a bail order;

·       a bail undertaking;

·       a third party security undertaking; and

·       a notice about change of address given by the accused person to the Military Court.

369.            Subclause (2) has the effect that a document referred to in subclause (1) can be proved by tendering a copy of the document certified by an officer of the Military Court without further proof or production of the original.  A certified copy is to be received in all courts and proceedings as prima facie evidence of the original’s contents. 

370.            Subclause (3) has the effect that the following matters can be proved on the basis of a written certificate issued by an officer of the Military Court:

·       a condition specified in a bail order has not been varied or has been varied in a specified way;

·       a notice was given under subclause 132(2) to a specified person in a specified way on a specified day;

·       an accused person did not appear in person before the Military Court at a specified place or on a specified day or during a specified period;

·       the accused person did not notify the Military Court of a change in the accused’s residential address; and

·       the accused person notified the Military Court of a change in the accused’s residential address to a specified address and on a specified day.

371.            Subclause (4) provides that a certificate under subclause (3) is to be received in all courts and proceedings as prima facie evidence of the statements in the certificate.

372.            Subclause (5) provides that a document purporting to be a certificate under subclause (3) is taken to be such a certificate and to have been duly given, unless the contrary is established.

Clause 137 - Indemnifying a person providing security

373.            This clause is modelled on section 58HB of the Federal Court of Australia Act 1976 .  Subclause (1) makes it an offence for a person who has provided security as a condition of bail, either as an accused person or as a third party, to agree to be indemnified by another person against any forfeiture of that security.  The maximum penalty is imprisonment for 2 years.

374.            Subclause (2) makes it an offence for a person to agree to indemnify another person against any forfeiture of security provided by that other person as a condition of bail.  The maximum penalty is imprisonment for 2 years.

Part 9 - Sentencing and punishment

375.            Part 9 of the Bill deals with the sentences and punishments that may be imposed by the Military Court on a person convicted of a service offence.  This Part is modelled on Part IV of the Defence Force Discipline Act 1982 .  This will allow consistency in sentencing and the punishment of service offences across proceedings in the Military Court and service tribunals.

Division 1 - Introduction

Clause 138 - Guide to this Part

376.            This clause sets out a guide to Part 9 of the Bill.

Division 2 - Sentencing principles

Clause 139 - Sentencing principles

377.            This clause applies section 70 of the Defence Force Discipline Act 1982 (other than subsection 70(5) of that Act) in relation to the conviction of a person by the Military Court.  It allows the necessary substitution of references in that section to a service tribunal for references to the Military Court.  This means that the Military Court will use the same principles of sentencing as those applicable in proceedings before a service tribunal under the Defence Force Discipline Act 1982 .  This will allow consistency in sentencing of service offences across proceedings in the Military Court and service tribunals.

Division 3 - Punishments

Clause 140 - Kinds of punishments that may be imposed

378.            This clause is modelled on section 68 and Schedule 2 to the Defence Force Discipline Act 1982 .  Subclause (1) provides that the Military Court may (subject to this Division) impose one or more punishments on a person who is convicted by the Military Court of a service offence.

379.            Subclauses (2) and (3) set out, in decreasing order of severity, the punishments that may be imposed by the Military Court on an officer of the Australian Defence Force and other members of the Australian Defence Force. These include life imprisonment, imprisonment for a specified period, dismissal, reduction in rank, forfeiture of seniority and a fine not exceeding 28 days pay.  Subclause (2) provides that an officer can also receive the punishment of forfeiture of service for the purposes of promotion.  Subclause (3) confirms that, while a member of the Australian Defence Force (other than an officer) cannot receive a punishment of forfeiture of service, they can receive the punishment of detention for a period not exceeding 2 years.

380.            Subclause (4) sets out, in decreasing order of severity, the punishments that may be imposed by the Military Court on a person who is not a member of the Australian Defence Force who is convicted of a service offence.

381.            Subclause (5) provides that the Military Court cannot impose a punishment or a kind of punishment on a person who is convicted by the Military Court in respect of a service offence that is more severe than the most severe kind of punishment specified in the provision creating that service offence.  This subclause is modelled on section 69 of the Defence Force Discipline Act 1982 .  It is intended to clarify that, despite the ability of the Military Court under this clause to impose kinds of punishments other than the kind of punishment specified as the maximum punishment in the provision creating the service offence, the Military Court cannot exceed that maximum punishment.  For example, in respect of a service offence with a maximum punishment of 2 years imprisonment, the Military Court may impose one or more less severe punishments, such as detention, reduction in rank or a fine.  But if the Military Court imposes imprisonment, either in addition to another punishment of a different kind or as the sole punishment, the sentence of imprisonment must not exceed the maximum period of 2 years.  Similarly, despite the maximum fine specified in paragraphs (2)(g), (3)(g) and (4)(c), if the maximum fine for a service offence (either specified in the provision creating the service offence or calculated under section 4B of the Crimes Act 1914 ) is lower than as provided in this clause, the lower punishment is to apply.         

382.            Subclause (6) applies subsection 68(2) of the Defence Force Discipline Act 1982 in relation to punishments imposed by the Military Court.  That subsection provides for rules to be made, by legislative instrument, with respect to the consequences for a member of the Australian Defence Force that flow from the imposition of certain punishments.  The same consequences, as set out in those rules, will also apply to Australian Defence Force members in relation to punishments imposed by the Military Court.

Clause 141 - Restrictions on power to impose punishments

383.            This clause is modelled on section 71 of the Defence Force Discipline Act 1982 .  Subclause (1) applies where the Military Court imposes a punishment of imprisonment on a member of the Australian Defence Force who is convicted by the Military Court of a service offence.  It has the effect of requiring the Military Court to also impose (in respect of that conviction of the member) the punishment of dismissal from the Australian Defence Force

384.            Subclause (2) applies where the Military Court imposes a punishment of detention on a non-commissioned officer of the Australian Defence Force who is convicted by the Military Court of a service offence.  It has the effect of requiring the Military Court to impose (in respect of that conviction of the non-commissioned officer) the punishment of reduction in rank to a rank below non-commissioned rank.

385.            Subclause (3) provides that the Military Court must not impose a sentence of imprisonment on a person who is convicted by the Military Court of a service offence if the person was under 18 at the time of the conviction.

386.            Subclause (4) applies where the Military Court imposes a punishment of dismissal from the Australian Defence Force on a member who is convicted by the Military Court of a service offence.  It has the effect of preventing the Military Court from also imposing (in respect of that conviction or another conviction of the member) the punishment of detention on that person.

Clause 142 - Imposition of fines

387.            This clause is modelled on sections 73 and 85 of the Defence Force Discipline Act 1982 .  Subclause (1) provides that the Military Court must, when imposing a punishment of a fine, specify the amount of money that is the amount of the fine.  A fine is payable to the Commonwealth (subclause (4)).

388.            Subclause (2) applies where the Military Court convicts a person of 2 or more service offences and imposes 2 or more punishments, being or including fines.  It provides that the sum of the amounts of those fines must not exceed the amount of the most severe fine that the Military Court could impose on the person for any one of the service offences of which the person has been so convicted.

389.            The Military Court may order that a fine must be paid either in one sum or by instalments (subclause (3)).

Clause 143 - Concurrent or cumulative punishments

390.            This clause is modelled on section 74 of the Defence Force Discipline Act 1982 .  It sets out the various circumstances in which punishments imposed by the Military Court may or must be concurrent or cumulative.

Imprisonment for life and imprisonment for specific period to be concurrent

391.            Subclause (1) requires punishments of imprisonment, where one is for a specific period and the other is for life, to be concurrent.

Provisions relating to 2 or more punishments of imprisonment, or of detention, for a specific period

392.            Subclause (2) provides that the remainder of this clause applies to punishments of imprisonment or detention for a specific period.  Subclause (3) deals with various circumstances where the Military Court may impose on a person 2 or more of the same kind of these punishments (either both imprisonment or both detention, for a specific period) and empowers the Military Court to order that the punishments be cumulative.  Where the Military Court does not order that two punishments are to be cumulative, by default these punishments are to be concurrent (subclause (6)).

393.            Subclause (4) applies where the Military Court convicts of a service offence a person who is already subject to a punishment imposed by the Military Court (being a punishment that is suspended in whole or in part) and, on that conviction, revokes that suspension and also imposes another punishment of the same kind on the person.  This subclause provides that the Military Court is not to order punishments to be cumulative if this would subject the person to punishment for a period that exceeds the maximum punishment that it could impose for any of the service offences of which he or she has been convicted by the Military Court.

394.            Subclause (5) requires a punishment of detention, when imposed for a service offence committed while serving such a punishment, to be cumulative.

Clause 144 - Taking other offences into consideration

395.            This clause is modelled on section 77 of the Defence Force Discipline Act 1982 .  It allows the Military Court to take into consideration other service offences admitted by a convicted person that are similar to the service offence of which he or she has been convicted.  This is intended to avoid the necessity for a multiplicity of charges and at the same time to enable the convicted person to recommence service or civilian life on completion of sentence without threat of further prosecution.  This may be useful when there is a series of less serious service offences, for example.

396.            Subclause (1) empowers the Military Court to take other offences into consideration as described above, provided the Director of Military Prosecutions consents.

397.            Subclause (2) provides that the Military Court is not to impose a separate punishment or make a separate good behaviour order in respect of a service offence taken into consideration.  However, a restitution or reparation order may be made (clauses 152 and 153).  In addition, a service tribunal under the Defence Force Discipline Act 1982 must not impose a separate punishment or order that a conviction be recorded without punishment in respect of service offences taken into consideration by the Military Court.

398.            Subclause (3) provides that, if the Military Court does not take the service offence into consideration, the admission of the service offence is not admissible as evidence in any subsequent proceeding before the Military Court, a service tribunal or civil court in respect of that service offence or civil offence that is substantially the same.

Clause 145 - Commencement of sentences and non parole periods

399.            This clause is modelled on section 16E of the Crimes Act 1914

400.            Subclause (1) is subject to subsections (2) and (3).  It provides that the law of the Jervis Bay Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced by the Military Court for a service offence in the same way as it applies to a person who is sentenced for an offence against a law of that Territory.

401.            Subclause (2) applies where the law of the Jervis Bay Territory has the effect that a sentence imposed on a person for an offence against the law of that Territory or a non-parole period fixed in respect of that sentence may be reduced by the period that the person has been in custody for the offence, or is to commence on the day on which the person was taken into custody for the offence.  In these cases, the law applies in the same way to a sentence imposed by the Military Court on a person for a service offence or to a non-parole period fixed in respect of such a sentence.

402.            Subclause (3) applies where the law of the Jervis Bay Territory does not have the effect mentioned in subsection (2).  In this case, if the Military Court imposes a sentence on a person for a service offence or fixes a non-parole period in respect of such a sentence, it must take into account any period that the person has spent in custody in relation to the service offence.

Division 4 - Suspension of punishments

Clause 146 - Suspension of detention

403.            This clause is modelled on section 78 of the Defence Force Discipline Act 1982 .  Subclause (1) gives the Military Court power to suspend a punishment of detention.

404.            Subclause (2) deals with cases where 2 or more punishments of detention are imposed on a person and provides that either all the punishments are suspended or none are.

405.            Subclause (3) provides that, where the Military Court suspends a punishment of detention, it does not begin to run while the suspension remains in force.

Clause 147 - Suspension of fines

406.            This clause is modelled on section 79 of the Defence Force Discipline Act 1982 .  Subclause (1) gives the Military Court power to suspend a punishment of a fine (in whole or in part) on a member of the Australian Defence Force, and subclause (2) makes similar provisions for a person who is not a member.

407.            Subclause (3) provides that, where the Military Court suspends a fine or part thereof, the fine or the suspended part does not take effect while the suspension remains in force.

Clause 148 - Revocation of suspension of punishment

408.            This clause is modelled on section 80 of the Defence Force Discipline Act 1982 .  It allows the Military Court to revoke a suspension under section 146 or 147 so that the punishment that was suspended takes effect as if it had been imposed at the time of the revocation.

Division 5 - Remission of punishments

Clause 149 - Remission of suspended punishment

409.            This clause is modelled on section 81 of the Defence Force Discipline Act 1982 .  It provides for the automatic remission of suspended punishments.  Subclause (1) provides that, where a member of the Australia Defence Force who is subject to a suspended punishment ceases to be a member, the punishment is remitted.

410.            Subclause (2) provides that, where the suspension of a punishment of detention continues for 12 months or, if the sentence is for a longer period, that period, the punishment is remitted.

411.            Subclause (3) provides that, where the suspension of a fine continues for 12 months, the fine (or the suspended part of it) is remitted.

Clause 150 - Remission of punishment of detention on imprisonment

412.            This clause is modelled on section 82 of the Defence Force Discipline Act 1982 .  It provides that a punishment of detention, whether imposed by the Military Court or a service tribunal and whether suspended or not, is remitted if the convicted person is subsequently sentenced to imprisonment.

Division 6 - Restitution orders and reparation orders

Clause 151 - Restitution orders

413.            This clause is modelled on section 83 of the Defence Force Discipline Act 1982 .  It allows the Military Court, where a person is convicted of a service offence involving the theft of property, to make appropriate orders for the restoration of the property to its rightful owner.  This clause is restricted to property that is in the custody or control of the Director of Military Prosecutions because it would be inappropriate for the Military Court to be making orders about property that is in the custody or control of others.

414.            Subclause (1) deals with cases in which the property unlawfully taken has not passed into the hands of an identifiable third party.  Paragraph (a) enables the property to be given back when found in the convicted person’s possession.  Paragraph (b) enables any property obtained by conversion or exchange to be handed back to the rightful owner of the property taken.

415.            Subclause (2) deals with cases in which the property unlawfully taken has been taken in exchange by an identifiable and innocent third party.  It enables the Military Court to order that, on the third party restoring the property unlawfully taken to the rightful owner, the property taken in exchange be restored to the third party.

416.            Subclause (3) ensures that an order may be made in relation to a service offence taken into consideration under clause 144.  Such orders will lapse where the conviction, in respect of which a service offence was taken into consideration, is quashed or set aside (subclause (4)).

417.            Subclause (5) provides that an order under this clause does not prevent a person from pursuing a civil claim.

Clause 152- Reparation orders

418.            This clause is modelled on section 84 of the Defence Force Discipline Act 1982 .  It gives the Military Court power to order a convicted person to make financial reparation to a person who sustained loss or damage as a consequence of the service offence.

419.            Subclause (1) allows the Military Court to order the convicted person to pay a just amount to the person who sustained the loss or damage, whether or not a punishment is also imposed.

420.            Subclause (2) gives the Military Court the option of allowing the convicted person to pay the amount by instalments.

421.            Subclause (3) ensures that an order may be made in relation to a service offence taken into consideration under clause 144.  Such orders will lapse where the conviction, in respect of which a service offence was taken into consideration, is quashed or set aside

(subclause (4)).

422.            Subclause (4) provides that an order under this clause does not prevent a person from pursuing a civil claim.

Part 10 - Practice and procedure

423.            Part 10 of the Bill sets out the practices and procedures of the Military Court.  The majority of this Part is modelled on Part VI of the Federal Court of Australia Act 1976 .  It also incorporates certain practices and procedures in proceedings before a service tribunal under the Defence Force Discipline Act 1982 .  These will be supplemented by the Military Court Rules.  This Part will also operate in conjunction with other Acts such as the Evidence Act 1995 .

Division 1 - Introduction

Clause 153 - Guide to this Part

424.            This clause sets out a guide to Part 10 of the Bill.

Division 2 - General

Clause 154 - Practice and procedure to be in accordance with Military Court Rules

425.            This clause is modelled on section 38 of the Federal Court of Australia Act 1976 .  It provides that, subject to any provision made under this or any other Act, the practice and procedure of the Military Court is to be in accordance with the Military Court Rules.  The Rules of the High Court will apply where the Military Court Rules are insufficient to the extent they are capable of application, and subject to any directions of the Military Court.

Clause 155 - Record of proceedings to be kept

426.            This clause is modelled on section 148 of the Defence Force Discipline Act 1982 .  It requires the Military Court to keep a record of proceedings and requires the inclusion in the record of such particulars as are prescribed by the regulations.  Subclause (2) provides an exception to this rule.  The Military Court may order that the whole or a specified part of a record not be published if the Military Court considers publication would be contrary to the interests of justice or prejudicial to national security.

Division 3 - Conduct of proceedings

Clause 156 - Accused person to be present at hearing

427.           This clause is modelled on section 139 of the Defence Force Discipline Act 1982 .  It provides that a hearing before the Military Court is to take place in the presence of the accused person.  Where it is impossible to continue the hearing in the presence of the accused person because of his or her disorderly behaviour, subclause (2) provides that the Military Court may order that they be removed.

Clause 157 - Change of venue

428.            This clause gives the Military Court power to order a change of venue at any stage of proceedings.  An order under this clause may specify that the proceeding be conducted in a place inside or outside Australia subject to any conditions imposed by the Military Court.  It is modelled on section 48 of the Federal Court of Australia Act 1976 .  However, unlike the Federal Court, the Military Court may move to a venue outside Australia.

Clause 158 - Formal defects not to invalidate

429.            This clause is modelled on section 51 of the Federal Court of Australia Act 1976 .  It provides that a proceeding in the Military Court is not to be invalidated by a formal defect or irregularity unless a substantial injustice has been caused and that injustice cannot be remedied by an order of the Military Court.

Division 4—Evidence

Clause 159 - Application of Evidence (Miscellaneous Provisions) Act 1991

430.            This clause provides that, in addition to the Evidence Act 1995 ,  Parts 2, 4 and 4A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) apply in relation to proceedings in the Military Court as if the Military Court were a court exercising jurisdiction in or in relation to the Jervis Bay Territory.  Part 2 of the Act will provide protections for children giving evidence in proceedings before the Military Court.  Part 4 of that Act provides various rules of evidence that will apply in proceedings before the Military Court relating to sexual and violent offences.  Part 4A of that Act will allow children and witnesses with a mental disability to be accompanied by a support person when giving evidence in a proceeding before the Military Court.

Clause 160 - Evidence to be given orally

431.            This clause provides that evidence in proceedings before the Military Court must be given orally unless the parties agree to another form to which the Military Court does not object, or the evidence is given in accordance with the Military Court of Australia Bill or any other Act, or the law in force in the Jervis Bay Territory.  This may include the Evidence Act 1995 .

432.            Testimony by video link, audio link or other appropriate means is dealt with in Division 5.

Clause 161 - Orders and commissions for examination of witnesses

433.            This clause is modelled on section 46 of the Federal Court of Australia Act 1976 .  It allows the Military Court for the purposes of proceedings before it to order the examination of a person on oath or affirmation before the Military Court, a Judge, Federal Magistrate, an officer of the Military Court or other person at any place within or outside Australia.  It also allows the Military Court to authorise a person (other than a member of the Australian Defence Force) to take the evidence on oath or affirmation.  This provision will help to ensure the independence of the Military Court from the Australian Defence Force.

434.            Upon making such an order the Military Court may give directions as to the time, place and manner of the examination.  The Military Court may also empower any party to give, in evidence in the proceeding, the evidence taken by an authorised person.

Clause 162 - Oaths and affirmations

435.            This clause is modelled on section 44 of the Federal Court of Australia Act 1976 .  It provides that a Judge or Federal Magistrate may require and administer all necessary oaths and affirmations for the purposes of the Military Court.  It allows the Military Court to authorise (either orally or in writing) any person within or outside Australia to administer oaths or affirmations.

436.            Subclause (3) allows the Registrar to authorise certain officers, including a Deputy Registrar, to administer oaths or affirmations by written instrument.  An oath or affirmation made for the purposes of a proceeding before the Military Court must be made in the form provided in the Military Court Rules.

Clause 163 - Swearing of affidavits etc.

437.            This clause is modelled on section 45 of the Federal Court of Australia Act 1976 .  It sets out the people before whom an affidavit to be used in a proceeding before the Military Court may be sworn or affirmed both inside and outside Australia.  In Australia, affidavits may be sworn or affirmed before people including a Judge or Federal Magistrate, Registrar or justice of the peace.  Outside Australia, an affidavit may be sworn or affirmed before a broader range of people including a person who is a competent officer, for the purposes of regulations in force under the Defence Act 1903 , for taking affidavits of members of the Australian Defence Force in that place.

438.            Subclause (3) provides that the Military Court Rules may allow an affidavit sworn or affirmed outside Australia otherwise than before a person in subclause (2) to be used in a proceeding before the Military Court.

Clause 164 - Judicial notice of service matters

439.            This clause is modelled on section 147 of the Defence Force Discipline Act 1982 .  It provides that the Military Court must take judicial notice of matters within the general service knowledge of that Court.  This would include, for example, the relative ranks of members or the authority of different classes of members.

Clause 165 - Protecting witnesses etc.

440.            This clause is modelled on section 23HC of the Federal Court of Australia Act 1976 .  Subclause (1) gives the Military Court power to make such orders as it thinks appropriate to protect a witnesses called or proposed to be called or information, documents and other things admitted or proposed to be admitted.  This is an addition to the powers of the Military Court to restrict or prohibit the publication of information about witnesses and evidence under clause 166.

441.            Subclause (2) provides that, among other things, the Military Court may order the exclusion of the public or of persons specified by the Military Court, from a sitting of the Military Court or direct how a witness may give evidence.

Clause 166 - Prohibition or restriction on publication of evidence etc.

442.            This clause is modelled on section 50 of the Federal Court of Australia Act 1976 .  It allows the Military Court to make orders prohibiting the publication of particular information where it appears to the Military Court to be necessary to prevent prejudice to the administration of justice or national security.  This may include forbidding the publication of the name of a party or witness, or access to certain documents obtained though discovery or produced under a subpoena.  This is in addition to the powers of the Military Court to protect witnesses and evidence admitted in a proceeding under clause 165.

Clause 167 - Offences by witness

443.            This clause is modelled on section 58 of the Federal Court of Australia Act 1976 .  It provides that it is an offence for a person duly served with a subpoena or summons to appear as a witness before the Military Court to fail to attend as required, or to fail to appear and report themselves from day to day unless excused or released from further attendance by the Military Court.

444.            Subclause (2) provides that it is an offence for a person appearing as a witness before the Military Court to refuse or fail to swear an oath or make an affirmation, answer a question, or produce a book to document required to be produced.

445.            The penalty for both offences under this clause is 6 months imprisonment, and Part 2.3 of the Criminal Code sets out defences that may apply to these offences.

Division 5—Use of video links or audio links

Clause 168 - Testimony by video link or audio link

446.            This clause is modelled on section 47A of the Federal Court of Australia Act 1976 .  It deals with testimony being given by video link, audio link or other appropriate means in proceedings before the Military Court.  It provides that the Military Court can make an order for testimony to be given in this way on the application of a party to the proceeding or on the Military Court’s own initiative. 

447.            Testimony given by video link or audio link must be given on oath or affirmation unless the person giving testimony is in a foreign country and the laws of that country do not permit them to give testimony on oath or affirmation, or it would be inconvenient for them to do so.  The Military Court must also be satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.  If testimony is not given on oath or affirmation, subclause (3) provides that the Military Court must give the testimony such weight as it thinks fit.

448.            Subclause (5) provides that these provisions do not apply to a person giving testimony from New Zealand as this is dealt with by the Evidence and Procedure (New Zealand) Act 1994.

Clause 169 - Appearances or submissions of persons by video link or audio link

449.            This clause is modelled on section 47B of the Federal Court of Australia Act 1976 .  It deals with a person appearing or making submissions by audio link or other appropriate means in proceedings before the Military Court.   It provides that the Military Court can make an order for a person to appear in this way on the application of a party to the proceeding or on the Military Court’s own initiative. 

450.            Subclause (3) provides that these provisions do not apply to a person appearing or making a submission from New Zealand as this is dealt with by the Evidence and Procedure (New Zealand) Act 1994.

Clause 170 - Conditions for use of video links and audio links

451.            This clause is modelled on section 47C of the Federal Court of Australia Act 1976 .  It outlines a number of conditions which must be met before the Military Court can allow testimony to be given, or an appearance or submission to be made, by video link, audio link or other appropriate means.

452.            For an appearance made by video link including to give testimony, the courtroom or place where the Military Court is sitting must be equipped with facilities that enable all eligible persons present to see and hear the person and vice versa.  The Military Court may impose other conditions for the appearance including about the form of the video link, the layout of cameras and quality of the communication.

453.            The same conditions apply for an appearance made by audio link to the extent that all eligible persons present must be able to hear the person giving the testimony or appearing before the Military Court.

454.            Subclause (5) provides that the Military Court may allow an appearance by means other than video link or audio link if certain conditions are met, including any conditions prescribed by the Military Court Rules.

455.            Subclause (6) defines ‘eligible person’ for the purposes of the clause.  A person is an ‘eligible person’ if the Military Court considers they should be treated so.

Clause 171 - Putting documents to a person by video link or audio link

456.            This clause is modelled on section 47D of the Federal Court of Australia Act 1976 .  It provides for documents to be put to a person if it is necessary in the course of an examination or appearance by video link, audio link or other appropriate means.  If the document is physically present in the courtroom or place where the Military Court is sitting a copy must be transmitted and put to the person where they are located.  If the document is physically present where the person appearing remotely is located, a copy must be transmitted to the courtroom or other place where the Military Court is sitting. 

Clause 172 - Administration of oaths and affirmations

457.            This clause is modelled on section 47E of the Federal Court of Australia Act 1976 .  It provides that an oath can be sworn, or an affirmation made, by a person giving testimony by video link, audio link or other appropriate means in two ways.  It can be administered by means of the video or audio link in a way that as nearly as practicable corresponds to how it would be administered if the person were present where the Military Court is sitting.  Alternatively, the Military Court may allow another person present at the place where the person is located to administer the oath or affirmation.

Clause 173 - New Zealand proceedings

458.            This clause is consistent with section 47G of the Federal Court of Australia Act 1976 .  It clarifies that the provisions in Division 5 are not intended to affect the operation of the remote appearance regime which operates under the Evidence and Procedure (New Zealand) Act 1994.

Division 6—Orders and judgments

Clause 174 - Orders

459.            This clause provides that an order of the Military Court must be in writing, or reduced to writing as soon as practicable, and may be authenticated in a manner specified in the Military Court Rules.

Clause 175 - Reserved judgments

460.            This clause is modelled on section 49 of the Federal Court of Australia Act 1976 .  It provides that where the Military Court reserves judgment in a proceeding, and the Judge or Federal Magistrate who heard the proceeding is not available to publish the judgment, it may be made public by another Judge or Federal Magistrate authorised by the original Judge to do so.  A judgment published in this way has the same effect as if it were made public by the original Judge or Federal Magistrate who wrote the judgment.

Clause 176 - Recovery of amounts due under order of Military Court

461.            This clause outlines the ways in which an amount due and payable under an order by the Military Court can be recovered against a person.  This may include a deduction from a pay or salary payable to the person by the Commonwealth, or by action in a civil court as a debt due to the person in whose favour the order was made.

462.            Subclause (2) provides that if an amount is directed to be paid by instalments and a person defaults on an instalment the remaining amount becomes due and payable.

463.            Subclause (3) provides that this section will not affect any right or remedy that a person may have, apart from this section, in respect of any loss or damage occasioned by a service offence.

Division 7—Military Court Rules

Clause 177 - Military Court Rules

464.            This clause allows the Judges and Federal Magistrates of the Military Court to make Rules of Court not inconsistent with the Bill.  The Rules may make provision for the practice and procedure to be followed in the Military Court and anything necessary or convenient to be prescribed for the conduct of any of its business.  The provision is intended to have broad application and capture the full scope of rule making power that may validly be conferred on a federal court.

465.            The Military Court Rules will have effect subject to any provision made by another Act or rule or regulations under another Act with respect to the practice and procedure in particular matters.

466.            Subclauses (3) and (4) are modelled on subsections 59(4) and (5) of the Federal Court of Australia Act 1976 .  Subclause (3) provides that the Military Court Rules are subject to the requirements of the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act).  That Act applies as if a reference to a legislative instrument was a reference to a rule of court, and reference to a rule-maker was a reference to the Chief Justice acting on behalf of the Judges and Federal Magistrates of the Military Court.  This provision is subject to such further modifications or adaptations as provided for in regulations under this Bill.

467.            Subclause (4) makes it clear that despite section 16 of the Legislative Instruments Act 2003 the Attorney-General’s Department may provide assistance in the drafting of any Military Court Rules. Section 9 of the Legislative Instruments Act 2003 provides that rules of court are not legislative instruments for the purposes of that Act.  However this clause provides that, with the exception of certain provisions, the Legislative Instruments Act 2003 will apply to rules of court.  A note in the Legislative Instruments Act 2003 clarifies that rules of court are treated as if they were legislative instruments by express amendment of the legislation providing for them to be made.

468.            The provisions of the Legislative Instruments Act 2003 that will not apply to rules of court are: sections 5, 6 and 7 (definition of legislative instrument); sections 10 and 11 (Attorney-General may certify whether an instrument is a legislative instrument or not); and section 16 (measures to achieve high drafting standards for legislative instruments). Therefore, rules of court will be required to be lodged on the Federal Register of Legislative Instruments; will be subject to appropriate consultation requirements (as determined by the rule-maker) where they are likely to have a direct, or a substantial indirect, effect on business or restrict competition; will be subject to disallowance (as they are presently) and sunsetting.

469.            Notwithstanding the fact that section 16 of the Legislative Instruments Act 2003  will not apply to the rules of court, nevertheless, the Attorney-General's Department may provide assistance in drafting of those rules.

Clause 178 - Requirements relating to the making of Military Court Rules

470.            This clause sets out how Military Court Rules are to be made.  These requirements reflect the different types of matters that will be heard in the two Divisions of the Military Court.  Both Divisions will need the ability to make Rules that are flexible enough to complement their own discrete practices and procedures.  Wherever possible, the Military Court is encouraged to adopt common rules for the Military Court as a whole.

471.            Subclause (1) enables Military Court Rules to be made for both Divisions and for each Division separately. 

472.            Subclause (2) provides that Military Court Rules applicable to both Divisions must be made by a majority of Judges in the Appellate and Superior Division and a majority of Federal Magistrates of the General Division.  This prevents either Division making Rules for the whole Military Court simply by constituting a majority of the Military Court.

473.            Subclause (3) provides that Military Court Rules applicable only to the Appellate and Superior Division must be made by a majority of Judges of that Division.  Similarly, subclause (4) provides that Military Court Rules for the General Division must be made by a majority of Federal Magistrates of that Division.  This prevents either Division making Rules for the other Division.  These provisions do not specify what subject matter can be dealt with in the Military Court Rules.

474.            Subclause (5) requires that Rules made for each Division separately must not be inconsistent with Military Court Rules made by the majority of both Divisions for the whole Military Court. 

Part 11 - Miscellaneous

Clause 179 - Certain provisions of the Crimes Act 1914 do not apply or apply with modifications

475.            Subclause (1) lists the sections of the Crimes Act 1914 that do not apply in relation to service offences.  Section 15AA of the Crimes Act 1914 , which sets out certain cases in which bail is not to be granted, does not apply in relation to service offences because of existing bail provisions in Division 3, Part 8 of this Bill.  Section 15A of the Crimes Act 1914 , which provides mechanisms for the enforcement of fines, does not apply in relation to service offences because clause 176 already provides for the recovery of amounts due under orders of the Military Court.  Section 15B of the Crimes Act 1914 , which sets out the time for commencement of prosecutions, does not apply in relation to service offences because it potentially conflicts with section 96 of the Defence Force Discipline Act 1982 which provides the time limit for imposing charges for service offences.  Section 16BA of the Crimes Act 1914 , which allows a court to take other offences into account, does not apply in relation to service offences because clause 144 of this Bill already provides for the Military Court to take other offences into consideration.  Section 16E of the Crimes Act 1914 does not apply in relation to service offences because it has been replicated in modified form as clause 145 of this Bill.  Sections 20AB and 20AC of the Crimes Act 1914 , which provide additional sentencing alternatives and consequences for breach, do not apply in relation to service offences because the alternative offences provision in section 142 of the Defence Force Discipline Act 1982 applies.  Sections 20BQ and 20BR of the Crimes Act 1914 , which provides for the summary disposition of persons suffering from mental illness or intellectual disability, do not apply because they have been replicated in modified form as clauses 92 and 93 of this Bill.  Section 21B of the Crimes Act 1914 , which provides for a court to make reparation orders, does not apply in relation to service offences because clause 152 of this Bill already provides for the Military Court to make reparation orders.     

476.            Subclause (2) confirms that a reference in the Crimes Act 1914 to a prison or imprisonment does not include a reference to detention or a detention centre.  The punishment of detention is in a place, not being a prison, operated by the Defence Force as a place for the detention of persons on whom punishments of detention have been imposed.  Subclause (2) clarifies that the distinction between detention and imprisonment in this Bill applies in relation to references to a prison or imprisonment in the Crimes Act 1914

477.            Subclause (3) modifies the application of certain sections of the Crimes Act 1914 to service offences.  References to the Director of Public Prosecutions are to be read instead as references to the Director of Military Prosecutions.

Clause 180 - Regulations

478.            This clause provides for regulations to be made prescribing matters required or permitted by the Bill, or matters necessary or convenient to be prescribed for carrying out or giving effect to the Bill.   

479.            The regulations may prescribe penalties for offences against the regulations not exceeding 10 penalty units.  They may also make provision modifying or adapting provisions of the Legislative Instruments Act 2003 in their application to the Military Court (other than the provisions of Part 5 of that Act which deal with parliamentary scrutiny of legislative instruments).

SCHEDULE 1 - Additional terms and conditions of Federal Magistrates

480.            Schedule 1 sets out the terms and conditions of Federal Magistrates in the Military Court additional to those already set out in Division 3 of Part 2.  The provisions in this Schedule are consistent with the provisions relating to the terms and conditions of Federal Magistrates in the Federal Magistrates Court in Divisions 1 and 2 of Part 1 of Schedule 1 to the Federal Magistrates Act 1999 .  Provisions relating to the remuneration, resignation, and removal from office of Federal Magistrates in the Military Court are contained in Division 3 of Part 2.    

Clause 1 - Outside work

481.            This clause provides that a Federal Magistrate must not engage in remunerated work which is inconsistent with the holding of judicial office.  In particular, paragraph (2)(a) prohibits a Federal Magistrate from practising as a legal practitioner.

482.            Subclause (3) ensures that any doctrine of constitutional incompatibility will apply to a Federal Magistrate.  For example, in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 the High Court held that there were certain functions that could not be conferred on a federal judicial officer.  This would be the case if the function were incompatible with the judicial officer’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. 

Clause 2 - Leave

483.            This clause provides that recreation leave entitlements for a Federal Magistrate are to be determined by the Remuneration Tribunal.  Other leave entitlements will be on such terms and conditions as the Governor-General determines (clause 3).

Clause 3 - Other terms and conditions

484.            This clause provides for the Governor-General to determine other terms and conditions not specified in the Bill.  Any determination made by the Governor-General is a legislative instrument which must be tabled in Parliament and may be disallowed within 15 sitting days after the determination is tabled.  This disallowance mechanism is based on a similar mechanism in section 7 of the Remuneration Tribunal Act 1973

Clause 4 - Disability and death benefits

485.            This clause applies the disability and death benefit provisions in Division 2 of Part 2 of Schedule 1 to the Federal Magistrates Act 1999 in relation to Federal Magistrates of the Military Court.  Subclause (2) provides the following modifications to facilitate this application: each reference to a Federal Magistrate is to be read as a reference to a Federal Magistrate of the Military Court, cross-references to other clauses in the Federal Magistrates Act 1999 are replaced by references to equivalent provisions in this Bill, and the definition of prior judicial service includes service as a Federal Magistrate of the Federal Magistrates Court. 

486.            Subclause (3) replicates section 9G in Division 2 of Part 2 of Schedule 1 to the Federal Magistrates Act 1999 that establishes a special appropriation for the payment of disability and death benefits.  The establishment of a special appropriation is necessary as it is not possible to predict when such benefits will need to be paid. 

SCHEDULE 2 - Terms and conditions of the Registrar

487.            Schedule 2 sets out the terms and conditions of the Registrar of the Military Court.  These provisions are consistent with the provisions relating to the terms and conditions of the Registrar of the Federal Court of Australia in Division 2 of Part IIA of the Federal Court of Australia Act 1976 .  Provisions relating to the appointment and powers of the Registrar of the Military Court and acting Registrar provisions are contained in Division 4 of Part 3 of this Bill.

Clause 1 - Remuneration

488.            This clause provides that the Remuneration Tribunal is to determine the remuneration of the Registrar.  The Notes clarify that the Remuneration Tribunal can also determine annual allowances and any matters significantly related to the remuneration of the Registrar.  If no remuneration or other allowances are set by the tribunal, subclauses (2) and (3) provide that they are to be prescribed by regulation. 

Clause 2 - Other terms and conditions

489.            This clause provides that the Chief Justice is to set the terms and conditions upon which the Registrar holds office in respect of matters not provided by the Bill.

Clause 3 - Leave of absence

490.            This clause provides that the Remuneration Tribunal is to determine the recreation leave entitlements of the Registrar.  Subclause (2) provides the Chief Justice with discretion to grant leave of absence, other than recreation leave, to the Registrar on such terms and conditions as are determined by the Chief Justice with the approval of the Attorney-General.

Clause  4 - Resignation

491.            This clause provides that the Registrar may resign at any time by delivering to the Governor-General a signed notice of resignation.  Subclause (2) provides that the resignation takes effect on the day on which it is received by the Governor-General or a later day if specified in the resignation.

Clause 5 - Outside employment

492.            This clause prevents the Registrar from engaging in paid employment outside the duties of his or her office without the approval of the Chief Justice, except as provided for by subclause 31(4).  Subclause 31(4) allows the Registrar of the Military Court to be a person who holds office as the Registrar of the Federal Court.  The capacity for the Registrar of the Federal Court to also be appointed as the Registrar of the Military Court will facilitate the Federal Court’s joint-administration with the Military Court.  This is intended to eliminate administrative duplication and reduce inefficiencies in the administration of both courts.                   

Clause 6 - Termination of employment

493.            This clause provides standard termination provisions for statutory office holders and stipulates the grounds on which the Registrar’s appointment may be terminated.  The Governor-General has discretion to terminate the appointment of the Registrar for misbehaviour or physical or mental incapacity.  If the Registrar becomes bankrupt, is absent from duty (except on leave of absence) for 14 consecutive days or for 28 days in any 12 months without the consent of the Chief Justice, or engages in paid employment (except as Registrar of the Federal Court of Australia) without the approval of the Chief Justice or fails, without reasonable cause, to comply with the requirement to disclose direct or indirect pecuniary interests, the Governor-General must terminate the Registrar’s appointment. 

494.            There is also provision for the Governor-General, with the Registrar’s consent, to retire the Registrar on the ground of incapacity, if the Registrar is an eligible employee for the purposes of the Superannuation Act 1876 , a member of the superannuation scheme established by deed under the Superannuation Act 1990 , or an ordinary employer-sponsored member of PSSAP within the meaning of the Superannuation Act 2005

Clause 7 - Disclosure of interests

495.            This clause requires the Registrar to give written notice to the Chief Justice of all direct or indirect pecuniary interests that the Registrar has or acquires in any business or body corporate carrying on a business.

SCHEDULE 3 - Service offences that must be heard and determined by the Appellate and Superior Division

496.            Schedule 3 provides a list of service offences that must be heard and determined by the Appellate and Superior Division.  This ensures that the most serious service offences are dealt with at an appropriate level by a Judge of the Appellate and Superior Division.  It also provides greater parity with the criminal justice system, under which the most serious criminal offences are heard by a judge of a superior court (in most cases the Supreme Court of the State or Territory).      

497.            The service offences in items 1 to 18 are those that go to the very core of maintaining discipline and morale in the Australian Defence Force.  The service offences in items 19 to 21 are those with equivalent offences under ordinary criminal law so serious in nature that the Commonwealth Director of Public Prosecution’s consent is required for prosecution in the military justice system or which have a serious maximum punishment of 10 years imprisonment or more.  The service offence in item 22 is one of commanding or ordering the commission of the types of service offences in items 19 to 21.