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Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

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2010 - 2011 - 2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MILITARY COURT OF AUSTRALIA (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2012

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Hon Nicola Roxon MP)



Glossary

In this Explanatory Memorandum, the following acronyms and terms are used.

ADF                            Australian Defence Force

CDF                            Chief of the Defence Force

CDPP                          Commonwealth Director of Public Prosecutions

DDCS                         Director of Defence Counsel Services

DFDAT                       Defence Force Discipline Appeals Tribunal

DMP                           Director of Military Prosecutions

RMJ                            Registrar of Military Justice

Military Court             Military Court of Australia

 



MILITARY COURT OF AUSTRALIA (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2012

GENERAL OUTLINE

1.                   The Bill makes amendments to the Defence Force Discipline Act 1982 and other legislation, consequential to the establishment of a new Military Court of Australia (Military Court) under Chapter III of the Constitution.  The new Military Court will try serious service offences committed by Australian Defence Force (ADF) personnel.  The vast majority of service offences, which are less serious in nature, will continue to be heard by summary authorities, as was the case under the Australian Military Court (in 2007-2009) and the interim courts martial and Defence Force magistrate system.

2.                   The Bill also provides for the transition to the new Military Court system from 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 in the Defence Force Discipline Act 1982 establishing the Australian Military Court, which commenced hearing matters on 10 October 2007, were held to be invalid by the High Court in Lane v Morrison  [2009] HCA 29 on 26 August 2009.

3.                   This Bill further includes other measures to enhance the ADF military discipline system.  It also includes transitional and savings provisions in relation to proceedings that will not be finalised prior to the commencement of the Military Court ‘start day’ (Military Court commencing to hear matters).

Abolition of the Defence Force Discipline Appeals Tribunal

4.                   The Bill abolishes the Defence Force Discipline Appeals Tribunal (DFDAT).  The DFDAT was established under the Defence Force Discipline Appeals Act 1955 , and has jurisdiction to hear appeals from courts martial and Defence Force magistrates and previously, the Australian Military Court.  However, as a non-judicial body, it is not constitutionally able to review the decisions of a Chapter III court.  The jurisdiction of the DFDAT will be absorbed by the Military Court, which will have jurisdiction to hear appeals from judgments of the Military Court at first instance as well as appeals from courts martial and Defence Force magistrates (where they are used in the new system).  The DFDAT will be abolished once its jurisdiction to hear appeals under the current system is exhausted.

Residual court martial and Defence Force magistrates system

5.                   Courts martial and Defence Force magistrates will be retained as a residual or backup system, and used in rare instances where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas.  The Bill moves the provisions which relate only to courts martial and Defence Force magistrate trials in the Defence Force Discipline Act 1982 to a new Schedule 3B of that Act.  This reflects the restricted operation of courts martial and Defence Force magistrates under the new military justice system.  Provisions relating generally to service tribunals (courts martial, Defence Force magistrates and summary authorities) are retained in the body of the Defence Force Discipline Act 1982 .  Schedule 3B will also include provisions for appeals to be brought from a decision of a court martial or Defence Force magistrate to the Military Court.

Internal review

6.                   The current review mechanisms for convictions and punishments imposed by service tribunals (summary authorities, courts martial and Defence Force magistrates) will be maintained.  This includes an automatic review by a reviewing authority, a petition to a reviewing authority and a further review by the Chief of the Defence Force (CDF) or a Service Chief.

7.                   However, where there is an appeal to the Military Court from a decision of a court martial or Defence Force magistrate under Schedule 3B, then the review process will be discontinued.

Right to elect

8.                   There will be no appeal rights from a decision of a summary authority to the Military Court.  Instead, ADF members charged with a service offence which would otherwise be tried by a summary authority may elect to be tried, instead, by the Military Court.  This election becomes available from the moment the ADF member is charged until they have entered a plea at trial.  Currently, ADF members charged with a less serious service offence for trial by a summary authority do not have a right to elect to be tried by a court martial or Defence Force magistrate on every charge.

Status and character of service offences

9.                   The Bill amends the Defence Force Discipline Act 1982 to clarify the status and character of service offences as an offence against a law of the Commonwealth.  Convictions for service offences by a summary authority continue to be for service purposes only.  However, convictions for service offences by the Military Court or the residual court martial or Defence Force magistrate must be disclosed as an offence against a law of the Commonwealth, if required under legislation.  As a result, a person will be required to disclose convictions for service offences by the Military Court or the residual court martial or Defence Force magistrate when a law requires disclosure of convictions against a law of the Commonwealth.  In these instances, they will disclose that the conviction was for a service offence.  A service chief or an authorised officer may also disclose the fact that a person has been convicted of a service offence, and information relating to the conviction, to a Commonwealth, State or Territory authority for purposes connected with investigating, prosecuting or keeping records in relation to offences against laws of the Commonwealth, the State or the Territory. The exception to this is offences under Schedule 7, which are purely service in nature and have no civilian criminal equivalents.  Convictions for these offences will be reportable for service purposes only.

10.               As service offences are classified as offences against a law of the Commonwealth, the spent conviction scheme applies.  Therefore, a person who has been convicted of a service offence is not required to disclose the conviction if the conviction is spent within the meaning of Part VIIC of the Crimes Act 1914.

 

Mental impairment

11.               The Bill modernises the existing antiquated provisions dealing with persons found unfit for trial or persons acquitted on the basis of mental impairment at the time of committing the offence.  The existing provisions require a person to be kept in strict custody until the pleasure of the Governor-General is known.  Under the new regime, persons found unfit for trial or acquitted on the basis of mental impairment at the time of committing the offence will be dealt with similarly to those in the Commonwealth civilian criminal justice system.  The regime adopts the definition of ‘mental impairment’ in the Criminal Code.  The procedures and powers applying to summary authorities, courts martial, and Defence Force magistrates will be broadly aligned to those applying in the Military Court, taking into account the ad hoc nature of service tribunals and summary authority trials.

 

Abolition of positions of Registrar of Military Justice and Chief Judge Advocate

12.               The Bill abolishes the statutory positions of Registrar of Military Justice (RMJ) and Chief Judge Advocate.  Both positions support courts martial and Defence Force magistrates.  In the current system, the RMJ has a range of responsibilities including convening courts martial and referring charges to Defence Force magistrates.  The Chief Judge Advocate’s role is to provide administrative assistance to the Judge Advocate General, whose primary role relates to courts martial and Defence Force magistrate trials.

13.               As the Military Court will hear most trials for serious service offences, and courts martial and Defence Force magistrate trials will be rare in the new system, retaining these statutory positions is not justified.  Instead the Bill confers additional responsibilities on other persons, for example superior authorities, to support courts martial and Defence Force magistrate trials when they do occur.

Removal of references to old system offences

14.               The Defence Force Discipline Act 1982 currently refers to ‘old system offences’.  This term refers to offences under single Service (Navy, Army and Air Force) legislation, repealed when the Defence Force Discipline Act 1982 commenced.  References to ‘old system offences’ were included in the Defence Force Discipline Act 1982 at that time as a transitional measure.  The Bill removes references to ‘old system offences’ in the Defence Force Discipline Act 1982 because an act or omission which might constitute an ‘old system offence’ can no longer be tried under the Defence Force Discipline Act 1982 due to statutory time limits within which a prosecution must be commenced having now expired.

Interaction with the civilian criminal law

15.               Section 63 of the Defence Force Discipline Act 1982 will continue to require the Director of Military Prosecutions (DMP) to obtain the consent of the Commonwealth Director of Public Prosecutions (CDPP) prior to prosecuting certain serious service offences with criminal law equivalents (such as murder, rape, assault) committed in Australia.  The Memorandum of Understanding between the Australian Directors of Public Prosecutions and Director of Military Prosecutions is the cooperative arrangement which operationalises the section 63 statutory requirement for CDPP consent and facilitates cooperation and consultation between the Australian Directors of Public Prosecutions and the DMP, particularly where the military discipline and criminal law jurisdictions overlap.  The Memorandum of Understanding will continue to operate.

Director of Military Prosecutions

16.               The DMP will continue to exist as a separate statutory office under the new military justice system.  The DMP will be responsible for prosecuting charges in the Military Court.  Charges may be referred to the DMP in three principal ways:

  • Election by the accused at a summary level
  • Referral of charges to the DMP by a summary authority during the dealing or trial phase of the summary hearing, or
  • Referral of charges to the DMP by the Australian Defence Force Investigative Service or a summary authority before the dealing phase of the summary hearing, due to the offence being a serious service offence, as defined in subsection 3(1) of the Defence Force Discipline Act 1982 .

17.               Where the Military Court determines it is necessary, but not possible, for it to conduct a trial overseas, the DMP will be able to have the charges dealt with under the Defence Force Discipline Act 1982 .  The new Schedule 3B of the Defence Force Discipline Act 1982 will allow the DMP to prosecute the charges in the residual court martial and Defence Force magistrate system.

Director of Defence Counsel Services

18.               The Defence Act 1903 will be amended to afford statutory recognition to the Office of the Director of Defence Counsel Services (DDCS).  Amendment to the Defence Act 1903 will also provide for the functions and responsibilities of DDCS with respect to ADF discipline and Commission of Inquiry roles.  These amendments would implement recommendations 18 and 19 of The Report of the Independent Review on the Health of the Reformed Military Justice System by the Honourable Sir Laurence Street AC KCMG QC and Air Marshal Les Fisher AO FRAeS MAP (Rtd) , dated 23 January 2009.

FINANCIAL IMPACT STATEMENT

19.               These amendments will require a reallocation of funding from within existing resources and are otherwise cost neutral.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

20.               This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

21.               The purpose of Australia’s military justice system is to support command in reinforcing discipline and enhancing operational effectiveness.  Military discipline which supports the authority and effectiveness of commanders is of vital importance in the operation of the ADF.

22.               The Bill operates in conjunction with the Military Court of Australia Bill 2012, which establishes the Military Court of Australia under Chapter III of the Constitution. 

23.               This Bill makes amendments to the Defence Force Discipline Act 1982 and other Acts consequential to establishment of the Military Court.  These amendments include retaining courts martial and Defence Force magistrates where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas.

24.               The Bill also provides for the transition to the new Military Court system from the interim measures in the Military Justice (Interim Measures) Act (No. 1) 2009 , which re-established the pre-2007 system of hearings by courts martial and Defence Force magistrates.  It also includes other measures to enhance the Australian Defence Force military discipline system. 

Human Rights Implications

25.               This Bill engages the following rights:

  • the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’).  Although the trial of service offences is not criminal proceedings as such, this Statement includes assessment as if requirements under Article 14 relating to criminal proceedings have been engaged.  It includes consideration of access for justice for persons with disabilities under Article 13 of the Convention on the Rights of Persons with Disabilities (‘CRPD’)
  • freedom from arbitrary detention under Article 9 of the ICCPR and Article 14 of the Convention on the Rights of Persons with Disabilities (CRPD)
  • the right to humane treatment in detention under Article 10 of the ICCPR, and
  • the right to privacy under Article 17 of the ICCPR.

Right to a fair trial

Fair and public hearing by a competent, independent and impartial tribunal

26.               Article 14(1) of the ICCPR provides for the right to a fair and public hearing by a competent, independent and impartial tribunal in the determination of any criminal charge against a person, or of a person’s rights and obligations in a suit at law.

27.               The Defence Force Discipline Act 1982 creates service offences for the purpose of maintaining discipline in the Australian Defence Force.  The Defence Force Discipline Act 1982 complements, and does not replace, Australian criminal law.  This right is engaged because serious service offences will be an offence against the law of the Commonwealth and conviction may attract punishments including imprisonment or military detention.

Residual court martial and Defence Force magistrate system

28.               The Military Court established by the Military Court of Australia Bill 2012  will replace the system of hearing by courts martial and Defence Force magistrates in the military justice system.  However, the system of courts martial and Defence Force magistrates will be retained as a residual or backup system where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas.  This is not expected to occur frequently.  The Bill moves the provisions which relate only to courts martial and Defence Force magistrate trials in the Defence Force Discipline Act 1982 to a new Schedule 3B of that Act.  This is to reflect the restricted operation of courts martial and Defence Force magistrates under the new military justice system.

29.               Courts martial and Defence Force magistrates operate within the military chain of command and are not fully independent of the ADF.  Judge advocates are appointed by the Chief of Defence Force (CDF) or a Service Chief, on the nomination of the Judge Advocate General (who must be a current or former Justice of a federal court or State or Territory Supreme Court), and Defence Force magistrates are appointed from judge advocates by the Judge Advocate General.  This may limit the right of persons to have charges of service offences heard by an independent and impartial tribunal.

30.               However, given the highly confined circumstance in which a court martial would operate, these limits are reasonable, necessary and proportionate.  The Military Court will have jurisdiction to try serious service offences, and will be able to sit overseas.  Courts martial or Defence Force magistrates will only be used where the  Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas.  It is necessary to have an alternative means to handle cases where this occurs. 

31.               The Bill includes safeguards for the right to a fair trial where a court martial or Defence Force magistrate is required to hear charges of service offences.  New Schedule 3B provides for the convening of a court martial or reference to a Defence Force magistrate where required in certain cases, and provides for the conduct of and procedure for a trial.  It requires the accused to be notified of the convening of a court martial or reference to a Defence Force magistrate.  An accused will know details of the charges they face and the prosecution case. 

32.               The Bill requires a court martial or Defence Force magistrate to conduct its proceedings in public.  Courts martial or Defence Force magistrates will have the power to exclude the public (or specified persons) if it is considered necessary in the interests of the security or defence of Australia, the proper administration of justice or public morals.  Any such determination by a court martial or Defence Force magistrate to conduct proceedings in private or make orders for non-publication of proceedings will occur based on the individual circumstances of each case.  The Bill provides for membership of a court martial, including eligibility requirements for rank and seniority and restrictions to ensure that members are not biased.

Summary authorities

33.               Summary authorities operate within the military chain of command and are not independent of the ADF.  Summary authorities will be retained under the Defence Force Discipline Act 1982 .  The vast majority of service offences, which are less serious in nature, will continue to be heard by summary authorities, as has been the case since the enactment of the Defence Force Discipline Act 1982

34.               Convictions for service offences by a summary authority continue to be for service purposes only.  It is appropriate that these continue to be enforced within the military chain of command.  Under the Defence Force Discipline Act 1982 , a person has the opportunity to enter pleas of guilty or not guilty, and the summary authority can hear evidence. 

35.               The Bill provides for a right of election for trial in the Military Court of Australia to all accused people facing a charge of a service offence.  This enables a person to have charges of service offences heard by an independent and impartial tribunal.  Under the Military Court of Australia Bill, the Military Court of Australia will be established as a permanent Court in accordance with Chapter III of the Constitution.  The Military Court of Australia Bill provides the necessary independence and constitutional protections for an impartial judiciary in the Military Court.  

Presumption of Innocence

36.               Article 14(2) of the ICCPR provides every individual charged with a criminal offence the right to be presumed innocent until proved guilty according to law. 

37.               Notwithstanding that service offences are not criminal offences, the Bill promotes the presumption of innocence by adopting the criminal standard of proof under the Criminal Code Act 1995 in relation to proceedings before a court martial or Defence Force magistrate.



Minimum guarantees in criminal proceedings

38.               Article 14(3) of the ICCPR provides for minimum guarantees in criminal proceedings.  Notwithstanding that service offences are not criminal offences, if a court martial or Defence Force magistrate is needed, they will operate consistently with the minimum guarantees outlined in Article 14(3).

39.               The Bill requires that an accused is notified of the charge and provides for the accused to be present and legally represented.  There is opportunity for a person in custody to request assistance from an ADF legal officer, and for an accused to be provided free representation by a legal officer.

40.               The Bill sets out the process for requesting a plea from the accused person to the charge and outlines what the court martial or Defence Force magistrate must do based on the plea.  The judge advocate must ask the accused person whether they plead guilty or not guilty before the court martial or Defence Force magistrate begins to hear the evidence on the charge (with procedures in place for both options). 

41.               The Bill provides that the rules of evidence which apply to a court martial and Defence Force magistrate are the same as those which apply to the Military Court.  The Evidence Act 1995 provides for the privilege against self-incrimination.

42.               The Bill requires the court martial or Defence Force magistrate to convict an accused upon a finding that the accused person is guilty, and acquit an accused person upon a finding that the accused person is not guilty. 

Right of review

43.               Article 14(5) of the ICCPR provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

44.               Under the Defence Force Discipline Act 1982 , decisions of service tribunals (court martial, Defence Force magistrate or summary authority) are subject to review.  A person may also petition for review on specific grounds to a reviewing authority (a senior defence officer) or petition the Chief of Defence Force.  These rights will be retained in the new military justice system where appropriate.

45.               Appeals from the decisions of a court martial or Defence Force magistrate lie to the Military Court. 

Punishment following conviction

46.               The Bill provides for imprisonment or detention as a punishment for conviction of a service offence by a service tribunal.  Service tribunals may award punishments of imprisonment or detention of persons as specified in the Defence Force Discipline Act 1982 .  The Bill specifies levels of punishments that may be awarded by a summary authority.

47.               Consistently with Article 9(4) of the ICCPR, the Military Court will have jurisdiction to hear and determine appeals from certain determinations and orders of a court martial or a Defence Force magistrate, including from a convicted person in relation to the punishment imposed.

48.               Article 13 of the CPRD requires State parties to ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

49.               Where it appears to a summary authority, court martial or Defence Force magistrate that a person is unfit to stand trial the charge against the person is to be referred to the DMP, who can then decide whether to bring proceedings.  If proceedings are to be brought, these would be brought before the Military Court.

50.               In a trial by summary authority, where evidence is adduced of mental impairment at the time of the offence, a summary authority will be required to refer the charge to the DMP who can then decide whether to bring proceedings in the Military Court.  The DMP will continue to exist as a separate statutory office under the new military justice system.

51.               The Bill provides for the powers of the court martial or Defence Force magistrate, which will be largely the same as the powers of the Military Court and broadly based on Division 8 of Part IB of the Crimes Act 1914 .  The orders that a court martial or Defence Force magistrate may make are to either:

  • release the person, or release the person subject to certain conditions (such as that a person attend a person or place for treatment), or
  • make another other order it considers necessary having regard to the best interests of the accused person, the safety of any other person to whom the order relates and the safety of the community generally

52.               The Bill requires that any such orders be for a specified period not exceeding three years. 

53.               An order should not be made for imprisonment of a person under these provisions.  Appropriate arrangements would be made for person to be taken to a mental institution where necessary.  In making an order, a court martial or Defence Force magistrates will be able to hear evidence of expert witnesses.  For example, a psychiatrist may be called to give evidence relating to the best interests of an accused person.  An application to vary or set aside an order of a court martial or DFM under these provisions would be made to a service chief if the prescribed acquitted person is a defence member at the time of the application, or to the Attorney-General in any other case.

54.               If a reviewing authority quashes a conviction of a person and acquits the person on the basis of mental impairment at the time of the offence, then the reviewing authority will be empowered to deal with the person in the same way as a court martial or Defence Force magistrate.

Freedom from arbitrary detention

55.               Article 9(1) of the ICCPR provides that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 

56.               Arbitrary is interpreted broadly to include elements of inappropriateness, injustice and lack of predictability. 

57.               The Bill allows for deprivation of liberty of a person in the course of arrest and proceedings before service tribunals. 

Arrest procedures

58.               Under the Defence Force Discipline Act 1982 , a person will be taken into custody following arrest.  The Defence Force Discipline Act 1982 currently provides procedures to ensure charges are laid and proceedings are brought promptly following the arrest of a person under the Act, including reporting requirements.  

59.               The Bill will strengthen current procedures to ensure as far as possible that detention will not be arbitrary and that a person will be brought before a tribunal within a reasonable period.  The Bill will require the CDF, a service chief or an authorised officer to be notified where a person has been in custody for 30 days and proceedings have not been commenced, including reasons for delay in commencement. 

60.               Upon receipt of this notification, the CDF, the service chief or the authorised officer must order the release of the accused person from custody unless this is not reasonably practicable due to the exigencies of service. 

61.               These requirements will be extended to apply for each period of 30 days in which the person remains in custody. 

Release from custody in the course of proceedings

62.               Section 97 of the Defence Force Discipline Act 1982 currently provides that a person charged with a service offence may be released from custody at any time by a commanding officer, who may impose conditions or restrictions of a kind authorised by the CDF or a service chief, by instrument in writing.  This will occur based on the individual circumstances of each case, and can be reconsidered during the course of proceedings before a court martial or Defence Force magistrate.

63.               Under this Bill, the same provisions for bail as the Military Court will apply where a person appeals to the Military Court from a court martial or Defence Force magistrate.



Right to humane treatment in detention

64.               Article 10 of the ICCPR provides the right to humane treatment for individuals deprived of their liberty. 

65.               Persons sentenced to detention will be treated humanely in accordance with the existing provisions of the Defence Force Discipline Act 1982 and the Defence Force Discipline Regulations 1985.

66.               Imprisonment would be in a civilian prison, similar to the civilian criminal justice system.

67.               The Military Court may also impose a punishment of detention in a military detention facility.  Military detention is designed to enforce discipline and is provided in accordance with Part XA of the Defence Force Discipline Act 1982 . Under the Defence Force Discipline Regulations 1985, detention facilities must be approved by service chiefs on an annual basis.  Inspections occur regularly for facilities.  The Defence Force Discipline Regulations 1985 include access to medical assistance.

Right to privacy

68.               Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence, and protects a person’s honour and reputation from unlawful attacks.  The right to privacy may be subject to permissible limitations, provided that those limitations are aimed at a legitimate objective and are reasonable, necessary and proportionate to that objective.

69.               The Bill requires court martial and Defence Force magistrate proceedings to be in public. The open court process is a key component of the right to a fair trial and aims to demonstrate that proceedings have been conducted fairly and that accused persons have been dealt with justly.  

70.               The legitimate objective of ensuring an open court process may limit the right to privacy of individuals who are involved in proceedings before a court martial or Defence Force magistrate, however, the limitations are reasonable, necessary and proportionate.    Courts martial and Defence Force magistrates remain subject to the Privacy Act 1988, which includes requirements for collection and storage of personal information.   

71.               The rules of evidence applicable to proceedings before a court martial or Defence Force magistrate will be the rules of evidence that apply in relation to proceedings before the Military Court.  This provides for appropriate protection of witnesses. 

Conclusion

72.               The Bill is compatible with human rights because it advances the protection of human rights, in particular for freedom from arbitrary detention and the right to privacy.

73.               To the extent that it may also limit human rights, particularly the right to hearing by an independent and impartial tribunal, freedom from arbitrary detention and aspects of the right to privacy, those limitations are reasonable, necessary and proportionate.



NOTES ON CLAUSES

Clause 1 - Short title

74.               This clause provides the short title of the Act to be the Military Court of Australia (Transitional Provisions and Consequential Amendments) Act 2012 .

Clause 2 - Commencement

75.               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 to 3, which concern the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on the day on which the Bill receives Royal Assent.

76.               Items 2, 5, 7, 9, 11, 13, 15, 17, 19, 22, 28 and 29 in the table provide that the consequential amendments that relate to the exercise of the Military Court’s jurisdiction will commence on the Military Court ‘start day’.  This day is when the Military Court begins exercising its jurisdiction and is to be fixed by Proclamation no later than ten months after the Bill receives the Royal Assent.

77.               A period of ten months is provided to allow sufficient time to prepare for the Military Court to commence exercising its jurisdiction.  This includes the appointment of judicial officers to the Military Court, implementation of administrative arrangements for proceedings in the Military Court (including the establishment of Military Court Rules), and to allow the Department of Defence to educate military personnel about the role of the Military Court of Australia in the military justice system and their rights in relation to the new Court.

78.               Item 3 in the table provides that Part 2 of Schedule 1 commences on the 28 th day after the Bill receives Royal Assent.  Part 2 of Schedule 1 contains amendments to offence provisions under the Defence Force Discipline Act 1982 .  These amendments are not dependent on the Military Court commencing its jurisdiction to be effective, and therefore can commence on the usual 28 days after the Bill receives Royal Assent (see subsection 5(1A) of the Acts Interpretation Act 1901 ).  Item 30 provides that Item 34 of Schedule 5 also commences on the 28 th day after the Bill receives Royal Assent.  Item 34 of Schedule 5 applies the amendments of Part 2 of Schedule 1 to acts or omissions that take place after commencement of that Part, and it is therefore appropriate for this provision to commence on the same day.

79.               Items 4 and 23 in the table provide that amendments which repeal references to the Evidence and Procedure (New Zealand) Act 1994 in the Defence Force Discipline Act 1982 and Military Court of Australia Act 2012 commence either immediately after the Military Court begins exercising its jurisdiction or after the repeal of the Evidence and Procedure (New Zealand) Act 1994 , whichever occurs later.  However, the provisions do not commence at all if the Evidence and Procedure (New Zealand) Act 1994 is not repealed. 

80.               Items 6, 8, 10, 12, 14, 16,  20, and 31 in the table provides that consequential amendments that relate to the creation of the Military Court and its judicial officers will all commence at the same time as section 3 of the Military Court Act commences

81.               Item 18 provides that consequential amendments relating to Federal Magistrates of the Military Court commence at the same time as section 3 of the Military Court Act commences.

82.               Item 23 in the table provides that item 47 in Schedule 3 of the Bill commences immediately after the Military Court begins exercising jurisdiction and after the commencement of section 109 of the Trans-Tasman Proceedings Act 2010 (whichever occurs later).  Item 47 in Schedule 3 amends section 109 of the Trans-Tasman Proceedings Act 2010 to insert a reference to the Military Court of Australia.  The intended effect is for that amendment to commence after the commencement of section 109 of the Trans-Tasman Proceedings Act 2010 .

83.               Item 24 in the table provides that items 48 and 49 in Schedule 3 commence immediately before the commencement of item 1 of Schedule 2 of the Trans-Tasman Proceedings (Consequential Provisions) Act 2010 .  Items 48 and 49 in Schedule 3 repeal amendments contained in the Trans-Tasman Consequential Act 2010 to provisions in the Defence Force Discipline Act 1982 , which will not exist if this Bill commences first.  If the Trans-Tasman Consequential Act 2010 commences before the commencement of this Bill, then the amendments will be to provisions in the Defence Force Discipline Act 1982 which do exist and therefore will not need to be repealed by items 48 and 49 in Schedule 3 of this Bill.

84.               Item 25 in the table provides that Division 1 of Part 2 of Schedule 3 commences immediately after the later of either commencement of section 3 of the Military Court Act or commencement of section 3 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 .  The provisions do not commence if the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 does not commence. 

85.               Item 26 in the table provides that Division 2 of Part 2 of Schedule 3 commences immediately after the later of either commencement of section 3 of the Military Court Act or commencement of section 3 of the Courts Legislation Amendment (Judicial Complaints) Act 2012 .  The provisions do not commence if the Courts Legislation Amendment (Judicial Complaints) Act 2012 does not commence. 

86.               The provisions in Divisions 1 and 2 of Part 2 of Schedule 3 incorporate reforms to the handling of complaints about judicial officers in the federal courts to the Military Court of Australia.  These reforms are provided for in the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012, which were introduced on 14 March 2012.  Commencement of these provisions is contingent on the passage of these Bills in order to ensure consistency with the complaints handling frameworks of other federal courts.

87.               Item 27 provides that Division 3 of Part 2 of Schedule 3 commences immediately after the later of either commencement of section 3 of the               Military Court Act or commencement of Schedule 2 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012 .  The provisions do not commence if the Access to Justice (Federal Jurisdiction) Amendment Act 2012 does not commence. 

88.               The provisions in Division 3 of Part 2 mirror suppression and non-publication order provisions included in the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 which was introduced on 23 November 2011 Commencement of these provisions is contingent on the passage of this Bill in order to ensure consistency with the power to make suppression and non-publication orders in other federal courts.

89.               Item 32 provides that Item 36 of Schedule 5 commences on the day this Act receives the Royal Assent.

Clause 3 - Schedule(s)

90.               This clause provides for each Act specified in a Schedule to the Bill to be amended in accordance with the items set out in the relevant Schedule

SCHEDULE 1 - Amendment of the Defence Force Discipline Act 1982

Part 1 - Main amendments

Item 1 - Subsection 3(1) (subparagraph (a)(i) of the definition of appropriate authority )

91.               This item replaces the reference to ‘the Registrar’ in the definition of ‘appropriate authority’ in subsection 3(1) with ‘the convening superior authority for the court martial,’ for the purpose of proceedings before a court martial.  An ‘appropriate authority’ has the power to summon persons to appear before a service tribunal (courts martial, Defence Force magistrate or summary authority) under sections 87 and 138 of the Defence Force Discipline Act 1982 .

92.               This amendment reflects the abolition of the position of RMJ and the use of a convening superior authority to summon persons to appear before a residual court martial proceeding (see the General Outline of this Bill).

Item 2 - Subsection 3(1) (subparagraph (b)(i) of the definition of appropriate authority )

93.               This item replaces the reference to ‘the Registrar’ in the definition of ‘appropriate authority’ in subsection 3(1) with a ‘superior authority’, for the purpose of proceedings before a Defence Force magistrate.  As outlined in the General Outline of this Bill, this reflects the abolition of the position of RMJ and the use of superior authorities to summon persons to appear before a Defence Force magistrate.

Items 3 and 4 - Subsection 3(1) (at the end of the definition of authorized officer )

94.               These items amends the definition of ‘authorized officer’ to clarify that its use is not just for the purposes of provisions in which the expression occurs, but also provisions in which the expression has effect.  This is a consequence of amendments in Items 64, 70, and 71 in Schedule 1 of this Bill, which replace references to ‘authorized officer’ in sections 90, 101X and 101Y with references to ‘issuing officer’.  ‘Issuing officer’ is defined in item 14 to include ‘authorized officers’ and judicial officers of the Military Court.  Although these sections will not expressly refer to ‘authorized officers’, this expression will have effect in those sections because it is included in the definition of ‘issuing officer’ to which the sections do expressly refer.

95.               These items also insert a note below the definition of ‘authorized officer’ to clarify that although this term is not expressed in sections 90, 101X and 101Y, it still has effect in these sections because an ‘authorized officer’ is an ‘issuing officer’ for the purposes of those sections.

Item 5 - Subsection 3(1) (definition of Chief Judge Advocate )

96.               This item repeals the definition of ‘Chief Judge Advocate’.  This reflects the abolition of this office (see the General Outline of this Bill). 

Item 6 - Subsection 3(1) (definition of civil detention facility )

97.               This item amends the definition of ‘civil detention facility’.  The term ‘in a civil court’ has been substituted in this definition for ‘in respect of a civil court offence’.  The existing definition of civil detention facility is a police station or other premises in which persons in custody awaiting trial in a civil court may be lawfully detained.  The effect of the amendment is to maintain the status quo by excluding from the definition of civil detention facilities persons in custody awaiting trial for a service offence.  In almost all cases, custody of a person awaiting trial on charges relating to service offences will be in a military detention facility. The term ‘civil court offence’ excludes service offences, and so will not apply in relation to the Military Court (which only deals with service offences).  However, the term ‘civil court’ is defined in the Defence Force Discipline Act 1982 to mean ‘a federal court or a court of a State or Territory’ and the Military Court is a federal court.

Item 7 - Subsection 3(1) (definition of convening superior authority )

98.               This item inserts a definition of ‘convening superior authority’ for the purpose of a court martial into subsection 3(1).  A ‘convening superior authority’ means the superior authority who convened the court martial, or if the superior authority who convened the court martial is replaced by another superior authority, that other superior authority.  The amendment reflects the abolition of the position of RMJ and the use of certain superior authorities to convene or refer charges to service tribunals (see the General Outline of this Bill).

99.               Certain superior authorities will therefore be appointed with powers to convene a court martial or refer charges to a Defence Force magistrate for trial when the Military Court determines that it is necessary to hear a matter overseas, but it is not possible for the Court to do so.

Item 8 - Subsection 3(1) (definition of convicted person )

100.           This item amends the definition of ‘convicted person’ to include a person convicted by the Military Court.  This item also removes reference to persons convicted by the DFDAT, as the Tribunal will be abolished under the new military justice system (see the General Outline of this Bill).

Item 9 - Subsection 3(1) (definition of Court Martial and Defence Force Magistrate Rules )

101.           This item amends the definition of ‘Court Martial and Defence Force Magistrate Rules’ to reflect the movement of the relevant provision providing the authority to make the Rules from section 149A to new Schedule 3B of the Defence Force Discipline Act 1982 (see Item 105 in Schedule 1 of this Bill and clause 46 inserted by Item 165 in Schedule 1 of this Bill).

Item 10 - Subsection 3(1) (definition of Defence Force Discipline Appeal Tribunal )

102.           This item repeals the definition of ‘Defence Force Discipline Appeal Tribunal’ reflecting the abolition of that Tribunal by Schedule 4 of this Bill (see the General Outline of this Bill).

Item 11 - Subsection 3(1) (definition of Defence Force magistrate )

103.           This item amends the definition of ‘Defence Force magistrate’ to reflect the movement of the relevant provision for the appointment of Defence Force magistrates to Schedule 3B of the Defence Force Discipline Act 1982 .  The appointment provision does not change in substance.

Item 12 - Subsection 3(1) (definition of Director of Defence Counsel Services )

104.           This item inserts a definition of ‘Director of Defence Counsel Services’, to have the same meaning as in the Defence Act 1903 .   This term is used in section 101F which, as amended, provides for the Director to establish a list of legal officers who can assist an accused person.

Item 13 - Subsection 3(1) (definition of elective punishment )

105.           This item repeals the definition of ‘elective punishment’.  The current system of elective punishments available to commanding officers and superior summary authorities at the summary level will be replaced by a single scale of punishments that can be imposed by the summary authorities (see Item 164 of this Bill providing for a new Schedule 3 of the Defence Force Discipline Act 1982 ). 

Item 14 - Subsection 3(1) (definition of issuing officer )

106.           This item inserts a definition of ‘issuing officer’ as an ‘authorized officer’, or a Judge or a Federal Magistrate of the Military Court.  Items 64, 70, and 71 in Schedule 1 of this Bill replace the references to ‘authorized officer’ in existing sections 90, 101X and 101Y with ‘issuing officer’ to allow Judges and Federal Magistrates of the Military Court to issue arrest and search warrants under these sections of the Defence Force Discipline Act 1982 .

Item 15 - Subsection 3(1) (definition of mental impairment )

107.           This item inserts a definition of ‘mental impairment’ as having the same meaning as in section 7.3 of the Criminal Code .  This is a consequence of updating the regime for dealing with mental impairment, modelled on the Commonwealth regime.

Item 16 - Subsection 3(1) (definition of Military Court )

108.           This item inserts a definition of the ‘Military Court’, being the Military Court of Australia created by the Military Court of Australia Act 2012.

Item 17 - Subsection 3(1) (definition of Military Court Act )

109.           This item inserts a definition of the ‘Military Court Act’, being the Military Court of Australia Act 2012.

Item 18 - Subsection 3(1) (definition of Military Court Rules )

110.           This item inserts a definition of ‘Military Court Rules’ as having the same meaning as in the Military Court Act.

Item 19 - Subsection 3(1) (definition of old system offence )

111.           This item repeals the definition of ‘old system offence’ in the Defence Force Discipline Act 1982  as all proceedings in respect of old system offences have been completed and no new proceedings for old system offences can be instituted (see the General Outline of this Bill).

Item 20 - Subsection 3(1) (definition of prescribed acquittal )

112.           This item amends the definition of ‘prescribed acquittal’ by removing the term ‘unsoundness of mind’ and replacing it with ‘mental impairment’.  This amendment is a consequence of updating the regime for dealing with mental impairment.  The new regime is modelled on the Commonwealth regime and adopts the Criminal Code definition of mental impairment (see Item 15 in Schedule 1 of this Bill).

Item 21 - Subsection 3(1) (at the end of the definition of prescribed acquittal )

113.           This item inserts a note after the definition of ‘prescribed acquittal’ referring to the relevant provision concerning prescribed acquittal in subclause 35(1) of Schedule 3B.

Item 22 - Subsection 3(1) (definition of prescribed acquitted person )

114.           This item inserts a definition of ‘prescribed acquitted person’ to mean a person who has been acquitted of a service offence, by a court martial or a Defence Force magistrate under Schedule 3B, because of mental impairment.

Item 23 - Subsection 3(1) (definition of previous service law )

115.           This item repeals the definition of ‘previous service law’ which only had application for old system offences. All proceedings in respect of old system offences have been completed and no new proceedings for old system offences can be instituted (see Item 19 in Schedule 1 of this Bill).

Item 24 - Subsection 3(1) (definition of Registrar )

116.           This item repeals the definition of the Registrar of Military Justice (RMJ).  The role of the RMJ in convening courts martial and referring charges to a Defence Force magistrate for trial will be replaced by a superior authority (for Defence Force magistrates) and a convening superior authority (for courts martial) (see the General Outline of this Bill).

Item 25 - Subsection 3(1) (definition of Schedule 1A offence )

117.           This item repeals the definition of ‘Schedule 1A offence’.  The current restrictions on the right to elect to be tried by court martial or Defence Force magistrate instead of a summary authority, including if a person has been charged with an offence under Schedule 1A, have been removed.  This reflects the new role of courts martial or Defence Force magistrates in the new military justice system.     Under the new system, all accused brought before a summary authority will have the right to elect to be tried by the Military Court for all offences, with the exception of custodial offences or offences ancillary to custodial offences.

Items 26 and 27 - Subsection 3(1) (subparagraph (b)(ii) of the definition of service offence ); (paragraph (c) of the definition of service offence )

118.           These items remove the reference to ‘old system offence’ from the definition of ‘service offence’ to reflect the discontinuance of the old service offence provisions and update the punctuation accordingly (see the General Outline of this Bill).

Item 28 - Subsection 3(1) (at the end of the definition of service offence )

119.           This item inserts a note after the definition of ‘service offence’ to make reference to new section 3A, which provides that a service offence is an offence against a law of the Commonwealth, but is not an indictable offence .

Item 29 - Subsection 3(1) (definition of unfit to be tried )

120.           This item inserts a definition of ‘unfit to be tried’, and provides for that term to include unfit to plead.

Item 30 - Subsection 3(15) Interpretation

121.           This item repeals subsection 3(15), which provides that an offence against the Defence Force Discipline Act 1982 or the regulations is not an offence against a law of the Commonwealth.  This amendment is a consequence of the insertion of new section 3A (see Item 31 in Schedule 1 of this Bill).

Item 31 - After Section 3 (Character of service offences)

122.           This item inserts a new section 3A which states that for the purposes of any law of the Commonwealth, other than this Act or the regulations, a service offence is an offence against the law of the Commonwealth.  The purpose of new section 3A is to invoke the application of Commonwealth Acts that are expressed to apply to an offence against the law of the Commonwealth, for example, the Crimes Act 1914 and the National Security Information (Criminal and Civil Proceedings) Act 2004 .  Section 3A also makes service offences not indictable offences.  An effect of this is to provide that service offences are not to be tried by jury, even when they are being heard by the Military Court.

Item 32 - After Paragraph 5A(a) Appointment of superior authority

123.           This item includes additional responsibilities for superior authorities to refer charges to a Defence Force magistrate or convene courts martial when directed to do so by the DMP under various provisions in the Defence Force Discipline Act 1982 .  This reflects the superior authorities’ absorption of the functions of the RMJ, whose office will be discontinued in the new military justice system (see the General Outline of this Bill).

Item 33 - After section 6 Chaplains-notional rank

124.           This item outlines the notional rank for chaplains for the purposes of the Defence Force Discipline Act 1982 .  These provisions are currently contained in regulation 32 of the Defence Force Discipline Regulations 1985 .

125.           For the purposes of the Military Court, this amendment is necessary to enable the court to determine what punishment it can impose under Division 3 of Part 9 of the Military Court Act if the court has tried and convicted a chaplain of a service offence.    Punishments under Division 3 of Part 9 of the Military Court Act include reduction in rank or forfeiture of seniority.

Item 34 - Subsection 7(1) Prisoners of war

126.           This item amends subsection (1) to provide for the Military Court Act, its rules and regulations, applying in relation to prisoners of war.  This ensures that prisoners of war who commit serious service offences under the Defence Force Discipline Act 1982 can be effectively tried in the Military Court.

Item 35 - Section 10

127.           Section 10 provides that Chapter 2 of the Criminal Code (general principles of criminal responsibility) applies to all service offences, other than ‘old system offences’.  This item removes the reference to ‘old system offences’ in section 10 to reflect the discontinuance of old system offence provisions (see the General Outline of this Bill).

Item 36 - Subsection 11(4) Recklessness and negligence in relation to a member of the Defence Force

128.           Subsection 11(4) provides that section 11 does not apply to old system offences.  This item repeals subsection 11(4) to reflect the discontinuance of old service offence provisions (see the General Outline of this Bill). This subsection is no longer necessary given the reference to ‘old system offences’ has been removed from the definition of ‘service offence’ by items 26 and 27.

 

 

Item 37 - Subsection 63(1) Consent for proceedings of certain offences

129.           This item extends the requirement to obtain the consent of the CDPP to institute proceedings for certain offences against section 61, to include proceedings to be instituted in the new Military Court.

Item 38 - Section 65 Maximum punishment for old system offence

130.           This item repeals section 65 to reflect the discontinuance of old system offence provisions (see the General Outline of this Bill).

Item 39 - Subsection 66(1) Punishment or order to be in respect of a particular conviction

131.           This item amends subsection 66(1) by inserting the words ‘by a service tribunal’ after ‘particular conviction’ to make clear that punishments or orders imposed by a service tribunal must be imposed in respect of convictions by service tribunals (rather than convictions by the Military Court).

Item 40 - Subsection 67(1) Authorised punishments

132.           This item amends subsection 67(1) to make clear that the subsection concerns only convictions by courts martial or Defence Force magistrates.  It reflects the policy that courts martial and Defence Force magistrates can only impose punishments in respect of convictions made by courts martial and Defence Force magistrates (as opposed to convictions by the Military Court).

Item 41 - Subsection 67(2) Authorised punishments

133.           This item amends subsection 67(2) to make clear that the subsection concerns only convictions by summary authorities.  It reflects the policy that summary authorities can only impose punishments in respect of convictions made by summary authorities (as opposed to convictions by the Military Court).

Item 42 - Paragraph 70(1)(a) Sentencing principles

134.           This item replaces the term ‘civil court’ with ‘civil courts in relation to a civil court offence’.  The intent of this amendment is to direct a service tribunal to have regard to the sentencing principles used by civil courts who do not hear service offences.  Clause 139 of the Military Court of Australia Bill imports the sentencing principles of the Defence Force Discipline Act 1982 for matters in the Military Court.

Item 43 - Paragraph 74(2)(b) Concurrent or cumulative punishments

135.           This item amends paragraph 74(2)(b) by inserting ‘imposed by a service tribunal or the Military Court’ after the first occurring reference to a ‘prescribed punishment’.  With the establishment of a new Military Court to hear service offences, there is a possibility that a service tribunal could be imposing a punishment on a person who has already been convicted by the Military Court and on whom the Military Court has imposed punishment.  This amendment is necessary to provide that the punishments (which will be of different kinds) are to be concurrent, irrespective of whether they were both imposed by a service tribunal or whether the earlier punishment was imposed by the Military Court.

136.           Among the prescribed punishments in subsection 74(1), the only punishments which the Military Court can impose are imprisonment and detention.  If the Military Court imposes imprisonment, the person will be dismissed from the ADF in accordance with subclause 141(1) of the Military Court of Australia Bill.  That person would not be able to commit another service offence and the concurrency of a punishment of imprisonment could not arise.  In practice, therefore, the only prescribed punishment imposed by the Military Court to which paragraph 74(2)(b) will apply is detention.

Item 44 - Paragraph 74(2)(c) Concurrent or cumulative punishments

137.           This item amends paragraph 74(2)(c) by inserting ‘imposed by a service tribunal’ after the first occurring reference to a ‘prescribed punishment’.  As a service tribunal is unable to revoke a suspended punishment imposed by the Military Court (whether in whole or in part), the paragraph will only have application when both punishments are being imposed by a service tribunal.

Item 45 - Paragraph 74(4)(b) Concurrent or cumulative punishments

138.           This item amends paragraph 74(4)(b) by inserting ‘imposed by a service tribunal or the Military Court’ after the first occurring reference to a ‘prescribed punishment’.  This amendment is necessary to provide that the punishments (which will be of the same kind) imposed are to be cumulative, irrespective of whether they were both imposed by a service tribunal or whether the earlier punishment was imposed by the Military Court.

139.           For the reasons outlined above in Item 43, the only prescribed punishment imposed by the Military Court to which paragraph 74(2)(b) will apply is detention.

Item 46 - Paragraph 74(4)(c) Concurrent or cumulative punishments

140.           This item amends paragraph 74(4)(c) by inserting ‘imposed by a service tribunal’  after the first occurring reference to a ‘prescribed punishment’.  This amendment is necessary to provide that the punishments (which will be of the same kind) imposed are to be cumulative.  The amendment reflects the fact that a service tribunal is unable to revoke a suspended punishment (whether in whole or in part) imposed by the Military Court.

Item 47 - Paragraph 74(4A)(a) Concurrent or cumulative punishments

141.           This item amends paragraph 74(4A)(a) by inserting ‘imposed by a service tribunal’ after the first occurring reference to ‘prescribed punishment’.  This amendment is necessary to provide that the punishments (which will be of different kinds) imposed are to be concurrent.  The amendment reflects the fact that a competent reviewing authority, or service tribunal is unable to revoke, or recommend revocation of, a suspended punishment (whether in whole or in part) imposed by the Military Court.

142.           This item clarifies that the ability to revoke a suspended punishment and impose another punishment contemplated in paragraph 74(4A)(a) only arises when the first prescribed punishment was imposed by a service tribunal.

Item 48 - Paragraph 74(4B)(a) Concurrent or cumulative punishments

143.           This item amends paragraph 74(4B)(a) by inserting ‘imposed by a service tribunal’ after the first occurring reference to ‘prescribed punishment’.  This subsection allows a reviewing authority to order that the punishments (which will be of the same kind) imposed can be cumulative when considering whether to revoke a prescribed punishment and on recommendation that the punishments be cumulative.  The amendment reflects the fact that a competent reviewing authority, or service tribunal is unable to revoke, or recommend revocation of, a suspended punishment (whether in whole or in part) imposed by the Military Court by making it clear that, for this paragraph to apply, the earlier prescribed punishment can only have been made by a service tribunal.

Item 49 - Paragraph 74(6)(a) Concurrent or cumulative punishments

144.           This item amends paragraph 74(6)(a) by inserting ‘imposed by a service tribunal or the Military Court’ after ‘detention’.  This is to clarify that paragraph 74(6)(a) applies to set the commencement time for the later punishment of detention at the end of the period of detention relating to the earlier punishment, irrespective of whether the earlier punishment was imposed by a service tribunal or the Military Court.

Item 50 - After subsection 76(1) Breach of undertaking to be of good behaviour

145.           This item inserts a new subsection 76(1A) to provide that if the Military Court convicts a person of a service offence during a period in which that person has undertaken to a summary authority to be of good behaviour, a summary authority of the same kind as the one to which the undertaking was given may take action under Part IV (Punishments and orders) of the Defence Force Discipline Act 1982 in relation to the person for the first offence.  The definition of ‘summary authority’ in subsection 3(1) provides that there are three kinds of summary authority: a superior summary authority, a commanding officer or a subordinate summary authority.

Item 51 - Subsection 76(2) Breach of undertaking to be of good behaviour

146.           This item amends subsection 76(2) to reflect the insertion of subsection 76(1A) under Item 50 in Schedule 1 of this Bill to provide that a service tribunal, before taking action under subsection 76(1), must hear evidence relevant to the determination it is to make about the conviction of the offence in relation to which the breached good behaviour undertaking was given.

Item 52 - Section 77(3)(c) Taking other offences into consideration

147.           This item amends paragraph 77(3)(c) to prevent admissions made to a court martial or Defence Force magistrate under section 77(1)(c) of the Defence Force Discipline Act 1982 from being admissible as evidence in the Military Court where those admissions were not taken into account in the court martial or Defence Force magistrate trial.

Item 53 - Subsection 80(1) Revocation of suspension of punishment

148.           This item amends subsection 80(1), which provides for the revocation of suspension of punishments, to clarify that only punishments imposed under the Defence Force Discipline Act 1982 (by a service tribunal) can be revoked, while punishments imposed by the Military Court cannot be revoked.  This restriction is necessary as it is not possible for a service tribunal to revoke the suspension of any punishment imposed by the Military Court.

Items 54, 55 and 56 - Paragraph 81(1)(a), Subsection 81(2) and Subsection 81(3) Remission of suspended punishment

149.           These items amend paragraph 81(1)(a), and subsections 81(2) and 81(3), to limit the application of section 81 to the remission of suspended punishments imposed under the Defence Force Discipline Act 1982 (by a service tribunal), and not to those imposed by the Military Court.

Item 57 - Section 82 Remission of punishment of detention on imprisonment

150.           This item repeals section 82 and substitutes a new section 82.  The new section 82 ensures that a punishment of detention, whether imposed by the Military Court or a service tribunal (and whether suspended or not) will be remitted if the convicted person is subsequently sentenced to imprisonment.  This is because if a person is sentenced to imprisonment, they will also be dismissed from the ADF, making it inappropriate and impracticable to continue to detain them in an ADF detention facility.

Item 58 and 59 - Section 87 (heading) and Subsections 87(1) and (1A) Power to charge person with service offence and issue summons etc

151.           This item repeals subsections 87(1) and (1A) and substitutes new subsections 87(1) and (1A).  The new subsections maintain the current ability of the DMP to refer charges to a summary authority.  They confer additional ability for the DMP to commence proceedings in the Military Court.  The exception to this is subsection 87(1B), which provides that the DMP must not commence proceedings in relation to a custodial offence in the Military Court.

152.           Custodial offences are set out in Division 6A of Part III of the Defence Force Discipline Act 1982 and are offences committed while the person is being detained in an ADF detention facility.  These include conduct such as making unnecessary noise and committing a nuisance.  Custodial offences, given their less serious nature, are to be exclusively tried by summary authorities.

153.           The new subsections remove the ability of the DMP to request the RMJ to convene a court martial or refer charges to a Defence Force magistrate.  This is because the office of the RMJ is to be abolished.  Courts martial and Defence Force magistrates will only be used when proceedings have been commenced in the Military Court, and the Military Court determines that it is necessary to sit overseas to hear and determine a matter, but it is not possible for it to do so (see General Outline of this Bill and clause 51 of the Military Court of Australia Bill 2012).

154.           The new subsections retain the current ability of authorised members of the Defence Force (along with the DMP) to charge defence members with service offences, cause a copy of the charge to be given, and order their appearance before a commanding officer or subordinate summary authority.  The new subsections also retain the ability of authorised members of the Defence Force to summon the person (whether a defence member or not) to appear before a commanding officer.

155.           However, the current ability of authorised members of the Defence Force to refer charges to a summary authority or, to the RMJ to convene a court martial or, refer charges to a Defence Force magistrate will not be retained, nor will they be given additional ability to refer charges to a Military Court.  This will be the sole responsibility of the DMP.

Item 60 - Subsection 87(6) Power to charge person with service offence and issue summons etc

156.           This item repeals existing subsection 87(6) and inserts a new subsection 87(6) which provides that a proceeding must not be instituted against a person in respect of a service offence except as provided by the Defence Force Discipline Act 1982 or the Military Court of Australia Act 2012 .  This provision is intended to prevent any private prosecutions or any civil authority from instituting proceedings for service offences.

157.           This item also renumbers as subsection 87(7) the current subsection 87(6), which defines ‘authorised member of the Defence Force.’  This definition is amended to reflect the movement of the DMP’s powers into Division 2 of Part VII of the Defence Force Discipline Act 1982 .

Item 61 - After section 87 Notice of right to elect to have charge tried by the Military Court

158.           This item inserts a new section 87A, after section 87, which places an obligation on the DMP or an authorised member of the Defence Force to notify in writing a person who has been charged with a service offence that the person may elect to have the charge tried by the Military Court.  The notice must also contain information regarding the period in which an election may be made, the right to obtain legal advice, how an election may be made, and the right to withdraw an election.  Subsection 87A(3) excludes the obligation to notify persons charged with a prescribed offence or a custodial offence.

159.           Prescribed offences are defined in section 104, and are generally service offences with serious criminal law equivalents such as murder, manslaughter and sexual assault.  These prescribed offences are outside the jurisdiction of a summary authority and hence an election is not offered.  Custodial offences may not be tried by the Military Court and therefore an election to have them tried by the Military Court is also not available.

Item 62 - Subsection 88(1) Arrest, summons etc. where accused person not present at hearing before service tribunal

160.           This item removes the reference to the RMJ, reflecting the discontinuance of this position under the new military justice system (see the General Outline of this Bill).

Item 63 - Subsection 88(1A) Arrest, summons etc. where accused person not present at hearing before service tribunal

161.           This item repeals subsection 88(1A), which provides that the RMJ may carry out an action under subsection 88(1) on the direction of a judge advocate or a Defence Force magistrate.  This amendment is necessary to reflect the discontinuance of the position of the RMJ (see the General Outline of this Bill).

Item 64 - Section 90 Arrest under warrant

162.           This item replaces the references to ‘authorized officer’ with ‘issuing officer’ in section 90.  As ‘issuing officer’ will be defined to mean ‘authorized officers’ and judicial officers of the Military Court (see Item 14 in Schedule 1 of this Bill), this amendment will allow judicial officers of the Military Court to issue warrants for arrest under the Defence Force Discipline Act 1982 .

Item 65 - Subsections 95(3) to 95(9) Avoidance of delay after arrest

163.           This item repeals the current subsections 95(3) to 95(9) and substitutes them with new subsections 95(3) to 95(9).

164.           Subsection 95(3) merges current subsection 95(3) (with no substantive amendment) with the first part of current subsection 95(4) (with substantive amendment).  It requires that if a person is charged with a service offence, the commanding officer must, as soon as practicable, cause a copy of the charge to be given to the person, consistent with the current requirement in current subsection 95(3).

165.           It then requires the commanding officer to either cause proceedings to be commenced to deal with the charge or to refer the charge to the DMP.  Under section 110, a commanding officer may deal with the charge by making a decision to try the charge, referring the matter to another commanding officer, referring the charge to a superior summary authority, or directing that the matter not be proceeded with.  If the charge is referred to the DMP, the DMP may take any action under section 103, which includes the option of instituting proceedings in the Military Court.  This new option of referring the charge to the DMP is necessary as a commanding officer cannot institute proceedings in the Military Court.  This power is exclusive to the DMP.

166.           Subsection 95(4) makes no substantive amendment to the requirement in the second part of existing subsection 95(4), but reflects that the first part of the current subsection 95(4) has been moved into the new subsection 95(3).  New subsection 95(4) requires that if the commanding officer does not cause proceedings to be commenced to deal with the charges or refer the charges to the DMP within 48 hours after the accused person has been delivered in to their custody, they must provide a report in writing to a superior authority and the DMP on his or her reasons for failing to comply with the time requirements in dealing with the charge.

167.           Subsection 95(5) provides that if a person makes an election under Division 1 of Part VII to have the charges against them tried by the Military Court, prior to the commanding officer causing proceedings to be commenced to deal with the charge or referring the charges to the DMP, the commanding officer must not cause proceedings to be commenced, and must refer the charges to the DMP.  The note to the subsection indicates that the DMP may deal with the charge under new section 103A (which applies where the accused person has elected to be tried by the Military Court).  This new provision is necessary as accused persons, who would otherwise be dealt with by summary authority, will have the right to elect to be tried by the Military Court under the new military justice system.

168.           Subsection 95(6) reproduces the existing subsection 95(5) in slightly modified form, to clarify the existing requirements under that subsection.  Under subsection 95(6), if an accused person remains in the custody of the commanding officer for a period of eight days or more without proceedings being commenced, the commanding officer must report, in writing, to a superior authority and the DMP, the reasons why proceedings have not been commenced to deal with the charge at the end of the first eight day period of such custody, and at the end of each subsequent eight day period of such custody.

169.           The note to new subsection 95(6) clarifies that this reporting requirement applies even if the commanding officer is not required to cause proceedings to be commenced to deal with the charge against the person.  This situation may occur if the commanding officer has referred, or still needs to refer, charges to the DMP who then has the responsibility to cause proceedings to be formally commenced.  In these cases, the purpose of this reporting requirement on the commanding officer is to provide a clear means by which to regularly inform both the DMP and the superior authority that an accused person remains in custody and that action needs to be taken to cause proceedings to be commenced.

170.           Subsections 95(7) reproduces the existing subsections 95(7), with reformatting to make the provision easier to read.

171.           Subsection 95(8) requires that, if an accused person remains in custody for a period of 30 days or more without proceedings being commenced to deal with the charge against the person, the superior authority to whom reports have been made about delay under earlier subsections must notify the DMP and the Chief of Defence Force (or service chief or authorised officer) of the reasons why proceedings have not been commenced.  This reporting requirement will apply at the end of the first 30 days of such custody, and at the end of each subsequent 30 days period of such custody.

172.           Subsection 95(9) requires that, where the CDF, service chief or authorised officer receives a report under subsection 95(8), they must order the release of the accused person unless this is not reasonably practicable due to the exigencies of service.

173.           The purpose of these provisions is to ensure a person, who has been taken into custody, is brought before a court or service tribunal as quickly as possible, while recognising the exigencies of service may hinder this for a period of time.  This may include where it would not be possible for a period of time to try the person or accompany the person to a location where the person may be brought before the court.

174.           The subsections have also been amended to update cross-references, and reformatted to make them easier to read.

Item 66 - Subsection 96(5) Time limitation on charges

175.           This item repeals subsection 96(5), which imposes a time limitation on the trial of old system offences, to reflect the repeal of old system offence provisions (see the General Outline of this Bill).

Items 67 and 68 - Subsection 101F(2) Lists of legal officers

176.           These items replace references to the ‘Chief of the Defence Force’ (CDF) with the ‘DDCS’ in subsection 101F(2).  This amendment reflects the transfer of responsibility for the maintenance of the list of legal officers who are willing to assist persons in custody at, or in the vicinity of, the prescribed place under section 101F from the CDF to the DDCS who is better placed to make and update the list.

177.           Amendments are being made to the Defence Act 1903 by this Bill to provide statutory recognition to the office of the DDCS.

Item 69 - Subsection 101F(2A) Lists of legal officers

178.           The item repeals subsection 101F(2A), which allows for the CDF to delegate his or her responsibility for maintaining the list of legal officers in subsection 101F(2).  The repeal of subsection 101F(2A) reflects the fact that the CDF will no longer maintain the list of legal officers.

Item 70 - Section 101X Search warrants

179.           This item replaces the references to ‘authorized officer’ with ‘issuing officer’ in section 101X.  As ‘issuing officer’ is defined to mean authorized officers and judicial officers of the Military Court (see Item 14 in Schedule 1 of this Bill), this amendment will allow judicial officers of the Military Court to issue search warrants under the Defence Force Discipline Act 1982 .

Item 71 - Section 101Y Search warrants may be granted by telephone

180.           This item replaces the references to ‘authorized officer’ with ‘issuing officer’ in section 101Y.  As ‘issuing officer’ is defined to mean authorized officers and judicial officers of the Military Court (see Item 14 in Schedule 1 of this Bill), this amendment will allow judicial officers of the Military Court to issue search warrants by telephone under the Defence Force Discipline Act 1982 .

Item 72 - Part VII (heading) Pre-trial matters

181.           This item repeals the heading to Part VII ‘Service Tribunals’ and replaces it with a new heading ‘Pre-trial matters’.  Most of the provisions in this Part that relate to courts martial and Defence Force magistrate trials have been moved to the new Schedule 3B.  This is to reflect the restricted operation of courts martial and Defence Force magistrates under the new military justice system.  Provisions relating generally to service tribunals (courts martial, Defence Force magistrates and summary authorities) are retained in this Part.  As this Part also includes new provisions for electing to be tried by the Military Court, it is more accurately characterised as a Part relating to pre-trial matters, rather than service tribunals .

Item 73 - Division 1 of Part VII Election by accused person for trial by Military Court and Division 2 of Part VII Powers of the Director of Military Prosecution

182.           This item repeals ‘Division 1—Director of Military Prosecutions’ and substitutes it with a new ‘Division 1— Election by accused person for trial by Military Court’ and a new ‘Division 2—Powers of the Director of Military Prosecutions’ .

183.           New Division 1 provides a right for ADF members charged with a service offence before a summary authority to elect to have the charges against them tried by the Military Court.  This election becomes available from the moment the ADF member is charged until they are required to enter a plea at the summary authority trial.

184.           New section 102 provides that the right to elect to have a charge tried by the Military Court under Division 1 instead of by a summary authority does not apply in relation to a charge of a prescribed offence (within the meaning of section 104) or a custodial offence.  The notes to this section explain that this is because a summary authority does not have jurisdiction to try a charge of a prescribed offence (see sections 106, 107 and 108), and the Military Court does not have jurisdiction to try a charge of a custodial offence (see subsection 63(2) of the Military Court Act).

185.           Prescribed offences are defined in section 104, and are generally service offences with serious criminal law equivalents, such as murder, manslaughter and sexual offences.  Prescribed offences are always to be tried by the Military Court (or the residual court martial or Defence Force magistrate system). 

186.           Custodial offences are provided for in Division 6A of Part II of the Defence Force Discipline Act 1982 and are offences committed while the person is being detained in an ADF detention facility.  These offences include conduct such as making unnecessary noise and committing a nuisance.  Custodial offences, given their less serious nature, are exclusively tried by summary authorities.

187.           New subsection 102A(1) provides that an accused person may, in accordance with new subsection 102A(3), elect to have a charge against them tried by the Military Court.  An exception to this is provided in subsection 102A(2), where the DMP has instituted a proceeding in respect of the charge in the Military Court, and the proceeding has not been discontinued.

188.           New subsection 102A(3) provides that an election must be made by notifying the DMP in writing.  The note states that the DMP may direct that the charge be not proceeded with or institute a proceeding in respect of the charge in the Military Court. 

189.           New subsection 102A(4) provides that if an accused person is charged with two or more service offences, which arise from the same facts or circumstances, and the accused person elects for one or more of those charges to be tried by the Military Court, the election is taken to relate to all the charges.  This is to avoid inconsistent findings by a summary authority and the Military Court hearing separate proceedings relating to the same facts or circumstances.

190.           New subsection 102A(5) provides that the right to elect to be tried by the Military Court will be available to all accused persons at any time after he or she is charged (under section 87 of the Defence Force Discipline Act 1982 ) and before the person is required to enter a plea before a summary authority at trial.  If the person is before a summary authority because a reviewing authority has ordered a re-trial, they will have the opportunity to elect to instead be tried by the Military Court.  This election can be made after the person is given written notice of the review but before the person is required to enter a plea to the charge at the new trial.

191.           New subsection 102A(6) provides that the accused person must not be required to enter a plea to the charge within the first 24 hours after the person is charged or given written notice of the review (whichever is applicable).  The effect of these amendments is that the accused person will have at least 24 hours after they have been charged or they become aware that a re-trial has been ordered to make an election.

192.           An accused person who does not elect to have their charge(s) tried by the Military Court before the time specified is taken to have decided not to elect to have their charge(s) tried by the Military Court, and will be dealt with by a summary authority.  An accused person who pleads guilty to the charges and applies under subsection 139(3) to not be present at a trial by a summary authority is taken to have decided not to elect to have their charge(s) tried by the Military Court.

193.           New subsection 102A(7)  provides that an accused person must be given an opportunity to obtain legal advice in relation to making an election if a legal officer is reasonably available to give such advice.

194.           New section 102B allows the accused to withdraw an election to have a charge tried by the Military Court, by written notice to the DMP, if the DMP has not instituted a proceeding in respect of the charge in the Military Court.  The note to this section states that the DMP may deal with the charge under section 103A, which includes the power to refer a charge to a summary authority.

Division 2 Powers of the Director of Military Prosecutions

195.           New Division 2 sets out the powers of the DMP as provided for in new sections 103, 103A, 103B, 103C, 103D, 103E and 103F, as inserted by this item.

196.           New subsection 103(1) expands the existing subsection 103(1) list of provisions under which a charge may be referred to the DMP.  These additional provisions are subparagraph 95(3)(b)(ii), sections 145 or 146, subsections 158A(1) and 164(3), and Clause 34 of Schedule 3B .

197.           Subparagraph 95(3)(b)(ii) provides that if a person is charged with a service offence, the commanding officer must, as soon as practicable, refer the charge to the DMP (see Item 65 in Schedule 1 of this Bill). 

198.           The reference to subsection 145(1) has been replaced with a reference to section 145 as a consequence of the repeal that section and the substitution of a new section 145 under Item 100 in Schedule 1 of this Bill.  Section 145 provides that if it appears to the summary authority that the accused person may be unfit to stand trial, the summary authority must refer the charge to the DMP.  Section 146 provides that, if evidence is adduced in a trial by summary authority that a person was suffering mental impairment so as not to be responsible for the conduct, the summary authority must refer the charge to the DMP.

199.           Subsection 158A(1) provides that if a reviewing authority quashes a conviction on the basis that the person was unfit to stand trial, the reviewing authority is required to refer the charges to the DMP (see Item 120 in Schedule 1 of this Bill).  Subsection 164(3) provides that if, on review of a prescribed acquittal, the reviewing authority finds the person unfit to stand trial, they must refer the matter to the DMP (see Item 130 in Schedule 1 of this Bill).

200.           Clause 34 of Schedule 3B provides that if it appears to a court martial or Defence Force magistrate that a person may not be able to understand the proceedings against him and accordingly may be unfit to stand trial, they must refer the matter to the DMP (see Item 165 in Schedule 1 of this Bill).

201.           The existing reference to subsection 194(7) is removed as a consequence of Item 160 in Schedule 1 of this Bill, which repeals section 194. 

202.           New subsection 103(2) sets out the courses open to the DMP when a charge is referred to him or her.  It retains the DMP’s ability, under current subsection 103(1), to direct that the charges not be proceeded with, or refer charges to a summary authority for trial.  It also includes new options for the DMP to institute proceedings in the Military Court and to refer the charge to a commanding officer with jurisdiction under section 107 to try the charge (see Item 79 in Schedule 1 of this Bill). 

203.           The subsection removes the DMP’s ability to request the RMJ to refer the charge to a Defence Force magistrate or convene a court martial.  This reflects the abolition of the position of RMJ.  In addition, new section 103C will provide that the DMP can only direct a superior authority to refer the charge to a Defence Force magistrate or convene a court martial to try the charge if a charge is taken to have been withdrawn from the Military Court under paragraph 61(5)(d) of the Military Court Act (see below).

204.            New subsection 103(3) provides that the DMP must not refer charges back to a superior summary authority or commanding officer where an accused person has elected for trial by the Military Court, or when the charge was referred to the DMP by a service tribunal or reviewing authority because it appeared that the accused person was unfit to stand trial or evidence was adduced of mental impairment.

205.           New subsection 103(4) provides that the DMP must not institute a proceeding in respect of a custodial offence in the Military Court.  The note to this subsection explains that the Military Court does not have jurisdiction to try a charge of a custodial offence.

206.           New subsection 103(5) includes a deeming provision in circumstances where a conviction (under subsection 158A(1)) or a prescribed acquittal (under subsection 164(3)) is quashed by a reviewing authority, and referred to the DMP on the basis that the accused person appears unfit to stand trial.  If the DMP does not direct that the charges not be proceeded with, or does not initiate proceedings in the Military Court within two months, the DMP is taken to have directed that the charge not be proceeded with.  This provides a level of finality in proceedings for  the benefit of the accused person.

207.           New section 103A provides that if an accused person elects to have their charge tried by the Military Court (instead of by a summary authority) under Division 1 of Part VII, the DMP can direct that the charges not be proceeded with, or institute proceedings in respect of the charge in the Military Court. If an accused person elects to have their charge tried by the Military Court, and subsequently withdraws that election (under section 102B), the DMP may direct that the charge not be proceeded with, or refer the charge to a summary authority or commanding officer, or institute proceedings in the Military Court.

208.           New section 103B provides that if, in a review of a court martial or Defence Force magistrate proceeding, a reviewing authority orders, under sections 160 or 166, a new trial of a person (on quashing a conviction or prescribed acquittal on review), the DMP may direct that the charge be not proceeded with or, if the DMP is satisfied there is sufficient cogent evidence to justify a new trial of the person, institute proceedings in the Military Court.

209.           The court martial and Defence Force magistrate system is intended as a backup system for when the Military Court determines that it is necessary, but not possible, to sit overseas.  If a new trial is ordered, it is appropriate there be an option for a new trial in the Military Court.  This allows the Military Court to again consider if it is both necessary and possible for it to sit overseas.

210.           New section 103C will apply where the Military Court makes a determination under  paragraph 61(5)(d) of the Military Court Act that it is necessary, but not possible, to sit outside Australia.  Under that Act, the charges will be taken to have been withdrawn from the Military Court.  Under new section 103C, the DMP may then direct a superior authority to convene a court martial or refer the charges to a Defence Force magistrate for trial under Schedule 3B of the Defence Force Discipline Act 1982 .  The note to this section explains that if the DMP directs a superior authority to refer the charge to a Defence Force magistrate for trial, clause 22 of Schedule 3B requires the charge to be referred to the Defence Force magistrate nominated by the Judge Advocate General.

211.           The DMP may also refer the charge to a superior summary authority with jurisdiction under section 106 to try the charge, or a commanding officer with jurisdiction under section 107 to try the charge.  Subsection 103C(3) prevents the DMP from referring the charge to a superior summary authority or a commanding officer if the accused person had made an election under Division 1 to have the charge tried by the Military Court.

212.           If circumstances have changed since the charge was taken to have been withdrawn from the Military Court, the DMP has the option of instituting a new proceeding in the Military Court (paragraph 103C(2)(d)).  For example, the location of the accused or availability of the witnesses may have changed such that it is now possible that the Military Court could hear the matter in Australia.

213.           New section 103D applies to charges that have been discontinued in the Military Court by the DMP.  The DMP will have the option of directing that the charges not be proceeded with or instituting proceedings in the Military Court.  The DMP may also refer the charge to a superior summary authority with jurisdiction under section 106, or a commanding officer with jurisdiction under section 107, to try the charge.  Subsection 103D(3) provides that the DMP must not refer the charge to a superior summary authority or a commanding officer if the accused person has made an election under Division 1 to have the charge tried by the Military Court. The institution of proceedings in the Military Court would likely only occur if circumstances have changed since the earlier discontinuance.

214.           New section 103E sets out the options for the DMP where a court martial is dissolved or the reference to a Defence Force magistrate is terminated.  Clauses 19 and 31 of new Schedule 3B provide for dissolution of a court martial or termination of a reference to a Defence magistrate (see Item 165 in Schedule 1 of this Bill).     In this circumstance, it will be open to the DMP to direct that the charges not be proceeded with; to refer the charges to a superior summary authority or a commanding officer to try the charge; or to direct a convening superior authority to refer the charges to a Defence Force magistrate or convene a court martial.   The DMP could also institute proceedings in the Military Court.

215.           New subsection 103E(3) prevents the DMP from referring charges to the summary jurisdiction where the accused has made an election to be tried in the Military Court.

216.           New subsections 103E(4) and (5) apply where an application to dissolve a court martial or terminate a reference to a Defence Force magistrate and instead have the charges tried before the Military Court (under clauses 20 and 32 of new Schedule 3B) is successful.  In those circumstances, the DMP will have the option to direct that the charges not be proceeded with, or refer the charges to the Military Court.  There will not be the option to have the charges tried by a service tribunal under Schedule 3B.

217.           New section 103F applies if the Military Court orders that a conviction or a prescribed acquittal imposed by a court martial or Defence Force magistrate be set aside on appeal to the Military Court.  This section allows the DMP to either direct that the charges not be proceeded with or initiate proceedings for a new trial in the Military Court.  The Military Court will then determine, under section 51 of the Military Court Act, whether it is both necessary and possible for it to sit overseas.  It is possible that circumstances may have changed which makes it possible for the Military Court to now hear the trial (whether in Australia or overseas).  Subsection 103F(3) deems that the DMP has directed charges against a person not be proceeded with, if the DMP does not within two months direct the charge not be proceeded with or institute proceedings in the Military Court.

Item 74 - Division 2 of Part VII (heading) Procedure of service tribunals

218.           This item repeals the heading for ‘Division 2 of Part VII—Summary authorities’ and inserts a new heading ‘Part VIII—Procedure of service tribunals’.  Existing Division 2 of Part VII (relating to summary authorities) will be merged into new Part VIII—Procedure of service tribunals’.  Division 1 of Part VIII will be headed ‘Summary authorities’.

Item 75 - Subsection 105A(3) Referral of charge to Director of Military Prosecutions before dealing with charge under section 109, 110 or 111

219.           This item removes the words ‘subject to paragraph 103(1)(b), if’ and substitutes it with ‘if’ in subsection 105A(3).  This is to reflect the new provisions setting out the powers of the DMP under Division 2 of Part VII. 

Item 76 - Subsection 105A(3) (note) Referral of charge to Director of Military Prosecutions before dealing with charge under section 109, 110 or 111

220.           This item repeals the note under subsection 105A explaining the effect of making the existing provision subject to paragraph 103(1)(b).  This is a consequence of the repeal of the reference to paragraph 103(1)(b) in section 105A by Item 75 in Schedule 1 of this Bill.

Item 77 - Section 106 Jurisdiction of superior summary authority

221.           This item renumbers section 106 as subsection 106(1) as a result of the insertion of a new subsection 106(2) by Item 78 in Schedule 1 of this Bill.

Item 78 - At the end of section 106 Jurisdiction of superior summary authority

222.           This item inserts a new subsection 106(2), which extends the jurisdiction of a superior summary authority to take action under Part IV (Punishments and orders) in relation to a person in the circumstances referred to in subsection 76(1A).  Under new subsection 76(1A), a person may be brought before a superior summary authority to be dealt with in circumstances where the person has breached an undertaking to be of good behaviour by committing a service offence that resulted in a conviction in the Military Court (see Item 50 in Schedule 1 of this Bill).  The note to this subsection states that a superior summary authority may be disqualified from taking such action because of subsection 108A(3) (see Item 82 in Schedule 1 of this Bill).

Item 79 - At the end of section 107 Jurisdiction of commanding officer

223.           This item inserts a new subsection 107(3).  This subsection extends the jurisdiction of a commanding officer to take action under Part IV (Punishments and orders) in relation to a person for a service offence in the circumstances referred to in   new subsection 76(1A).  New subsection 76(1A) provides that a person may be brought before a commanding officer for the purposes of taking action under Part IV (Punishments and orders) in circumstances where the person has breached an undertaking to be of good behaviour by committing a service offence that resulted in a conviction in the Military Court ( see Item 50 in Schedule 1 of this Bill ).  The note to this subsection states that a commanding officer may be disqualified from taking such action because of subsection 108A(3) (see Item 82 in Schedule 1 of this Bill).

Item 80 - After subsection 108(3) Jurisdiction of subordinate summary authority

224.           This item inserts a new subsection 108(3A), which extends the jurisdiction of a subordinate summary authority to take action under Part IV (Punishments and orders) in relation to a person in the circumstances referred to in new subsection 76(1A).  New subsection 76(1A) provides a person may be brought before a subordinate summary authority for the purposes of taking action under Part IV in circumstances where the person has breached an undertaking to be of good behaviour by committing a service offence that resulted in a conviction in the Military Court (see Item 50 in Schedule 1 of this Bill).  The note to this subsection states that a subordinate summary authority may be disqualified from taking such action because of subsection 108A(3) (see Item 80 in Schedule 1 of this Bill).

Item 81 - Section 108A (heading)

225.           This item repeals the heading for section 108A—Disqualification of summary authority from trying a charge, and inserts a new heading for section 108A—Disqualification of summary authority from trying a charge or taking action under Part IV.  This is consequential to the new subsection 108A(3) (Item 82 in Schedule 1 of this Bill).

Item 82 - At the end of Section 108A Disqualification of summary authority from trying a charge

226.           This item inserts a new subsection 108A(3), which provides a summary authority must not take action under Part IV (Punishments and orders) in relation to a person for a service offence in circumstances referred to in new subsection 76(1A), if because of subsection 108A(1), the summary authority would not have been permitted to try the charge of the service offence which resulted in the undertaking to be of good behaviour.

227.           Under subsection 108A(1), a summary authority must not try a charge of a service offence against a person if the summary authority was involved in the investigation of the offence, the issuing of a warrant for the arrest of the person, or charging the person with the offence.

Item 83 - Sections 111B and 111C Election by accused person to have charge tried by the Military Court

228.           This item repeals existing sections 111B and 111C and replaces them with a new section 111B.  Sections 111B and 111C provide for an accused person before a summary authority to elect to be tried by a Defence Force magistrate or a court martial.  However, these sections are replaced by the new provisions in Division 1 of Part VII, which allow the accused person to elect to be tried by the Military Court.   New section 111B compels the summary authority to refer any charges to the DMP if the accused makes an election under Division 1 of Part VII.  The note to this section states that the DMP will deal with the charge under section 103A, which includes the power to institute proceedings in the Military Court.

Item 84 - Divisions 3 Courts martial, 4 Defence Force magistrates and 5 Nomination of Defence Force magistrates and members of courts martial of Part VII

229.           This item repeals the existing Divisions 3, 4 and 5 of Part VII relating to courts martial (Division 3), Defence Force magistrates (Division 4) and the nomination of Defence Force magistrates and members of courts martial (Division 5). These provisions relate particularly to courts martial and Defence Force magistrates and have been moved to Schedule 3B of the Defence Force Discipline Act 1982 to reflect the residual operation of courts martial and Defence Force magistrates under the new military justice system. 

Item 85 - Part VIII (heading) Procedure of service tribunals

230.           This item repeals the heading ‘Part VIII— Procedure of service tribunals ’.   This heading will be the heading to Division 2 of Part VII (see Item 74 in Schedule 1 of this Bill).

Item 86 - Division 1 of Part VIII (heading) Trial by summary authority

231.           This item repeals the heading to Part VIII, ‘Division 1—Trial by summary authority’.  The provisions in this Division will, as amended, be in the new Division 1 of Part VIII.

Item 87 - Subparagraph 130(1)(a)(ii) Trial by summary authority

232.           This item amends subparagraph 130(1)(a)(ii) by removing the words ‘subject to subsection 131(3)’.  This is a consequence of the repeal of section 131 by Item 88 in Schedule 1 of this Bill.

Item 88 - Sections 131 Accused person may elect to be tried by a court martial or Defence Force magistrate-election during trial and 131AA Decision by accused person whether to elect to be tried by a court martial or Defence force magistrate-decision during trial

233.           These items repeal sections 131 and 131AA, which allow an accused person before a summary authority to elect to be tried by either a court martial or Defence Force magistrate during a trial.  This is because under the new Division 1 of Part VII, a person charged with any service offence that is within the jurisdiction of a summary authority will have the right to elect for trial by the Military Court from the time they are charged until the time they are required to enter a plea.  Once a plea is entered in a summary trial there can be no election by the accused, during the trial, for trial by the Military Court.

Item 89 - Section 131B Conviction by summary authority to have effect for service purposes only

234.           This item repeals section 131B, which provides that, if a person has been convicted by a summary authority of a service offence, it has effect for service purposes only, and the person is not required to disclose the offence for any other purpose.  The substance of section 131B will be contained in new section 190C (Item 157 in Schedule 1 of this Bill).  A conviction for a service offence before a summary authority will continue to be for service purposes only and will not be required to be disclosed other than for service purposes.

Item 90 - Division 2 of Part VII Trial by court martial or Defence Force magistrate

235.           This item repeals Division 2 of Part VII concerning the procedure for courts martial and Defence Force magistrate trials.  These provisions have been moved to Schedule 3B of the Defence Force Discipline Act 1982 to reflect the residual operation of courts martial and Defence Force magistrates under the new military justice system.

Item 91 - Subsection 139(1) Accused person to be present at hearing

236.           This item inserts ‘and Division 2 of Part 3 of Schedule 3B’ after ‘(5)’ in subsection 139(1).  Division 2 of Part 3 of Schedule 3B provides for a person to give a testimony or appear or make a submission by video link before a court martial or Defence Force magistrate.  This amendment will ensure that the requirement for the accused person to be present at a hearing before a service tribunal in subsection 139(1) is subject to, and therefore does not conflict with, the provisions in Division 2 of Part 3 of Schedule 3B.

Item 92 - Paragraph 139(4)(a) Accused person to be present at hearing

237.           This item repeals paragraph 139(4)(a) and replaces it with a new paragraph 139(4)(a).  The new paragraph 139(4)(a) applies where the accused has pleaded guilty to the charge.  It provides that the summary authority may only permit the accused person not to be present at the hearing if the authority is satisfied that the accused person was given an opportunity to obtain legal advice in relation to the right not to elect to be tried by the Military Court, was given 24 hours to enter a plea, and understands the effect of the plea.

Item 93 - Section 140 Public hearings

238.           This item repeals section 140, which provides that courts martial and Defence Force magistrate trials must be held in public.  As this provision relates particularly to court martial and Defence Force magistrate trials, it has been moved to Schedule 3B of the Defence Force Discipline Act 1982 to reflect the residual operation of courts martial and Defence Force magistrates under the new military justice system (see clause 33 inserted by Item 165 in Schedule 1 of this Bill).

Item 94 - Subparagraph 141(1)(b)(i) Applications and objections

239.           This item omits the reference to section 144 in subparagraph 141(1)(b)(i), and substitutes it with a reference to section 190A.  This amendment is a consequence of the repeal of section 144 (Item 99 in Schedule 1 of this Bill) and replacement with new section 190A (Item 157 in Schedule 1 of this Bill.  This item ensures that subparagraph 141(1)(b)(i) provides that, any time before an accused person is asked to plead at a trial by a service tribunal, the accused person may enter an objection to the charge on the ground that, by virtue of section 190A, he or she is not liable to be tried by a service tribunal for service offences with which he or she has been charged.  New Section 190A relates to previous acquittals or convictions.

Item 95 - Paragraph 141A(1)(b) Amendment of charges

240.           This item omits the reference to section 103 in paragraph 141A(1)(b), and substitutes it with a reference to Division 2 of Part VII.  This amendment is a consequence of the replacement of the powers of the DMP in existing section 103 with Division 2 of Part VII.  This item ensures that under paragraph 141A(1)(b), the DMP is allowed to amend a charge sheet at any stage when the charge is before him or her under Division 2 of Part VII.

241.           It is expected that, where charges are before the Military Court, the Military Court of Australia Rules will detail the process for making amendments to the charge sheet.  Likewise, where charges are tried by a court martial or Defence Force magistrate, the Courts Martial and Defence Force Magistrate Rules are expected to outline the processes and procedures for making amendments to the charge sheet.

Items 96, 97 and 98 - Subsection 142(1) Alternative offences

242.           These items repeal paragraph 142(1)(e), which makes provision for alternative offences in relation to old system offences, and amend the punctuation in paragraphs 142(1)(a),(b),(ba),(c) and (d) to reflect the repeal of paragraph 142(1)(e).  As all proceedings in respect of old system offences have been completed and no new proceedings for old system offences will be instituted, references to old system offences throughout the Defence Force Discipline Act 1982 are to be removed.

Item 99 - Section 144  Previous acquittal or conviction

243.           This item repeals section 144.  Section 144 generally provides that where a person has been acquitted or convicted of a service offence, the person is not liable to be tried for the same offence or for an offence that is substantially the same offence.  This section has been moved to Part XII (Miscellaneous) as new section 190A (see Item 157 in Schedule 1 of this Bill).  This is because new section 190A relates to the Military Court as well as courts martial and Defence Force magistrates and therefore, does not belong in Part VIII which relates only to the procedure of service tribunals.

Item 100 - Sections 145, 145A and 146 Unfitness to be tried and Mental impairment at time of conduct constituting service offence

244.           This item repeals sections 145 (unsoundness of mind), 145A (notice of alibi) and 146 (rules of evidence), and inserts new sections 145 and 146.

245.           Existing subsections 145(2), (4) and (5), and sections 145A and 146 relate particularly to court martial and Defence Force magistrate trials.  These provisions have been moved to Schedule 3B of the Defence Force Discipline Act 1982 to reflect the residual operation of courts martial and Defence Force magistrates under the new military justice system (see clauses 34, 35, 36, 37 inserted by Item 165 in Schedule 1 of this Bill).

246.           New sections 145 and 146 provide that, if it appears to a summary authority that a person may be unfit to stand trial, or evidence is adduced about the accused person suffering from mental impairment at the time of committing the offence, the authority must refer the charge to the DMP.  This is consistent with the requirements of the existing system.

247.           The notes to the new sections state that the DMP may deal with the charge under section 103.  The DMP powers under section 103 include the power to institute proceedings in the Military Court.  As the Military Court is replacing the courts martial and Defence Force magistrates system, issues of mental impairment before a summary authority are to be referred to the Military Court.

Item 101 - After subsection 146A(2) Evidence etc. in proceedings before a summary authority

248.           This item inserts a new subsection 146(2A) which provides that a summary authority must take judicial notice of all matters within the general service knowledge of the summary authority.  Subsection 146(2) is modelled on existing subsection 147(2).  This amendment is a consequence of Item 102 in Schedule 1 of this Bill, which repeals section 147.

Item 102 - Section 147 Judicial notice of service matters

249.           This item repeals existing section 147.  Subsection 147(1), which provides that a court martial or Defence Force magistrate must take judicial notice of all matters within the general service knowledge of the tribunal or its members, is moved to Schedule 3B to reflect the restricted operation of courts martial and Defence Force magistrates under the new military justice system (see subclause 37(2) in Item 165 in Schedule 1 of this Bill).  Subsection 147(2), which provides that a summary authority must take judicial notice of all matters within the general service knowledge of the summary authority, is replicated in subsection 146(2A) (see Item 101 in Schedule 1 of this Bill).

Item 103 - Subdivision B of Division 3 of Part VIII Use of video links and audio links by courts martial and Defence Force Magistrates

250.           This item repeals Subdivision B of Division 3 of Part VIII, which provides for the use of video links and audio links by courts martial and Defence Force magistrates.  The provisions in this subdivision will be moved to Schedule 3B of the Defence Force Discipline Act 1982 to reflect the residual operation of courts martial and Defence Force magistrates under the new military justice system.

Item 104 - Subdivision C of Division 3 of Part VIII (heading) Rules of procedure for summary tribunals

251.           This item repeals the heading of Part VIII, Division 3, Subdivision C—‘Rules of procedure for service tribunals’, and replaces it with ‘Rules of procedure for summary tribunals’.  This new title reflects that the rules of procedure relating to summary authorities will continue to be provided in the subdivision, but the rules of procedure for courts martial and Defence Force magistrates will instead be contained in new Schedule 3B of the Defence Force Discipline Act 1982 .

Item 105 - Section 149A The Court Martial and Defence Force Magistrate Rules

252.           This item repeals section 149A, which provides for the Judge Advocate General to make rules for courts martial and Defence Force magistrate trials.  This section will be moved to new Schedule 3B to reflect the residual operation of courts martial and Defence Force magistrates under the new military justice system (see clause 46 inserted by Item 165 in Schedule 1 of this Bill).

Item 106 - Subsection 152(1) Automatic review by reviewing authority

253.           This item repeals subsection 152(1) and substitutes it with a new subsection 152(1), which replaces the references to sections 145(2) and (5) with a reference to new subclause 35(1) of Schedule 3B (acquittal on the basis of mental impairment at the time of committing the offence).  Existing subsections 145(2) and (5) are repealed by Item 100 in Schedule 1 of this Bill

254.           This new subsection will also introduce a requirement for review of action taken under Part IV (Punishments and orders) where charges are referred to the relevant service tribunal for a breach of an undertaking of good behaviour because of a subsequent conviction by the Military Court (new subsection 76(1A)).

Item 107 - Subsection 152(3) Automatic review by reviewing authority

255.           This item repeals subsection 152(3), and substitutes it with a new subsection 152(3).  The new subsection replicates the requirement for the reviewing authority to give the person to whom the proceedings relate, and the service tribunal, a written notice of the results of the review.  However, it removes the reference to ‘subsection 145(2)’, as a consequence of the repeal of section 145 (see Item 100 in Schedule 1 of this Bill).

Item 108 - Subsection 153(1) Review on petition to reviewing authority

256.           This item repeals subsection 153(1) to reflect the new provisions under subclause 35(1) of Schedule 3B concerning mental impairment.  This subsection also introduces the ability for a person to review action taken under Part IV (Punishments and orders) when charges are referred to the relevant service tribunal for breach of an undertaking of good behaviour because of a subsequent conviction by the Military Court (new subsection 76(1A)).

257.           It also inserts a note which provides that this subsection is affected by clause 54 of new Schedule 3B, which deals with the effect of an appeal to the Military Court on a review of proceedings of a court martial or a Defence Force magistrate.

Item 109 - Subsection 153(1A) Review on petition to reviewing authority

258.           This item omits the reference to ‘within’ in subsection 153(1A) and substitutes it with ‘before the end of’.  This is to clarify that a person can lodge a petition for a section 153 review while the section 152 review is underway or, at any time up to the later of 30 days after the person is given notice of the results of the review under subsection 152(3), or the date on which an extension of time granted by the reviewing authority ends.

Items 110, 111 and 112 - Subsections 153(2), 153(3), 153(4) and 153(5) Review on petition to reviewing authority

259.           Items 110 and 112 repeal subsections 153(2) and (5), which relate to an accused person’s right to review under section 153 following a dismissal of leave to appeal to the DFDAT.  These amendments are consequential to the abolition of the DFDAT.  Item 109 makes amendments to punctuation in subsections 153(3) and (4) to reflect the repeal of subsections 153(2) and (5).

Item 113 - Paragraph 154(1)(a) Report to be obtained before commencement of review

260.           This item removes the reference to ‘a direction given under subsection 145(2) or (5)’ in paragraph 154(1)(a) and replaces it with ‘an acquittal under subclause 35(1) of Schedule 3B’.  This reflects the movement of provisions concerning mental impairment in courts martial or Defence Force magistrates proceedings to subclause 35(1) of Schedule 3B of the Defence Force Discipline Act 1982 .

Item 114 - At the end of subsection 155(1) Further review

261.           This item adds a note at the end of subsection 155(1) which states that this subsection is affected by clause 54 of Schedule 3B, which deals with the effect of an appeal to the Military Court on a review of proceedings of a court martial or a Defence Force magistrate.

Item 115 - Section 156 Effect on reviews of appeals to Defence Force Discipline Appeal Tribunal

262.           This item repeals section 156, which provides for the effect on reviews of appeals to the DFDAT.  This amendment is a consequence of the abolition of the DFDAT.

Item 116 - Section 157 Interpretation

263.           This item amends existing section 157 which provides a definition of ‘review’ for the purposes of Division 3 of Part VIIIA —‘Action on review of proceedings that have resulted in a conviction’.  The amendment provides that the definition of review in section 157 applies to the term other than its use in section 162, which relates to a review of punishments and orders under Part IV.

Item 117 - Section 158 (heading)

264.           This item repeals the heading of Section 158—‘Quashing of conviction etc’.  It substitutes this heading with ‘Quashing of conviction—general’.  This amendment is a consequence of the relocation of provisions relating to quashing of conviction on the basis that the person was unfit to be tried or suffering mental impairment at the time of committing the offence in new section 158A (see Items 118-120 in Schedule 1 of this Bill).

Item 118 - Subsections 158(1) and (2) Quashing of conviction etc.

265.           This item removes the references to subsection 158(5) to reflect the repeal of that subsection by Item 119 in Schedule 1 of this Bill.

Item 119 - Subsections 158(3), (4) and (5) Quashing of conviction etc.

266.           This item repeals subsections 158(3), (4) and (5), which relate to the reviewing authority’s power to quash convictions on the basis that the accused person was mentally impaired at the time of committing the offence.  The reviewing authority’s existing power to quash the conviction and direct that the person be kept in strict custody until the pleasure of the Governor-General is known, will be removed.  This will be replaced by the new section 158A, which is modelled on the Crimes Act 1914 (see Item 120 of Schedule 1 of this Bill).  This modernises the existing antiquated powers for dealing with persons who are found to be mentally impaired and provides protections which are closely aligned to the civilian criminal justice system.

Item 120 - After section 158 Quashing of conviction-unfitness to be tried or mental impairment at time of conduct constituting service offence

267.           This item inserts a new section 158A after section 158, which will provide the new powers of a reviewing authority upon quashing a conviction of a person on the basis that the person was unfit to be tried or suffering mental impairment at the time of committing the offence.

268.           Subsection 158A(1) provides that, if it appears to the reviewing authority that the service tribunal should have referred the charge to the DMP on the basis the accused was unfit to be tried, the reviewing authority must quash the conviction and refer the charges to the DMP.

269.           Subsection 158(2) provides that if, in a review, the reviewing authority is satisfied that the convicted person was, at the time of the offence, suffering from a mental impairment so as not to be responsible for the conduct constituting the offence, the reviewing authority must quash the conviction, find the person not guilty of the service offence because of mental impairment and acquit the person of the service offence.

270.           As Item 15 in Schedule 1 of this Bill inserts a definition of mental impairment in the Defence Force Discipline Act 1982 by reference to section 7.3 of the Criminal Code, subsection 158A(3) provides that, in applying the Criminal Code section 7.3, subsection 7.3(4) will be taken to be omitted.  This is because subsection 7.3(4) provides that the prosecution can only rely on section 7.3 if the court gives leave.  As the reviewing authority proceedings are not subject to the direction of a court, this section is not applicable.

271.           Subsection 158A(4) provides that, where the reviewing authority acquits a person under subsection 158A(2), the reviewing authority may, by order, release the person, release the person subject to certain conditions (including that the person attend assessment of mental impairment or treatment), or may make any other order it considers necessary having regard to the best interests of the accused person, the safety of any other person to whom the order relates and the safety of the community generally. 

272.           The order must specify the period it is to have effect, which must not be more than three years (see also subsection 158A(5). 

273.           Examples of orders may include, but are not limited to, orders requiring a person to remain at a certain location, or not to leave a certain geographic area.  An order should not be made for detention of a person.

274.           Subsection 158A(6) provides that the DMP or person to whom the order relates may apply for an order to be varied or set aside.  Under subsections 158A(7) and (8), an application to vary or set aside must be made to a service chief (if the acquitted person is a defence member at the time of application) or the Attorney-General (in any other case), who may then vary or set aside the order

275.           The discretion granted to the Attorney-General or service chief allows for flexibility if a person’s circumstances change.  Decision making would involve varying or setting-aside an order made by a reviewing authority arising from a decision to acquit a person on the basis of consideration of a person’s mental capacity.  The Attorney-General or service chief (as the case may be) may independently consider the appropriateness of the order at the time of an application. 

276.           Subsection 158A(9) provides that a reviewing authority must not quash a conviction under section 158A if there are grounds for quashing the conviction under section 158.  This includes where the conviction cannot be supported having regard to the evidence, a substantial miscarriage of justice has occurred (on the basis of material irregularity or wrong decision on a question of law or mixed question of law and fact), or that, in all the circumstance of the case, the conviction is unsafe or unsatisfactory.

Item 121 - Section 159 Person taken to have been acquitted

277.           This item repeals existing section 159 and replaces it with a new section 159.  Existing section 159 provides that where a reviewing authority quashes a conviction and does not order a new trial, the person shall be deemed to have been acquitted of the offence.  New section 159 provides that if a reviewing authority:

  • quashes a conviction under section 158, and does not order a new trial, or
  • quashes a conviction under 158A(1) (unfit to stand trial), and the DMP directs that the charge of the offence be not proceeded with,

the person is taken to have been acquitted of the offence. 

278.           It also provides that if a reviewing authority quashes a conviction of a custodial offence under subsection 158A(4),  the person is taken to have been acquitted of the offence for the purpose of the Defence Force Discipline Act 1982 .

 

 

Item 122 - Paragraph 160(1)(a) New trial

279.           This item inserts ‘under section 158’ before ‘quashes’ to provide that a new trial can only be ordered where a conviction has been quashed under section 158 (but not under section 158A).  This amendment is a consequence of the insertion of a new section 158A, which provides for a reviewing authority to quash a conviction on the basis that the person was unfit to stand trial or was suffering mental impairment at the time of committing the offence.  If a reviewing authority quashes a conviction on the basis of the person being unfit to stand trial or being mentally impaired at the time of committing the offence rather than ordering a new trial, they must exercise the powers provided under new section 158A.

Item 123 - At the end of section 160 New trial

280.           This item inserts a new subsection 160(4) which requires a reviewing authority to notify the person, in writing, of their right to elect to have their charge tried by the Military Court, where the reviewing authority has ordered a re-trial before a summary authority.  This will ensure that accused persons are made aware of their right to elect under the new military justice system.

Item 124 - Subsection 162(3) Review of action under Part IV

281.           This item repeals subsection 162(3) which provides that where on review it appears that a summary authority has imposed an elective punishment otherwise than in accordance with section 131, the reviewing authority must quash the punishment.  This subsection has been repealed because it relates to elective punishments, which will not be part of the new military justice system (see Item 164 in Schedule1 of this Bill).

Item 125 - Subsection 162(5) Review of action under Part IV

282.           This item removes the reference to subsection 162(3) in existing subsection 162(5).  This amendment is a consequence of the repeal of subsection 162(3) (see Item 124 in Schedule 1 of this Bill).

Item 126 - Subsection 162(5) Review of action under Part IV

283.           This item clarifies subsection 162(5) by replacing the phrase ‘convicted the convicted person of the service offence of which he or she was convicted’ with ‘imposed the punishment or made the order’.  Subsection 162(5) provides that where a reviewing authority quashes a punishment or revokes an order on review of a conviction imposed by a service tribunal, they may take such action as could have been taken under Part IV (punishments and orders) by the service tribunal.

284.           It is clearer to refer to the service tribunal who ‘imposed the punishment or made the order’, rather than to the service tribunal who ‘convicted the person’.  It is also possible that the service tribunal that convicted the person or made the order was a different service tribunal to the one that took the Part IV action.  This would occur where a court martial was dissolved or a reference to a Defence Force magistrate terminated before Part IV action was taken.

 

Item 127 - Paragraphs 162(5)(a) and (b) Review of action under Part IV

285.           This item adds ‘or’ at the end of paragraphs 162(5)(a) and (b) to clarify that the options available to the reviewing authority in paragraphs 162(5)(a) to (d) are alternative rather than cumulative.

Item 128 - At the end of section 162 Review of action under Part IV

286.           This item inserts a definition of review to be used for the purpose of section 162 of the Defence Force Discipline Act 1982 .  The definition of review for the rest of Division 3 is contained in section 157 (as amended by this Act).

287.           The definition for section 162 covers both reviews of service tribunal proceedings resulting in conviction or proceedings in which a summary authority has taken Part IV (Punishments and orders) action in relation to a person in the circumstances referred to in subsection 76(1A) (breach of good behaviour undertakings because of subsequent conviction by Military Court).

Item 129 - Division 4 of Part VIIIA (heading) Action on review of proceedings that have resulted in prescribed acquittal

288.           This item repeals the heading of Part VIIA, ‘Division 4—Action on review of proceedings that have resulted in an acquittal on the ground of unsoundness of mind’.  It substitutes this heading with ‘Division 4—Action on review of proceedings that have resulted in prescribed acquittal’.  This amendment is a consequence of the replacement of the term ‘unsoundness of mind’ with ‘mental impairment’ in the new military justice system (see Item 15 in Schedule 1 of this Bill).  ‘Prescribed acquittal’ is defined to mean acquittal on the ground of mental impairment (see Item 20 in Schedule 1 of this Bill).

Item 130 - Subsection 164(3) Quashing of prescribed acquittal etc

289.           This item repeals existing subsection 164(3) and replaces it with a new section 164(3).  Existing subsection 164(3) provides that, on a finding that a service tribunal should have found the person unfit to stand trial, the reviewing authority must quash the prescribed acquittal and direct that the person be kept in strict custody until the pleasure of the Governor-General is known.

290.           The new subsection 164(3) modernises this provision by requiring that the reviewing authority quash the prescribed acquittal and refer the charge to the DMP where it appears to the reviewing authority that the service tribunal should have found the person unfit to stand trial.  The note states that the DMP may deal with the charge under section 103.  This includes the power to institute proceedings in the Military Court.  Under the new military justice system, if it appears to a reviewing authority or a service tribunal that a person is unfit to stand trial, the charge will be referred to the DMP to be dealt with by the new Military Court.  The new Military Court will have powers modelled on the Crimes Act 1914 for dealing with unfitness to stand trial (see Part 10 of the Military Court of Australia Bill).



Item 131 - At the end of section 164 Quashing of prescribed acquittal etc

291.           This item inserts a new subsection 164(5) into the Defence Force Discipline Act 1982 .  The item provides that if a reviewing authority quashes a prescribed acquittal by a court martial or Defence Force magistrate, any order relating to conditions on a person’s release is taken to be revoked.

Item 132 - Section 165 Person taken to have been acquitted

292.           This item repeals existing section 165 and replaces it with a new section 165.  The existing section 165 provides that if a reviewing authority quashes a prescribed acquittal and does not give direction under subsection 165(3) (directing that the person be kept in strict custody until the pleasure of the Governor-General is known), then the person is deemed to have been acquitted of the offence without qualification.

293.           New subsection 165(1) provides that, for the purposes of this Act, if a reviewing authority quashes a prescribed acquittal under subsections 164(1) or (2) and does not order a new trial, the person is taken to have been acquitted of the offence without qualification.

294.           New subsection 165(2) provides that, for the purposes of this Act, if the reviewing authority quashes a prescribed acquittal of a person under subsection 164(3) and the DMP directs the charge is not to be proceeded with, the person is taken to have been acquitted of the offence without qualification.  A note also refers to section 103 in relation to the DMP’s powers in relation to the charge.

295.           New subsection 165(3) provides that, for the purposes of this Act, if a reviewing authority quashes a prescribed acquittal of a person for a custodial offence under subsection 164(3), the person is taken to have been acquitted of the offence without qualification.

296.           The effect of making these provisions for ‘the purposes of this Act’ is to prevent the person  being charged with and tried again for these service offences on the basis of the same conduct.  The operation of these subsections will not prevent trials for equivalent civil criminal offences on the basis of the same conduct.

Item 133 - Paragraph 166(1)(a) New trial

297.           This item inserts ‘under subsection 164(1) or (2)’ before ‘quashes’ in paragraph 166(1)(a).  This amendment limits the scope of this section by providing for the reviewing authority to order a new trial, when prescribed acquittals are quashed under subsections 164(1) or (2).  Prescribed acquittals which are quashed on the basis that the person should have been found unfit to stand trial under subsection 164(3) will be referred to the DMP (see Item 130 in Schedule 1 of this Bill).

Item 134 - Subsection 169(2) Punishments or orders not approved to be quashed or revoked

298.           This item clarifies subsection 169(2) by replacing the phrase ‘convicted the convicted person of the service offence of which he or she was convicted’ with ‘imposed the punishment or made the order’.  Subsection 169(2) provides that where a reviewing authority quashes a punishment or revokes an order specified in section 172, they may take such action as could have been taken under Part IV (Punishments and orders) by the service tribunal.

299.           It is clearer to refer to the service tribunal who ‘imposed the punishment or made the order’, rather than to the service tribunal who ‘convicted the person’.  It is also possible that the service tribunal that convicted the person or made the order may be a different service tribunal to the one that took the Part IV action.  This would occur where a court martial was dissolved or a reference to a Defence Force magistrate terminated before Part IV action was taken.

Item 135 - At the end of paragraphs 169(2)(a) and (b) Punishments or orders not approved to be quashed or revoked

300.           This item adds ‘or’ at the end of paragraphs 169(2)(a) and (b) to clarify that the options available to the reviewing authority in paragraphs 169(2)(a) to (d) are alternative rather than cumulative.

Item 136 - Section 169BB (cell at table item 2, column headed “Relevant discipline officer”)

301.           This item corrects an earlier inadvertent omission in Item 2 of the table in section 169BB.  This item amends the table to include all ADF Warrant Officers, Chief Petty Officers and Flight Sergeants, as relevant discipline officers for the purposes of prescribed defence members with the rank of Officer Cadet.

Item 137 - Subsection 169E(4) Election to be dealt with by discipline officer

302.           This item amends subsection 169E(4) by substituting the words ‘a relevant officer may refer the matter to the Director of Military Prosecutions or an authorised member of the Defence Force for the purposes of section 87 to be dealt with under that section’ for the existing ‘a relevant officer may refer the matter to an authorised member of the Defence Force to be dealt with according to action 87’.  This amendment is a consequence of the exclusion of the DMP from the definition of ‘authorised member of the Defence Force’ by Item 60 in Schedule 1 of this Bill.

Item 138 - Section 169J This Part not a bar to action under other provisions

303.           This item omits the words ‘other Part’ in section 169J and replaces it with ‘provision of this Act other than this Part, or under the Military Court Act,’.  The amended section 169J provides that a prescribed defence member is not prevented from being dealt with under any provision of the Defence Force Discipline Act 1982  other than Part IXA, or under the Military Court Act, in respect of a service offence merely because the offence arises out of an act or omission that constitutes a disciplinary infringement.  This amendment ensures that the new Military Court will be able to deal with charges of service offences even if the offences arise out of acts or omissions that constitute disciplinary infringements.

Item 139 - Subsection 171(1) Commencement of punishments and orders

304.           This item removes the reference to the DFDAT in subsection 171(1), which provides for the commencement of punishments and orders imposed by a service tribunal, reviewing authority or the DFDAT.  This amendment is a consequence of the abolition of the DFDAT under the new military justice system (see Schedule 4 of this Bill).

Item 140 - Section 173 Suspension of operation of restitution orders and reparation orders

305.           This item repeals section 173, which relates to the suspension of restitution and reparation orders made by a court martial or Defence Force magistrate.  This section is moved to new Schedule 3B to reflect the restricted operation of courts martial and Defence Force magistrates under the new military justice system (see clause 56 inserted by Item 165 in Schedule 1 of this Bill).

Item 141 - Subsection 174(1) Recovery of fines etc.

306.           This item removes the reference to the Defence Force Discipline Appeals Act 1955 in subsection 174(1).  This amendment is a consequence of the repeal of that Act under the new military justice system (see Schedule 4 of this Bill).

Items 142 - Subsection 175(1) Evidence of fine etc.

307.           This item removes the reference to ‘the Registrar’ in subsection 175(1) as a consequence of the abolition of the position of RMJ under the new military justice system.

Item 143 - Paragraph 175(1)(a) Evidence of fine etc.

308.           This item removes the reference to the Defence Force Discipline Appeals Act in paragraph 175(1)(a).  This amendment is a consequence of the repeal of that Act under the new military justice system (see Schedule 4 of this Bill).

Items 144 - Subsection 175(2) Evidence of fine etc.

309.           This item removes the reference to the ‘Registrar’ in subsection 175(2) as a consequence of the abolition of the position of RMJ under the new military justice system.

Item 145 - After section 175 Release from custody pending approval of punishments or dismissal from Defence Force

310.           This item inserts a new section 175A after section 175 and provides a power for a reviewing authority to authorise the release of a person from custody pending a decision on review under Part VIIIA of the Defence Force Discipline Act 1982 .

311.           Section 172 provides for persons whose punishment is for imprisonment for life or a specified period, detention or dismissal from the ADF to be kept in custody pending the outcomes of the review.  This power is necessary as the convicted person will be unable to lodge an appeal to the Military Court until after the automatic review is complete under section 152 of the Defence Force Discipline Act 1982 , leaving the person without any option but staying in custody.  Subsection 171(1C) provides that a person on whom a punishment of dismissal from the ADF is imposed may be kept in custody until the dismissal takes effect.

312.           Subsection 175A(1) sets out who the section applies to, being people kept in custody under subsections 172(3A), (4) and (5) or under subsection 171(1C).

313.           Subsection 175A(2) provides the power for a reviewing authority to release one of these people from custody pending either the review decision or dismissal from the Defence Force.

314.           Subsection 175A(3) achieves two objectives.  It provides the reviewing authority with the power to impose conditions or restrictions and then to vary or revoke these.  It also provides a power for the CDF or a service chief to specify the kinds of conditions or restrictions the reviewing authority can impose under this subsection.  The CDF or the service chief must specify these by instrument in writing.  The reviewing authority can only impose the kinds of conditions or restrictions specified in the instrument and not any others.  Subsection 175A(6) provides that this instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 and is intended to assist readers only .

315.           Subsection 175A(4) imposes an obligation on the reviewing authority to notify the person of the condition or restriction (or the variation or revocation of such) as soon as practicable.

316.           Under subsection 175A(5), a person can be taken back into custody if they breach a condition or restriction in force in relation to them.  A condition or restriction varied or revoked under subsection 175A(4) can only be taken to be in force once the person has been notified of it.

Item 146 - Section 176 Stay of execution of punishment

317.           This item replaces existing section 176 with a new section 176.  Subsection 176(2) preserves the effect of existing section 176, by providing that where a service tribunal has imposed a punishment on a convicted person and the convicted person lodges a section 153 petition for review, the reviewing authority may order that the execution of the punishment is to be stayed in whole or in part pending completion of the review.

318.           Subsection 176(1) is a new provision which ensures that if a service tribunal has imposed a punishment on a convicted person, the reviewing authority who is reviewing the proceedings under section 152 may order that the execution of the punishment is to be stayed in whole or in part, pending the completion of the review under that section.  This power will only be needed for punishments that can take effect before they are approved by the reviewing authority under Division 5 of

Part VIIIA.

319.           Section 176 does not give a reviewing authority the power to order that the execution of a punishment be stayed while a convicted person has instituted an appeal to the Military Court.  The Military Court will have this power under clause 57 of Schedule 3B.

 

Item 147 - Part XI (heading) Judge Advocate General and Deputy Judge Advocates General

320.           This item repeals the existing heading to Part XI—‘Judge Advocate General and Deputy Judge Advocates General, Chief Judge Advocate and Registrar of Military Justice’, and replaces it with a new heading ‘Part XI— Judge Advocate General and Deputy Judge Advocates General’.  This amendment is a consequence of the abolition of the positions of Chief Judge Advocate and RMJ under the new military justice system (see Item 149 in Schedule 1 of this Bill).  As the Chief Judge Advocate’s role was to provide an administrative supporting role to the Judge Advocate General for courts martial and Defence Force magistrate trials, the position is no longer required given these types of trials are expected to be rare.

Item 148 - Division 1 of Part XI (heading) Judge Advocate General and Deputy Judge Advocates General

321.           This item repeals the existing heading of Part XI, Division 1—‘ Judge Advocate General and Deputy Judge Advocates General ’.  This Division heading is not necessary because of the repeal of all other Divisions in this Part by Item 149 in Schedule 1 of this Bill.

Item 149 - Divisions 2 (Chief Judge Advocate) and 3 (The Registrar of Military Justice) of Part XI

322.           This item repeals Divisions 2 and 3 of Part XI concerning the Chief Judge Advocate and the RMJ.  This amendment reflects the abolition of the positions of Chief Judge Advocate and RMJ under the new military justice system.  Transitional arrangements have been provided for in Schedule 5 of this Act.

Item 150 - Paragraph 188GA(1)(a) Functions of the Director of Military Prosecutions

323.           This item repeals existing paragraphs 188GA(1)(a) and substitutes new paragraphs 188GA(1)(aa) and (a) to reflect that the DMP’s functions include instituting and prosecuting matters in the new Military Court, and carrying on prosecutions for service offences in proceedings before a court martial or a Defence Force magistrate (in relation to the residual system).

Item 151 - Paragraph 188GA(1)(d) Functions of the Director of Military Prosecutions

324.           This item repeals paragraph 188GA(1)(d), which provides that one of the functions of the DMP is to represent the service chiefs in proceedings before the DFDAT.  This amendment is a consequence of the abolition of the DFDAT (see Schedule 4 of this Bill).

Item 152 - After section 188GA Minister may issue directions and guidelines

325.           This item inserts a new section 188GAA after existing section 188GA to allow the Minister for Defence to issue directions and guidelines to the DMP, following consultation with the Attorney-General and the DMP.  The Minister must cause a copy of the direction or guideline to be published in the Gazette and a copy tabled before each House of Parliament.  The DMP is subject to such directions or guidelines in performing its functions and exercising its powers.

326.           This item is modelled on section 8 of the Director of Public Prosecutions Act 1983 .  Section 8 of that Act gives the Attorney-General the power to issue general directions or guidelines to the Director of Public Prosecutions regarding the discharge of the functions or the exercise of the powers of the office.  Any modification of section 8 reflected in section 188GAA of the Defence Force Discipline Act 1982 is not intended to impact on the interpretation of section 8.

327.           As in the civilian criminal justice context, it is expected that the power under new section 188GAA will be used sparingly and in exceptional circumstances.  The new section is intended to provide the Government with a means by which it can make its prosecutions and criminal law policies known to the DMP in a transparent manner.  To avoid compromising the statutory independence of the DMP, these guidelines must be general in nature and may not relate to how a specific case is to be conducted.  Subsection 188GAA(6) provides that a direction or guideline is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 and is intended to assist readers only.

Item 153 - Section 188GB Appearances by and on behalf of Director of Military Prosecutions

328.           This item includes a reference to the Military Court in the list of the kinds of proceedings in which the DMP may appear.  This amendment is a consequence of the DMP’s function in prosecuting charges in the new Military Court.

Items 154 and 155 - Paragraphs 188GJ(2)(b) and (c) Oath or affirmation

329.           Item 151 repeals paragraph 188GJ(2)(c), which allows the DMP to make an oath or affirmation before the Chief Judge Advocate.  Item 150 corrects the punctuation in paragraph 188GJ(2)(b) as a result of the repeal of paragraph 188GJ(2)(c).   This amendment is a consequence of the abolition of the office of Chief Judge Advocate.

Item 156 - At the end of Section 190 Jurisdiction of civil courts in relation to offences

330.           This item inserts a new subsection 190(5) to provide that, in section 190, the references to ‘civil court’ do not include the Military Court.  This amendment is necessary as the definition of ‘civil court’ means a federal court or a court of State or Territory.  Section 190 provides that civil courts do not have jurisdiction to try service offences.  This amendment will ensure that the Military Court’s jurisdiction to try service offences is preserved.

 

 

 

Item 157 - After section 190 Previous acquittal or conviction, Effect of conviction (other than of certain disciplinary offences) by the Military Court, a court martial or a Defence Force Magistrate, effect of conviction by a summary authority and certain convictions by the Military Court, a court martial or a Defence Force Magistrate, Representation of accused person

331.           This item inserts new sections 190A, 190B, 190C and 190D after section 190.

332.           New section 190A replaces (with some modifications) existing section 144, which is repealed by Item 99 in Schedule 1 of this Bill.

333.           Subsection 190A(1) ensures that if a person has already been acquitted or convicted of a service offence in respect of an act or omission, the person cannot be tried for the same, or substantially the same, service offence in respect of the act or omission.

334.           Subsection 190A(2) ensures that a person cannot be tried for the same, or substantially the same, service offence that a court martial, Defence Force magistrate or the Military Court has already taken into consideration under section 77(1) of the Defence Force Discipline Act 1982 or subsection 154(1) of the Military Court Act.

335.           Subsections 190A(3),(4),(5) and (6) largely replicate existing subsections 144(3), (3A), (3B) and (4) without substantive changes other than to remove references to previous service law.

336.           New section 190B clarifies the obligations relating to disclosing or reporting a conviction for a service offence where an obligation to report or disclose an ‘offence against a law of the Commonwealth’ is created by law.

337.           New subsection 190B(1) provides that section 190B only applies to convictions imposed by the Military Court, Defence Force magistrates or courts martial, except in relation to convictions of certain disciplinary offences specified in Schedule 7.

338.           New subsection 190B(2) requires that where a conviction is recorded, it must be recorded as a conviction for a service offence.

339.           New subsection 190B(3) would enable a service chief or an authorised officer to disclose the fact that a person has been convicted of a service offence, and provide information relating to the conviction to a Commonwealth, State or Territory authority for purposes connected with investigating, prosecuting or keeping records in relation to offences against laws of the Commonwealth, the State or the Territory.

340.           New subsection 190B(4) provides that for the purposes of complying with a lawful requirement or authorisation to disclose that a person has been convicted of an offence against a law of the Commonwealth that is a service offence, the disclosure must  expressly state that the offence is a service offence.  The note to this subsection states that Part VIIC of the Crimes Act 1914 exempts a person from having to disclose a spent conviction.

341.           New subsection 190B(5) provides that section 190B applies in relation to convictions that occur after the commencement of this section.

342.           New section 190C maintains the effect of existing subsection 3(15), which is repealed by Item 30 in Schedule 1 of this Bill, in relation to convictions by summary authorities for service offences or convictions of certain disciplinary offences contained in Schedule 7.

343.           New subsection 190C(1) limits the application of section 190C to convictions by any summary authority or to convictions of certain disciplinary offences contained in Schedule 7.

344.           New subsection 190C(2) provides that these particular types of convictions are for the purposes of ADF service only, precluding the requirement to disclose, report or record the conviction for any other purpose.

345.           New subsection 190C(3) provides that a person is not required to disclose these convictions for any purpose (other than a service purpose), where there may be a requirement to disclose a conviction for on offence against a law of the Commonwealth.

346.           The note to this subsection states that a person convicted of a service offence to which this section applies is not required to disclose the conviction for service purposes if the conviction is spent within the meaning of Part VIIC of the Crimes Act 1914 .

347.           New subsection 190C(4) provides that subsections 190C(2) and (3) have effect despite subsection 3A (1), which provides that for the purposes of any law of the Commonwealth other than the Defence Force Discipline Act 1982 or the regulations, a service offence is an offence against the law of the Commonwealth (see Item 31 in Schedule 1 of this Bill).

348.           New subsection 190C(5) provides that the section applies in relation to a conviction whether it occurs before or after commencement of this section.  The effect of this provision would be expected to benefit an applicant.

349.           New section 190D is modelled on existing subsections 137(2) and (3), which are repealed by Item 90 in Schedule 1 of this Bill.  Section 190D provides that accused persons who are advised by a legal officer in relation to a proceeding by the Military Court, a court martial or Defence Force magistrate, or represented at such a proceeding by a legal officer, must be so advised or represented without expense to the accused.  In this section, a broad interpretation of ‘proceeding’ should be adopted.  The term includes all proceedings relating to the trial, including interlocutory, preliminary and appeal proceedings.

350.           Subsection 190D(2) preserves the operation of any legal aid scheme that might be available to the accused.

Item 158 - Paragraphs 191(1)(a), (b) and (c) Evidentiary certificate

351.           This item removes paragraphs 191(1)(a), (b) and (c) and replaces them with new paragraph 191(1)(a) and (b).  New paragraph 191(1)(a) provides that an authorised officer may issue a certificate setting out such facts as the authorised officer considers relevant with respect to the acquittal or conviction of a person by a service tribunal of a service offence.  This ensures that an authorised officer may issue a certificate concerning proceedings of service tribunals and not the proceedings of the Military Court.  As a service tribunal is not a court, it is necessary to retain a mechanism for creating prima facie evidence in relation to service tribunals. New paragraph 191(1)(b) updates the cross-references to existing sections 132 and 135, to reflect their replacement with new clauses 14 and 28 of Schedule 3B (see Items 90 and 165 in Schedule 1 of this Bill).

Item 159 - Subsection 193(4) Protection of members of courts martial etc.

352.           This item amends subsection 193(4) by removing the provision preventing the bringing of an action, suit or proceedings against the Registrar or person assisting the Registrar.  This is a consequence of the abolition of the position of RMJ.  The new subsection 193(4) provides the same protections against an action, suit or proceeding being brought against the DMP, or a superior authority .  This is necessary as the superior authority assumes the Registrar’s function of convening courts martial and referring charges to Defence Force magistrates under new section 103C(2)(c) (see Item 73 in Schedule 1 of this Bill).

Item 160 - Section 194 Persons found to be of unsound mind

353.           Section 194 relates to persons found to be of unsound mind and directed to be kept in strict custody until the pleasure of the Governor-General is known.  The repeal of this section is a consequence of the replacement of the existing regime for dealing with persons of unsound mind with the new regime.  Under the new regime, persons found to be of unsound mind will be treated similarly to persons found to be mentally impaired under the Crimes Act 1914 (see clause 25 of Schedule 3B and new subsection 158A in Items 165 and 120 of Schedule 1 of this Bill).

Item 161 - Section 195 Supply of record of proceedings

354.           This item repeals section 195, and substitutes a new section 195.  New

section 195 updates the existing provisions relating to the supply of record of proceedings to make it easier to read.  Subsection 195(1) and (2) provides a specific mechanism by which an accused or convicted person, deceased person’s legal representative or approved person (in proceedings before a court martial or Defence Force magistrate) may apply to a service chief or authorised officer for a copy of the record of proceedings. Subsection 195(3) prevents a service chief or authorised officer approving a person as the deceased’s legal representative unless they are satisfied that the deceased’s legal personal representative has declined to make an application.

355.           Subsection 195(4) requires a service chief or authorised person to give a copy of the record if a person applies.  Subsection 195(5) preserves prohibitions on publication of a record, or parts of a record, where an order is made by the President of the court martial or a Defence Force magistrate preventing publication (under existing subsection 148(2) or new clause 33(2)(b) of Schedule 3B).

356.           Time limits for applications to be made for access to the record of proceedings have been removed.

357.           Subsection 195(6) clarifies that the section does not affect the power of a civil court to make an order for the discovery of documents or giving evidence in, or the production of documents to, a civil court.  The Military Court will be a civil court for these purposes.

358.           The provision does not affect the ability a person may have to access records under the Freedom of Information Act 1982 .   

Item 162 - Subsection 196A(4) Annual report relating to Defence Force discipline law

359.           The item repeals existing subsection 196A(4), and replaces it with a new subsection 196A(4).  The new subsection provides that the requirement for the Judge Advocate General to provide the Minister for Defence with an annual report on Defence Force discipline law under section 196A does not relate to the decisions, operation or management of the Military Court, or any other matters relating to it.  This is because the Chief Justice of the Military Court will be required to provide the Attorney-General with an annual report on the management and administrative affairs of the Military Court for tabling in Parliament under section 57 of the Military Court Act .

Item 163 - Schedules 1A Certain disciplinary offences and 1 Corresponding punishments

360.           This item repeals Schedules 1A and 1.  Schedule 1A provides a list of offences in respect of which a person cannot elect to be tried by a court martial or Defence Force magistrate, instead of a summary authority, under the existing system.  The amendments in this Act remove the existing restrictions on the right to elect to not be tried by a summary authority, including if a person has been charged with an offence under Schedule 1A.  Under the new military justice system, all accused before a summary authority have the right to elect to be tried by the Military Court on all offences, with the exception of custodial offences or detainees committing offences ancillary to custodial offences.

361.           Schedule 1 provides the maximum punishments for certain old system offences.  This Schedule is repealed as a consequence of the discontinuance of old service offence provisions (see Item 19 in Schedule 1 of this Bill).  All proceedings in respect of old system offences have been completed and no new proceedings for old system offences can be instituted.

Item 164 - Schedule 3 Punishments that may be imposed by a summary authority

362.           This item repeals existing Schedule 3, which provides for the punishments available to summary authorities, and substitutes a new Schedule 3.  The new Schedule 3 removes provisions for a two tier system of punishments and replaces it with a single tier system.

363.           As all accused will have the right to elect to be tried by the Military Court, the current system to elect punishments offered by summary authorities is being abolished.  The current system allows summary authorities to offer the accused, at the summary authority’s discretion, a choice of trial by court martial or Defence Force magistrate, or continued trial by summary authority with the elective punishments available.  The elective punishments are slightly harsher than the standard ones.

364.           This amendment replaces the two tier system with a single scale of punishments, with the new maximum punishments set at the maximum of the current elective punishments.

Item 165 - After Schedule 3A Courts martial and Defence Force magistrates

365.           This item inserts a new Schedule 3B—‘Courts Martial and Defence Force Magistrates’, after Schedule 3A in the Defence Force Discipline Act 1982 .

366.           Courts martial and Defence Force magistrates will continue to be used in the new military justice system for hearing trials for serious service offences when the Military Court determines that it is necessary, but not possible, for it to sit overseas (clause 51 of the Military Court of Australia Bill 2012).  However, as this is expected to occur very rarely, provisions relating particularly to courts martial and Defence Force magistrate trials are moved to a new Schedule 3B of the Defence Force Discipline Act 1982 , with modifications to reflect the creation of the new Military Court.  This is to reflect the restricted operation of courts martial and Defence Force magistrates under the new military justice system.

367.           Provisions relating generally to service tribunals (courts martial, Defence Force magistrates and summary authorities) are retained in the body of Defence Force Discipline Act 1982.    For example, Part VIII sets out the procedures of service tribunals and Part VIIIA articulates requirements for the review of proceedings of service tribunals.  These parts have not been moved into this Schedule because they relate generally to all service tribunals, including summary authorities.

368.           Schedule 3B also sets out provisions for both the accused and the DMP to appeal decisions of courts martial and Defence Force magistrates to the Military Court.

Part 1—Courts Martial

369.           Part 1 of Schedule 3B contains provisions for the trial of service offences by courts martial, when the Military Court has determined that it is necessary for the matter to be heard overseas, but that it is not possible for it to sit overseas.  Division 1 provides for the convening of a court martial and its jurisdiction.  Division 2 provides for the membership of a court martial, Division 3 provides for trial by court martial, Division 4 provides for the determination of questions by a court martial, and Division 5 provides for the dissolution of a court martial.

Division 1—Convening a court martial and jurisdiction

Clause 1 - Convening order and appointment of court martial

370.           This clause is based on the existing section 119 of the Defence Force Discipline Act 1982 .

371.           Subclause 1(1) requires a superior authority to make an order convening a court martial if the DMP directs the superior authority to do so.  The statutory authority for the DMP to direct a superior authority (potentially a more senior officer) is contained in subparagraphs 103C(2)(c)(ii) and 103E(2)(c)(ii) of the Defence Force Discipline Act 1982  and subclauses 19(6) and 31(4) of this Schedule.  Where a superior authority makes an order, they are then known as the ‘convening superior authority’.

372.           The superior authorities will take on the role currently performed by the RMJ.  The office of the RMJ is being abolished by this Act (see item 149 in Schedule 1 of this Bill).

373.           Subclause 1(2) provides that, in making an order convening a court martial, the superior authority must appoint defence members to various roles in the court martial and set, or provide for the setting, of the time and place for the court martial to be assembled.  In making appointments under this subclause, the relevant superior authority may have regard to issues of availability of potential members or competing operational requirements.

374.           Subclause 1(3) requires the relevant service chief (being the chief of the service of the accused) to make available any personnel appointed to the court martial by order of the convening superior authority.  This subclause replicates existing subsection 129B(3) of the Defence Force Discipline Act 1982 .

375.           Subclause 1(4) provides for the convening superior authority to vary an order convening the court martial or make an order to convene a new court martial.  Before doing so, the convening superior authority is required to consult with the DMP and can only vary the order before the court martial assembles to try a charge.

376.           Subclause 1(5) provides a statutory prohibition on any court martial being convened otherwise than under this clause.

Clause 2 - Types of Court Martial

377.           This clause is based on existing section 114 of the Defence Force Discipline Act 1982 .

378.           Subclause 2(1) provides that a court martial can be either a general or restricted court martial.  Subclause 2(2) provides that a general court martial must have a President and at least four (but possibly more) other members.

379.           Subclause 2(3) provides that a restricted court martial must have a President and at least two (but possibly more) other members.

380.           Other than their constitution, the only difference between a general and restricted court martial is that a general court martial can impose a wider range of punishments on a convicted person than a restricted court martial.

Clause 3 - Jurisdiction of court martial

381.           This clause is based on existing section 115 of the Defence Force Discipline Act 1982 .  It sets out the jurisdiction of a court martial.

382.           Subclause 3(1) provides for a court martial to try any charge against any person, subject to section 63 of the Defence Force Discipline Act 1982 and to subclause 3(3).  ‘Charge’ is defined in subsection 3(1) of the Defence Force Discipline Act 1982 to mean a charge of a service offence.  Service offences can only be committed by ADF members or defence civilians, as set out in the specific offence provisions in Part III of the Defence Force Discipline Act 1982 .

383.           Section 63, as amended, provides that proceedings may only be instituted in a service tribunal (which includes a court martial) or the Military Court for certain offences with the consent of the Director of Public Prosecutions.  These are offences which have serious criminal law equivalents, and include murder and manslaughter.

384.           Subclause 3(2) also confers jurisdiction on a court martial to take action under Part IV (Punishments and orders) if the court martial has been convened following a direction from the DMP under subclause 19(6) (court martial dissolved after conviction but before Part IV action) or paragraph 31(4)(d) (termination of reference to a Defence Force magistrate after conviction but before Part IV action).  The note to this section states that the court martial must hear evidence prior to taking action under Part IV.

385.           Subclause 3(3) provides that a court martial does not have jurisdiction to try a charge of a custodial offence.  Custodial offences are defined in subsection 3(1) of the Defence Force Discipline Act 1982 , and jurisdiction to try custodial offences vests with service tribunals other than courts martial or Defence Force Magistrates.  This is consistent with the Military Court, which also does not have jurisdiction to hear custodial offences (subclause 63(2) of the Military Court of Australia Bill).  Custodial offences are provided in Division 6A and are offences committed while the person is being detained in an ADF detention facility.  It includes conduct such as making unnecessary noise and committing a nuisance.  These offences, given their less serious nature, are to be exclusively tried by summary authorities.

Clause 4 - Accused person must be notified of making or variation of convening order

386.           This clause is based on existing section 120 of the Defence Force Discipline Act 1982 .  The heading has been amended to clarify the requirement to notify the accused where a convening order has been made or varied.

387.           The clause requires the convening superior authority to give a copy of the order convening, or varying an existing order to convene, a court martial to the accused person.  The convening superior authority is to do this as soon as practicable after making the order.

Division 2—Membership of court martial

Clause 5 - Eligibility to be member of court martial

388.           This clause is based on existing section 116 of the Defence Force Discipline Act 1982 .  It sets out the eligibility requirements to be a member, reserve member or the President of a court martial.  For members and reserve members, subclause 5(1) requires the person to have been an officer for a continuous or aggregate period of at least three years and of equivalent or higher rank than the accused.  Subclause 5(2) sets minimum ranks required to be eligible to be the President.  As a member of the court martial, the President must also meet the eligibility criteria for members set out in subclause 5(1).

389.           Subclause 5(3) provides for an exception to the rules of eligibility to be President of a court martial in situations where the President is replaced by the next senior member of the court martial, under paragraph 10(1)(e) of Schedule 3B, or where the next senior member of the court martial becomes the President because the first President was unable to attend following a person’s plea under subclause 11(1) of Schedule 3B.

390.           Subclause 5(4) outlines the only exception to the eligibility requirements relating to the rank of a member or reserve member relative to the rank of the accused (paragraph 5(1)(c) of Schedule 3B) and the rank of a President (subclause 5(2)).  The only reason which can be used to invoke this exception is based on the exigencies of service.

Clause 6 - Eligibility to be judge advocate

391.           This clause is based on existing section 117 of the Defence Force Discipline Act 1982 .  It provides that to be eligible to be a judge advocate of a court martial, the person must be a member of the judge advocates’ panel.  The judge advocates’ panel is created under section 196 of the Defence Force Discipline Act 1982 , and is a panel from which judge advocates and Defence Force magistrates are drawn to hear matters .

Clause 7 - Restrictions on appointment of members of courts martial

392.           This clause is based on existing section 129B of the Defence Force Discipline Act 1982 .  Subclause 7(1) prevents the convening superior authority from appointing persons as a President, member, reserve member or judge advocate to a court martial where the convening superior authority believes that the person might be, or might reasonably be perceived to be, biased.

393.           Subclause 7(2) prevents the appointment of a person as a judge advocate unless the Judge Advocate General has nominated the person for that position.  Subsection 141(2) of the Defence Force Discipline Act 1982 provides for the accused person to object to an appointment of a person to a court martial on the basis of ineligibility or bias at any time before the court martial is sworn or affirmed.

Clause 8 - Notification of belief of bias

394.           This clause is based on existing section 122 of the Defence Force Discipline Act 1982 .  It imposes an obligation on a member or reserve member or the judge advocate who believes themselves to be biased, likely to be biased or likely to be perceived on reasonable grounds to be biased, to notify the convening superior authority of that belief as soon as practicable after forming it.  The President is considered to be a member of the court martial and is, therefore, subject to this requirement.

 

Clause 9 - Substitution of members etc.

395.           This clause is based on existing section 123 of the Defence Force Discipline Act 1982 .   It allows for a convening superior authority to revoke an appointment of a member, reserve member or judge advocate, and appoint another person in their place at any time before the court martial is sworn or affirmed.  This would also apply to the President’s appointment as they are considered to be a member of the court martial.

396.           The same eligibility rules apply for the appointment of the substituted member as apply to the original appointment.

Clause 10 - Replacement of members etc.

397.           This clause is based on existing section 124 of the Defence Force Discipline Act 1982 .  It requires the judge advocate to take certain action where they become aware that a member is unavailable, uphold an objection of the accused person on the grounds of bias (subsection 141(2) of the Defence Force Discipline Act 1982 ) or find that a member should be excused for some other reason.

398.           In these instances, the judge advocate must:

  • appoint a reserve member as a member (if the member being replaced was not the President)
  • appoint the member next senior in rank to the President to be the President (provided that member is not more than one rank junior to the President), or
  • if the member was the President and there is more than one rank difference to the next senior member, report the situation to the convening superior authority and request the appointment of a new President.

399.           Subclause 10(2) requires the judge advocate to report a situation where there are insufficient members and reserve members to properly constitute the court martial to the convening superior authority and request the appointment of new members and reserve members.

400.           The requirement in subclauses 10(1) and (2) only apply in the period after the court martial has assembled but before it is sworn.

401.           Subclause 10(3) requires a judge advocate who upholds an objection against themselves on the basis of ineligibility or bias (subsection 141(2) of the Defence Force Discipline Act 1982 ) to report the situation to a convening superior authority and request the appointment of another judge advocate.  The same eligibility rules apply for the appointment of a new judge advocate as those applying to the original appointment.

402.           As an objection under subsection 141(2) of the Defence Force Discipline Act 1982 can be made at any time before the accused person is asked to plead at trial, the requirement in subclause 10(3) is not linked to the assembly or swearing in or affirmation of the court martial.

 

Clause 11 - Inability to attend after plea

403.           This clause is based on existing section 126 of the Defence Force Discipline Act 1982 .  This clause provides for the President to be replaced if the President is unable to attend at any time after the accused person’s plea is recorded.  Where this occurs, the President who is to be replaced is prevented from taking any further part in the proceedings.

404.           Likewise, subclause 11(2) prevents a member of a court martial from taking any further part in the proceeding if they are unable to attend at any time after the plea has been recorded.

Division 3—Trial by court martial

Clause 12 - Application of this Division

405.           This clause provides that Division 3 sets out certain provisions relating to trial by court martial.  The note to the clause confirms that this Division does not exclusively outline the manner in which a trial by court martial is to be conducted.  Part 3 of Schedule 3B also contains provisions relating to procedure for trials. Other provisions relating generally to service tribunals (courts martial, Defence Force magistrates and summary authorities) are contained in Division 3 of Part VIII of the Defence Force Discipline Act 1982.

Clause 13 - Plea of guilty or not guilty

406.           This clause is based on existing section 132 of the Defence Force Discipline Act 1982 .  It sets out the process for requesting a plea from the accused person in relation to the charge and outlines what the court martial must do based on the plea.

407.           Subclause 13(1) requires the judge advocate to ask the accused person whether they plead guilty or not guilty before the court martial begins to hear the evidence on the charge.

408.           Subclauses 13(2) to (4) relate to pleas of guilty by the accused.

409.           Subclause 13(2) requires the court martial to convict the accused person if the accused person pleads guilty and the judge advocate is satisfied that the accused person understands the effect of the plea.

410.           Subclause 13(3) requires the court martial to record a plea of not guilty and proceed to hear the evidence on the charge if the accused person pleads guilty and the judge advocate is not satisfied that the accused person understands the effect of the plea.

411.           Subclause 13(4) sets out the requirements if the accused person pleads guilty to a charge other than the first charge, where there are two or more charges which are stated in the alternative.  In this case, the court martial must accept the plea and convict the accused person provided the DMP notifies the court martial they have no objection to the acceptance of the plea.  Otherwise, the court martial must record a plea of not guilty and proceed to hear the evidence.

412.           Subclauses (5) to (7) relate to pleas of not guilty, a refusal to plead, or withdrawal of a guilty plea by the accused.

413.           Subclause 13(5) requires the court martial to record a plea of not guilty and proceed to hear the evidence on the charge if the accused person pleads not guilty.

414.           Subclause 13(6) applies where the accused person refuses to plead or does not plead intelligibly.  In this instance, the court martial must record a plea of not guilty and proceed to hear the evidence on the charge.

415.           Subclause 13(7) applies where the accused person pleads not guilty and later withdraws that plea and pleads guilty, and the judge advocate is satisfied that the accused person understands the effect of pleading guilty.  In this case, the court martial must substitute a plea of guilty for the plea of not guilty and proceed accordingly under this clause by convicting the accused.

Clause 14 - Sufficiency of evidence

416.           This clause is based on existing subparagraphs 132(1)(c) and (d) and subsection 132(4) of the Defence Force Discipline Act 1982 .  This clause outlines what a court martial must do based on rulings of the judge advocate about sufficiency of evidence following the prosecution adducing its evidence on the charge.

417.           Subclause 14(1) requires the court martial to dismiss a charge if the judge advocate rules that the evidence is insufficient to support the charge.

418.           Subclause 14(2) requires the court martial to proceed with the trial if the Judge Advocate rules the evidence is sufficient to support the charge.

419.           Subclause 14(3) only mandates the judge advocate to give a ruling about the insufficiency of evidence if the accused person has submitted that the judge advocate should so rule or the ruling is required in the interests of justice.  The judge advocate is not prevented from making such a ruling in other circumstances.

420.           Subclause 14(4) only requires the judge advocate to rule that there is sufficient evidence to support the charge if the accused person submits the judge advocate should rule the evidence is insufficient to support the charge and the judge advocate considers the evidence to be sufficient.  This ensures that if the accused person submits that the judge advocate should rule on the insufficiency of the evidence, the accused person can be left in no doubt as to the judge advocate’s views as to the sufficiency, or otherwise, of the evidence.

Clause 15 - Finding of guilty or not guilty

421.           This clause is based on existing subparagraphs 132(1)(e) and (f) of the Defence Force Discipline Act 1982 .   It requires the court martial to convict an accused upon a finding that the accused person is guilty, and acquit an accused person upon a finding that the accused person is not guilty.

 

 

Clause 16 - Action after conviction

422.           This clause is based on existing subparagraph 132(1)(g) of the Defence Force Discipline Act 1982 .  This clause provides that, where a court martial convicts a person, it must take action under Part IV (Punishments and orders) in relation to the convicted person.

423.           Subclause 16(2) requires the court martial to hear any evidence relevant to the determination of what action should be taken to impose punishments or make orders under Part IV.

Division 4 —Determination of questions etc.

Clause 17 - Determination of questions by court martial

424.           This clause is based on existing section 133 of Defence Force Discipline Act 1982 .  It sets out how questions must be determined by the court martial.

425.           Subclause 17(1) provides for the President to preside in a court martial and for every question to be determined by the members of the court martial.  This is subject to the operation of clause 18 (Powers of judge advocate).

426.           Taken together, subclauses 17(2), (3), (4) and (5) provide that each question must be decided by the majority of members.  Where votes are equal on the question of whether the accused person is guilty or not guilty, the court martial must find the accused person not guilty.  In addition, where votes are equal on whether the accused was mentally impaired at the time of the conduct the subject of the charge, the court martial must find the person was suffering from that mental impairment.  These provisions provide for a determination in favour of the accused person where votes are equal on these matters.  In all other cases, for example about punishments, the President has the casting vote.

427.           Subclause 17(6) requires the members to sit without any other person present when determining questions about the guilt or otherwise of the accused person (including whether the accused was suffering from a mental impairment at the time of the relevant act or omission) or in determining what punishment or orders to make following conviction.  T his provision prevents the suggestion of outside influence on their deliberations that could be made were those deliberations not secret.

Clause 18 - Powers of judge advocate

428.           This clause is based on existing section 134 of the Defence Force Discipline Act 1982 .  This clause sets out the powers of the judge advocate in a court martial.

429.           Subclause 18(1) requires the judge advocate to make such rulings and exercise any discretion which would be given or exercised by a judge in a trial by jury, in accordance with the law in force in the Jervis Bay Territory.

430.           Subclause 18(2) provides for the judge advocate to sit without the members of the court martial when exercising any discretions or giving any rulings if a judge in a trial by jury in the Jervis Bay Territory would sit in the absence of the jury in making the same kinds of rulings or exercising the same kinds of discretions, in accordance with the law in force in that Territory.

431.           Subclause 18(3) preserves the role of the members of the court martial in imposing punishments or making orders following a conviction, and the role of the judge advocate in giving rulings of law arising from a court martial’s determination of what punishment to impose or order to make.  In the Jervis Bay Territory, both these functions would be exercised by the Judge alone.

432.           Subclause 18(4) provides for certain rulings of the judge advocate to be binding on the court martial.  These are rulings under subclauses 18(1) and (3) outlined above, rulings in relation to an application for adjournment or objections to the charge under subsections 141(5) or (6) of the Defence Force Discipline Act 1982 , or rulings which grant an application for the charge to be tried by the Military Court (subclause 20(2) of this Schedule).

433.           Subclause 18(5) allows the judge advocate to exercise such powers of the court martial or the President of the court martial as are necessary for the performance of their duties if it is sitting without the members of the court martial.  An example where this may be necessary may include, but is not limited to, a process similar to a ‘voir dire’ in civilian criminal proceedings.

434.           Subclause 18(6) provides that the powers conferred on the judge advocate under this item are in addition to other powers conferred by the Defence Force Discipline Act 1982 , the regulations or the rules of procedure.

Division 5—Dissolution of court martial

Clause 19 - General provisions

435.           This clause is based on existing section 125 of the Defence Force Discipline Act 1982 .

436.           Subclause 19(1) gives the judge advocate power to direct the convening superior authority to dissolve the court martial where he or she considers that it is desirable to do so.  This may be due to the exigencies of service or for any other reason.  Examples of such circumstances may include, but are not limited to, the ill health of members.  This power only exists after the court martial is assembled but before it is sworn or affirmed.

437.           Subclause 19(2) requires the judge advocate to direct the convening superior authority to dissolve the court martial if the judge advocate considers it is in the interests of justice to do so.  This requirement only applies after the court martial is sworn or affirmed.

438.           Subclause 19(3) requires the convening superior authority to dissolve a court martial in two circumstances.  The first is that, after the court martial is sworn or affirmed, there is an insufficient number of members to properly constitute the court martial.  The second circumstance is that the judge advocate is unable to attend at any time after the accused person’s plea has been recorded.

439.           Subclause 19(4) requires the judge advocate to direct the convening superior authority to dissolve the court martial if the court martial has adjourned the proceedings and the judge advocate considers that it will not be practicable to continue the hearing at a later date due to the exigencies of service.

440.           Subclause 19(5) provides that, if a court martial is dissolved under this clause, the convening superior authority must refer the charge to the DMP.  The DMP then has a range of options, including, but not limited to, directing that the charge not be proceeded with, directing a superior authority to convene a new court martial or instituting a proceeding in the Military Court (see new section 103E inserted by Item 73 in Schedule 1 of this Bill).  Given the court martial will only have been convened where the Military Court determined it necessary, but not possible, to hear the trial overseas, it is expected the DMP would not institute proceedings in the Military Court following a dissolution of a court martial unless circumstances had changed such that it was reasonably expected that the Military Court would now be able to hear the trial (whether in Australia or overseas).

441.           Subclause 19(6) provides that, if a court martial is dissolved after convicting a person but before taking action under Part IV (Punishments and orders), the DMP may direct the convening superior authority to convene another court martial to take action under Part IV.  Subclause 19(7) requires the new court martial to hear any evidence relevant to the determination of what punishment should be imposed or what order should be made under Part IV.

442.           Subclause 19(8) provides that a member of a court martial who convicted a person is not to be taken to be biased for the purpose of convening a new court martial to take action under Part IV following a direction under subclause 19(6).

Clause 20 - Application for charge to be tried by the Military Court          

443.           This clause allows the accused person to apply for the court martial to be dissolved due to a change of circumstances which make it possible for the charges to be tried by the Military Court.  However, this application may only be made prior to the accused person entering a plea.  The court martial will only have been convened as a result of a decision by the Military Court that it was necessary to sit outside Australia for the trial but it was not possible to do so (clause 51 of the Military Court of Australia Bill).  A change in circumstances could be either that it is no longer necessary for the Military Court to sit outside of Australia, or that it is now possible for it to do so where it was not previously.

444.           Subclause 20(2) provides that the judge advocate must grant the application and direct the convening superior authority to dissolve the court martial if the judge advocate is satisfied that, due to the change in circumstances, it would be possible for the charge or charges to be tried by the Military Court (whether in or outside Australia).

445.           Subclause 20(3) requires a convening superior authority to refer the charge or charges to the DMP where it dissolves a court martial under subclause 20(2).  The DMP can either direct that the charge not be proceeded or institute a proceeding in the Military Court (see new subsections 103E(4) and (5) inserted by Item 73 in Schedule 1 of this Bill).

Part 2—Defence Force magistrates

446.           Part 2 of Schedule 3B contains provisions for the trial of service offences by a Defence Force magistrate, when the Military Court has determined that it is necessary, but not possible, for it to sit overseas.  Division 1 provides for the referral of a charge or case to a Defence Force magistrate.  Division 2 provides for trial by a Defence Force magistrate.  Division 3 provides for the discontinuance of Defence Force magistrate proceedings.

Division 1 - Referral of charge to Defence Force magistrate etc.

Clause 21 - Referral of charge or case to Defence Force magistrate          

447.           This clause is based on existing subsection 129(2) of the Defence Force Discipline Act 1982 , and sets out when a superior authority must refer a charge to a Defence Force magistrate for trial.

448.           Subclause 21(1) requires a charge must be referred to a Defence Force magistrate if the DMP directs the superior authority to do so, following either a decision by the Military Court that it is necessary, but not possible, for it to sit outside of Australia under clause 51 of the Military Court of Australia Bill 2012, or the dissolution of a court martial or discontinuance of a proceeding before a Defence Force magistrate.

449.           Subclause 21(2) requires a charge to be referred to a Defence Force magistrate if the DMP directs the superior authority to do so following the discontinuance of proceedings before a Defence Force magistrate after conviction but prior to action being taken under Part IV (Punishments and orders).

450.           Subclause 21(3) provides that a charge or case can only be referred to a Defence Force magistrate under this clause.

Clause 22 - Judge Advocate General to nominate Defence Force magistrate

451.           This clause is based on existing section 129C of the Defence Force Discipline Act 1982 .  This clause requires the Judge Advocate General to nominate a Defence Force magistrate to try a charge before the superior authority can refer a charge to the Defence Force Magistrate.  The same requirement must be met before the superior authority can refer a case to a Defence Force magistrate to take action under Part IV (Punishments and orders).

Clause 23 - Jurisdiction and powers of Defence Force magistrate

452.           This clause is based on existing section 129 of the Defence Force Discipline Act 1982 .  Subclause 23(1) confers on a Defence Force magistrate the same jurisdiction and powers as a restricted court martial (including the powers of the judge advocate of a restricted court martial).  This means that Defence Force magistrates have more limited options for punishments than a general court martial.

453.           Subclause 23(2) also confers jurisdiction to take action under Part IV (Punishments and orders) if the case was referred to the Defence Force magistrate under subclause 21(2) of this Schedule (proceedings before a Defence Force magistrate discontinued after conviction but before Part IV action is taken).  The note to the clause clarifies that, if a case is referred to a Defence Force magistrate because of a direction under subclause 21(2), the Defence Force magistrate must hear evidence before taking action under Part IV. 

Clause 24 - Appointment of Defence Force magistrate      

454.           This clause is based on existing section 127 of the Defence Force Discipline Act 1982 .  This clause provides for the Judge Advocate General to appoint an officer to be a Defence Force magistrate by instrument in writing.  It also limits eligibility for appointment as a Defence Force magistrate to officers who are members of the judge advocates’ panel.  Section 196 of the Defence Force Discipline Act 1982 provides for there to be a judge advocates’ panel.  The judge advocates’ panel is a panel from which judge advocates and Defence Force magistrates are drawn to hear matters.

Clause 25 - Oath or affirmation of Defence Force magistrate       

455.           This clause is based on existing section 128 of the Defence Force Discipline Act 1982 .  This clause requires a Defence Force magistrate to make and subscribe an oath or affirmation in accordance with the form in Schedule 4, before the Defence Force magistrate can proceed to discharge the duties of their office.

456.           Subclause 25(2) requires the oath or affirmation to be made before the Judge Advocate General or an officer authorised by the Judge Advocate General, in writing, for that purpose.

Division 2—Trial by Defence Force magistrate

Clause 26 - Application of this Division

457.           This Division is based on existing section 135 of Defence Force Discipline Act 1982 .  Clause 26 explains that this Division sets out certain provisions relating to trial by Defence Force magistrate.  The note confirms that this Division does not exclusively outline the manner in which a trial by Defence Force magistrate is to be managed.  Part 3 of Schedule 3B outlines procedure for trials.  Other provisions relating generally to service tribunals (courts martial, Defence Force magistrates and summary authorities) are contained in Division 3 of Part VIII of the Defence Force Discipline Act 1982 .

Clause 27 - Plea of guilty or not guilty

458.           This clause is based on existing section 135 of the Defence Force Discipline Act 1982 .  It sets out the process for requesting a plea from the accused person in relation to the charge and outlines what the Defence Force magistrate must do based on the plea.

459.           Subclause 27(1) requires the Defence Force magistrate to ask the accused person whether they plead guilty or not guilty before the Defence Force magistrate begins to hear the evidence on the charge.

460.           Subclauses 27(2) to (4) relate to pleas of guilty by the accused.

461.           Subclause 27(2) requires the Defence Force magistrate to convict the accused person if the accused person pleads guilty and the judge advocate is satisfied that the accused person understands the effect of the plea.

462.           Subclause 27(3) requires the Defence Force magistrate to record a plea of not guilty and proceed to hear the evidence if the accused person pleads guilty and the judge advocate is not satisfied that the accused person understands the effect of the plea.

463.           Subclause 27(4) sets out the requirements if the accused person pleads guilty to a charge other than the first charge, where there are two or more charges which are stated in the alternative.  In this case, the Defence Force magistrate must accept the plea and convict the accused person, provided that the DMP notifies the Defence Force magistrate that they have no objection to the acceptance of the plea.  Otherwise, the Defence Force magistrate must record a plea of not guilty and proceed to hear the evidence.

464.           Subclauses 27(5) to (7) relate to pleas of not guilty, a refusal to plead or withdrawal of a guilty plea by the accused.

465.           Subclause 27(5) requires the Defence Force magistrate to record a plea of not guilty and proceed to hear the evidence on the charge if the accused person pleads not guilty.

466.           Subclause 27(6) applies where the accused person refuses to plead or does not plead intelligibly.  In these circumstances, the Defence Force magistrate must record a plea of not guilty and proceed to hear the evidence on the charge.

467.           Subclause 27(7) applies where the accused person pleads not guilty, later withdraws that plea and pleads guilty, and the judge advocate is satisfied that the accused person understands the effect of pleading guilty.  In this case, the Defence Force magistrate must substitute a plea of guilty for the plea of not guilty and proceed accordingly under this clause by convicting the accused.

Clause 28 - Sufficiency of evidence

468.           This clause is based on existing section 135 of the Defence Force Discipline Act 1982 .  This clause outlines what a Defence Force magistrate must do based on findings about the sufficiency of evidence following the prosecution adducing its evidence on the charge.

469.           Subclause 28(1) requires the Defence Force magistrate to dismiss a charge if it rules that the evidence is insufficient to support the charge.

470.           Subclause 28(2) requires the Defence Force magistrate to proceed with the trial if it rules that the evidence is sufficient to support the charge.

471.           Subclause 28(3) only mandates the Defence Force magistrate to give a ruling about the insufficiency of evidence if the accused person has submitted that the Defence Force magistrate should so rule or the ruling is required in the interests of justice.  Subclause 28(4) only requires the Defence Force magistrate to rule that there is sufficient evidence to support the charge if the accused person submits the Defence Force magistrate should rule the evidence is insufficient to support the charge and the Defence Force magistrate considers the evidence to be sufficient.  This ensures that if the accused person submits that the Defence Force magistrate should rule on the insufficiency of the evidence, the accused person can be left in no doubt as to the Defence Force magistrate’s views as to the sufficiency or otherwise of the evidence.

Clause 29 - Finding of guilty or not guilty

472.           This clause is based on existing section 135 of the Defence Force Discipline Act 1982 .  It requires the Defence Force magistrate to convict an accused person whom a Defence Force magistrate has found guilty, and acquit an accused person whom the Defence Force magistrate has found not guilty.

Clause 30 - Action after conviction

473.           This clause is based on existing section 135 of the Defence Force Discipline Act 1982 .  This clause provides that where a Defence Force magistrate convicts a person, it must take action under Part IV (Punishments and orders) in relation to the convicted person.

474.           Subclause 30(2) requires the Defence Force magistrate to hear any evidence relevant to the determination of the action that should be taken to impose punishments or make orders under Part IV.

Division 3—Discontinuance of proceeding

Clause 31 - General provisions

475.           This clause is based on existing section 129A of the Defence Force Discipline Act 1982 .  It provides for a superior authority to terminate references to a Defence Force magistrate in certain circumstances and outlines the consequences of doing so.

476.           Paragraph 31(1)(a) requires the superior authority to terminate the reference to a Defence Force magistrate where they consider it is desirable to do so by reason of the exigencies of service or for any other reason.  This power only exists before the Defence Force magistrate begins to try the charge.

477.           Paragraph 31(1)(b) requires the superior authority to terminate the reference if it appears to the Defence Force magistrate that it would not be in the interests of justice to continue, and the Defence Force magistrate directs the superior authority to terminate the reference.  This power applies after the Defence Force magistrate begins to try the charge or hear the case.

478.           Subclause 31(2) requires the superior authority to terminate the reference if, at any time after the Defence Force magistrate begins to try the charge or hear the case, the Defence Force magistrate is unable to conclude the trial or hearing.  Reasons for this include, but are not limited to, death, illness and the exigencies of service.

479.            Subclause 31(3) provides that, if a reference to a Defence Force magistrate is terminated under subclause (1) or (2), the superior authority must refer the charge to the DMP.  The DMP then has a range of options, including, but not limited to, directing that the charge not be proceeded with, directing a superior authority to convene a new court martial or instituting a proceeding in the Military Court (see new section 103E inserted by Item 73 in Schedule 1 of this Bill).  The reference to the Defence Force magistrate would only have occurred because the Military Court determined it necessary, but not possible, to hear the trial overseas.  It is expected the DMP would not institute proceedings in the Military Court following a termination of reference unless circumstances had changed such that it was reasonably expected that the Military Court would now be able to hear the trial (whether in Australia or overseas).

480.           Subclause 31(4) provides that, if a reference is terminated after convicting a person, but before taking action under Part IV (Punishments and orders), the DMP may direct the superior authority to refer the charge or case to a new Defence Force magistrate, or convene a court martial for the purpose of taking Part IV (Punishments and orders) action where the DMP considers that it would be more appropriate for the matter to be dealt with by court martial.

481.           Subclause 31(5) requires a court martial or Defence Force magistrate, which exists because of the application of subclause 31(4), to hear any evidence relevant to the determination of the action prior to taking action in accordance with subclause 31(4).

482.           Subclause 31(6) provides that a reference to a superior authority (the ‘first superior authority’) in this clause includes a superior authority who replaces the first superior authority.  A superior authority may be replaced in the case of promotion or postings.

Clause 32 - Application for charge to be tried by the Military Court

483.           This clause provides for the accused person to apply for the reference to the Defence Force magistrate of the first charge to be terminated due to a change of circumstances which makes it possible for the charges to be tried by the Military Court.  The reference to the Defence Force magistrate will only have been made as a result of a decision by the Military Court that it was necessary for it to sit outside Australia for the trial but it was not possible to do so (clause 51 of the Military Court of Australia Bill).  The change in circumstances could relate to circumstances in which it is no longer necessary for the Military Court to sit outside of Australia, or that it is now possible for it to do so where it was not previously.

484.           Subclause 32(2) provides that the Defence Force magistrate must grant the application and direct the superior authority to terminate the reference if the Defence Force magistrate is satisfied that, due to the change in circumstances, it would be possible for the charge or charges to be tried by the Military Court (whether in or outside of Australia).

485.           Subclause 32(3) requires a superior authority to refer the charge to the DMP where it terminates a reference to a Defence Force magistrate under subclause 32(2).  The DMP can either direct that the charge not be proceeded or institute a proceeding in the Military Court (see subsections 103E(4) and (5) inserted by Item 73 in Schedule 1 of this Bill).

 

Part 3—Procedure for trials

Division 1—General provisions for trials

Clause 33 - Public hearings

486.           This clause is based on existing section 140 of the Defence Force Discipline Act 1982 .  Subclause 33(1) provides that, subject to this clause, the hearing of proceedings before a court martial or a Defence Force magistrate must be in public.  ‘Public’ is to be read widely to include not only other ADF members, but also

non-ADF members.  This is consistent with clause 56 of the Military Court of Australia Bill, which provides that the court’s jurisdiction is generally to be exercised in open court (subject to limited exceptions).

487.           Subclause 33(2) gives the President of a court martial or a Defence Force magistrate power to order that some or all of the members of the public be excluded from all or a specific part of the proceedings, or, that no report of, or about, the whole or a specific part of the proceedings be published.  The President or Defence Force magistrate can only make these orders if they consider it necessary in the interests of the security or defence of Australia, the proper administration of justice or public morals.  Subsection 33(3) requires the President of a court martial to first consult with the judge advocate prior to making an order under subclause 33(2).  Subsection 33(4) provides that, if court martial or Defence Force magistrate proceedings are held in a secure place, the appropriate service chief (being the service chief from the same service as the accused) must make arrangements to allow the public to have reasonable access to the proceeding, subject to any order made under subclause 33(2). Subsection 33(5) provides that, for the purpose of subclause 33(4), secure place means a place where entry is controlled by guards who are constables or members of the Defence Force.

Clause 34 - Unfitness to be tried

488.           This clause replaces existing subsection 145(2) of the Defence Force Discipline Act 1982 , which provides that if a court martial or Defence Force magistrate finds a person unfit to be tried, they must direct that the person be kept in strict custody until the pleasure of the Governor-General is known.

489.           This clause provides that, if it appears to a court martial or Defence Force magistrate that a person may not be able to understand the proceedings against him or her and accordingly may be unfit to be tried, the court martial or Defence Force magistrate must refer the charge to the DMP.  The DMP can either direct that the charge not be proceeded with or institute a proceeding in the Military Court (see subsections 103E(4) and (5) inserted by Item 73 in Schedule 1 of this Bill).  The provisions for the Military Court to deal with persons found unfit to be tried are aligned with provisions of the Crimes Act 1914 (see Part 10 of the Military Court of Australia Bill).

Clause 35 - Mental impairment at the time of conduct constituting service offence

490.           This clause replaces existing subsections 145(4) and (5) of the Defence Force Discipline Act 1982 , which provides that if a court martial or Defence Force magistrate finds a person was suffering from mental impairment at the time of committing the offence, they must acquit the accused and direct that the accused be kept in strict custody until the pleasure of the Governor-General is known.

491.           Subclauses 35(1), (2) and (3) relate to prescribed acquittals.  Subclause 35(1) provides that if a court martial or Defence Force magistrate finds a person was suffering mental impairment at the time of committing the offence, they must find the accused not guilty of the service offence because of mental impairment and acquit the accused.

492.           Subclause 35(2) applies the definition of ‘mental impairment’ in section 7.3 of the Criminal Code for the purpose of a proceeding before a court martial or Defence Force magistrate.  Subsection 7.3(4), which requires the prosecution to seek the leave of court to rely on section 7.3, applies as if the reference to ‘court’ were instead a reference to court martial or Defence Force magistrate, as the case may be.

493.           Subclauses 35(3) to (4) provide for the court martial or Defence Force magistrate to deal with the accused person in the same way as the Military Court under Part 10 of the Military Court Act of Australia Act 2012 , subject to some modifications. 

494.           Subclause 35(3) provides that the court martial or Defence Force magistrate may, by order, release the person, release the person subject to certain conditions (not exceeding three years), or may make any other order it considers necessary having regard to the best interests of the accused person, the safety of any other person to whom the order relates and the safety of the community generally.  Examples of such orders may include, but are not limited to, orders requiring a person to remain at a certain location, or not to leave a certain geographic area.  An order should not be made for detention of a person.

495.           Subclause 35(4) provides that an order under paragraph 35(3)(b) must specify the period it is to have effect, which must not be more than three years.

496.           Subclauses 35(5), (6) and (7) provide a mechanism by which an order of a court martial or Defence Force magistrate relating to a prescribed acquitted person may be varied or set aside.  Subclause 35(5) provides that the DMP or person to whom the order relates may apply for an order to be varied or set aside.  Under subclauses 35(6) and (7), an application to vary or set aside must be made to a service chief (if the acquitted person is a defence member at the time of application) or the Attorney-General (in any other case), who may then vary or set aside the order .  This provides recourse to persons who are no longer members of the ADF.

497.           The discretion granted to the Attorney-General or service chief allows for flexibility if a person’s circumstances change.  Decision making would involve varying or setting-aside of an order made by a court martial or Defence Force magistrate arising from a decision to acquit a person on the basis of consideration of a person’s mental capacity, which would otherwise remain in force.  The

Attorney-General or service chief (as the case may be) may independently consider the appropriateness of the order at the time of an application. 

 

Clause 36 - Notice of alibi    

498.           This clause is based on existing section 145A of the Defence Force Discipline Act 1982 .  It sets out requirements for the accused person if they seek to rely on an alibi as part of their defence in either a court martial or a Defence Force magistrate trial.  It also imposes a requirement on the superior authority to notify the accused of these requirements.

499.           Subclause 36(1) requires a superior authority which convenes a court martial or refers a charge to a Defence Force magistrate to give a copy of this clause to the accused and inform them of the requirements set out in subclauses 36(2), (3) and (5).  The requirement to inform would go beyond merely providing them with a copy of those clauses.

500.           Subclause 36(2) imposes an obligation on the accused to give notice of the particulars of the alibi within 14 days of the order convening the court martial or referring the charge to a Defence Force magistrate.  If this is not done, the accused will need leave of the judge advocate or the Defence Force magistrate to adduce evidence in support of an alibi or to assert, other than on oath or affirmation, that they have an alibi.  Subclause 36(5) requires any notice under this clause to be given in writing to the DMP and the superior authority.

501.           Where an accused person wishes to call a person to give evidence in support of an alibi, subclause 36(3) imposes certain requirements.  Ideally, the accused will provide the name and address of the person in the notice under subclause 36(2).  If this is not possible, they must provide all information they have which may be of assistance in identifying and locating the person.

502.           Paragraph 36(3)(b) imposes an additional requirement that if the witnesses’ name and address is not provided, the accused must satisfy the judge advocate or Defence Force magistrate that they took all reasonable steps to identify the person before they are able to be called as a witness.  If they do not, leave will be required to call the person to give evidence in support of the alibi.

503.           Paragraph 36(3)(c) also imposes an obligation on the accused to provide information about an alibi witnesses’ name and address or other information which might help with identifying a person within a reasonable time, if it was not provided when the notice under subclause 36(2) was filed, but later becomes known.

504.           Paragraph 36(3)(d)  requires the accused person to assist the prosecution if the information about name and address previously provided does not lead to finding the person.

505.           Subclause 36(4) allows the DMP to adduce evidence to disprove an accused’s alibi either before or after evidence is adduced of the alibi.  This is subject to any direction by the judge advocate or a Defence Force magistrate.

506.           Subclause 36(6) sets out the definition of ‘evidence in support of an alibi’ for the purpose of this clause.

 

Clause 37 - Rules of evidence etc.

507.           This clause is based on existing section 146 of the Defence Force Discipline Act 1982 .  The rules of evidence applicable to proceedings before a court martial or Defence Force magistrate will be the rules of evidence that apply in relation to proceedings before the Military Court.  These rules are the Evidence Act 1995 and Parts 2, 4 and 4A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

508.           Part 2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides protections for children giving evidence in proceedings.  Part 4 of that Act provides various rules relating to sexual and violent offences.  Part 4A of that Act allows children and witnesses with a mental disability to be accompanied by a support person when giving evidence.

509.           It is appropriate that the same rules of evidence apply in courts martial or Defence Force magistrate trials as in the Military Court, given those service tribunals will only be hearing the trial as a result of the Military Court determining that it could not.

Clause 38 - Representatives of parties before court martial or Defence Force magistrate

510.           This clause is based on existing section 136 of the Defence Force Discipline Act 1982 and sets out who can represent a party before a court martial or Defence Force magistrate.

511.           A party in a trial can only be represented by a member of the Defence Force, a legal practitioner (defined in the Defence Force Discipline Act 1982 to mean a person who is enrolled as a barrister, a solicitor, a barrister and solicitor, or a legal practitioner of a civil court), or a person qualified to practice before the courts of the place where the trial is to be held (outside Australia).

Division 2—Use of video links and audio links

512.           The intention of the provisions under this Division is to facilitate the most effective and efficient collection of evidence that will enable a fair outcome for the accused and minimal inconvenience to witnesses or parties to the proceedings.  This clause applies regardless of whether the person giving testimony is in or outside of Australia (subclause 39(5)).

Clause 39 - Testimony by video link or audio link

513.           This clause is based on existing section 148A of the Defence Force Discipline Act 1982 .

514.           Subclause 39(1) enables the President of a court martial or a Defence Force magistrate to direct or allow a testimony to be given by video or audio link.  Subclause 39(4) provides that the power to allow evidence to be collected in this manner may be exercised either on application by the accused or the DMP, or on the President or Defence Force magistrate’s own initiative.  Subclause 39(5) provides that the clause applies whether the person giving testimony is in or outside Australia.

515.           Subclause 39(2) provides that testimony given by video or audio link is to be given on oath or affirmation unless the person giving the testimony is in a foreign country and either the law of that country does not permit the person to give testimony on oath or affirmation or the law makes it inconvenient for the person to do so.  The President or Defence Force magistrate also needs to be satisfied that it is appropriate for the person to give testimony without an oath or affirmation.  Subclause 39(3) provides that, where the testimony is given without oath or affirmation, the court martial or Defence Force magistrate is to give that testimony such weight as they consider fit in the circumstances.

Clause 40 - Appearance by persons or submissions made by video link or audio link

516.           This clause is based on existing section 148B of the Defence Force Discipline Act 1982 .  The clause provides for the appearance of persons or submissions to be made by video or audio link.  The President of a court martial or a Defence Force magistrate may direct or allow a person to appear in this manner either on application by the accused or the DMP, or on its own initiative.  This clause applies whether the person is in or outside Australia.

Clause 41 - Conditions for use of video links and audio links

517.           This clause is based on existing section 148C of the Defence Force Discipline Act 1982 , and outlines conditions associated with evidence collection through video link and audio link.  The concept of a ‘remote person’ has been introduced, meaning a person who is not physically present, but who may give testimony, appear or make a submission by video or audio link.  The concept of an ‘eligible person’ has also been included to mean a person that the court martial or Defence Force magistrate considers eligible to hear and/or see the evidence for the purposes of the proceedings.

518.           Subclauses 41(1) and (3) provide that the President of a court martial or Defence Force magistrate must not direct or allow testimony to be given or appearance of a person by video link or audio link unless they are satisfied that specific conditions are met.  The conditions in this clause include that appropriate courtroom or other facilities are in place (for example television monitors or loudspeakers) so that all eligible persons may see and/or hear the remote person and that all eligible persons located where the remote person is can see and/or hear the courtroom or other place where the court martial or Defence Force magistrate trial is sitting.

519.           The clause also requires any conditions that are prescribed by the rules of procedure or any other conditions imposed by the court martial or Defence force magistrate to be met.

Clause 42 - Putting documents to a person by video link or audio link

520.           This clause is based on existing section 148D of the Defence Force Discipline Act 1982 .  The clause outlines how documents may be put to a remote person in circumstances where the document is either present in the courtroom or at the remote person's location.  If the document is in the courtroom and needs to be put to the remote person at another location, it can be transmitted (for example, via fax or electronically) and then put to the remote person.  If the document is present in the remote person’s location, the opposite applies - the document will be physically put to them and then transmitted to the courtroom where the proceedings are taking place.

Clause 43 - Administration of oaths and affirmations

521.           This clause is based on existing section 148E of the Defence Force Discipline Act 1982 and provides for the administration of oaths and affirmations via video or audio link.  Oaths and affirmations should be administered in a manner that is as close as possible to the way it would normally be done if the person were physically present in the courtroom.  Alternatively, the court martial or Defence Force magistrate may allow a person at the remote person’s location to administer the oath or affirmation.

Clause 44 - Powers conferred on President

522.           This clause is based on existing section 148EA of the Defence Force Discipline Act 1982 , and requires the President of a court martial to seek the advice of a judge advocate before exercising a power under this Division.

Clause 45 - Evidence of certain New Zealand matters       

523.           This item is based on section 148F of the Defence Force Discipline Act 1982 , and preserves the operation of the Evidence and Procedure (New Zealand) Act 1994.

Division 3—Rules of Procedure

Clause 46 - The Court Martial and Defence Force Magistrate Rules         

524.           This clause is based on existing section 149A of the Defence Force Discipline Act 1982 .  It provides for the Judge Advocate General to make rules (by legislative instrument) about the practice and procedure to be followed by a court martial or a Defence Force magistrate and any other matter required or permitted by the Defence Force Discipline Act 1982 to be prescribed by the Rules.  Paragraph 46(a) contains a non-exhaustive list of particular matters about which the Judge Advocate General may make rules.

Part 4—Appeals and references to the Military Court

Division 1—Interpretation

Clause 47 - Interpretation

525.           This item provides for the interpretation of terms relating to an appeal to the Military Court from a decision of a court martial or Defence Force magistrate.

526.           Subclause 47(2) provides for a situation where a review of proceedings before a court martial or Defence Force magistrate occurs, and the reviewing authority substitutes the conviction imposed for a prescribed acquittal or a conviction of another service offence.  For the purposes of this Part relating to appeals and references to the Military Court, the prescribed acquittal or conviction imposed by the reviewing authority is taken to have been imposed by the court martial or Defence Force magistrate.

527.           Subclause 47(3) and (4) provides for situations where a review of proceedings before a court martial or Defence Force magistrate occurs, and the reviewing authority substitutes the original decision with its own conviction or prescribed acquittal or imposes a new punishment or order.  For the purposes of this Part relating to appeals and references to the Military Court, that new conviction, prescribed acquittal, punishment or order is taken to have been determined or imposed by the court martial or Defence Force magistrate.

528.           This ensures appeal rights flow where the reviewing authority has substituted a prescribed acquittal, or a different conviction, or taken different action under Part IV, from the court martial or Defence Force magistrate.  For example, if a reviewing authority substitutes a punishment of 10 years imprisonment with a punishment of 15 years, the person can appeal the imprisonment of 15 years to the Military Court as if that had been the decision of the court martial or Defence Force magistrate.

Division 2—Bringing Appeals

Clause 48 - Allowable appeals

529.           This clause confers jurisdiction on the Military Court to hear and determine appeals against convictions, prescribed acquittals, punishments and orders imposed by a court martial or Defence Force magistrate. 

530.           The note to the clause clarifies that this is part of the Military Court’s original jurisdiction and, except in relation to certain matters, must be exercised by a Full Court.  The note also clarifies that the provision is affected by subclauses 47(2), (3) and (4) in Schedule 3B, which provide that certain decisions of reviewing authorities are taken to be decisions of the court martial or Defence Force magistrate for these purposes.

Clause 49 - Leave to appeal

531.           This clause provides that the Military Court may hear an appeal based on an error of fact, but only with the leave of the Military Court.  Leave will not be required if the appeal involves a question of law alone.

532.           Clause 55 of new Schedule 3B provides for the constitution of the court required for the purpose of considering a leave application.

Clause 50 - Who may appeal

533.           Subclause 50(1) provides that a convicted person may make an application for leave and bring an appeal against their conviction, a punishment imposed in respect of that conviction or restitution or reparation order made by the court martial or Defence Force magistrate.

534.           Subclause 50(2) provides for a prescribed acquitted person (that is, a person acquitted on the basis of mental impairment at the time of the conduct constituting the offence) to make an application for leave or to bring an appeal against their prescribed acquittal or an order flowing from that prescribed acquittal (such as a conditional release or other order considered necessary having regard to the best interests of the accused person, the safety of any other person to whom the order relates and the safety of the community generally) .  

535.           Subclause 50(3) prevents a prescribed acquitted person from seeking leave or bringing an appeal in respect of their prescribed acquittal if, during the trial or on review of those proceedings, the defence adduced evidence of mental impairment.  This would prevent a person from arguing that there should be a prescribed acquittal, and then seeking to overturn a decision which accepts that argument.

536.           Subclause 50(4) provides for appeals by the DMP.  The DMP may seek leave, or bring an appeal, in relation to a punishment imposed, an order that a conviction be recorded without punishment, or a restitution or reparation order.  The DMP may not appeal against an acquittal or prescribed acquittal (including decisions about an order flowing from a prescribed acquittal).

Clause 51 - Instituting an appeal

537.           This clause provides for an appeal to be filed by way of written notice to the Military Court in accordance with the requirements in the Military Court Rules.  It must specify the grounds on which the appeal is instituted.  This notice is required in addition to an application to seek leave to appeal, in circumstances where leave is required.

Clause 52 - Time for appealing—convicted person or prescribed acquitted person

538.           This clause provides for time limits in which a convicted or prescribed acquitted person must lodge an application for leave to appeal or an application to bring an appeal.  These time limits are important so as to achieve a level of finality over proceedings.

539.           Subclause (1) clarifies that this clause applies in relation to an application of leave to appeal, or a notice of appeal for an appeal involving a question of law alone that is proposed to be filed by a convicted person or a prescribed acquitted person.  Time limits will apply in relation to each application specified in the clause.

540.           The time limits reflect the rights of the convicted person or prescribed acquitted person to have decisions of the court martial or Defence Force magistrate reviewed under Part VIIIA of the Defence Force Discipline Act 1982 .  These rights will be preserved and include an automatic review under section 152 of the Defence Force Discipline Act 1982 as well as discretionary review, initiated by the convicted or prescribed acquitted person, under sections 153 and 155.

541.           As the section 152 review is automatically provided to all persons following a decision by a court martial or Defence Force magistrate, subclause 52(6) prevents an appeal or an application for leave to appeal from being filed before that review has been completed and notice of the results of that review has been given to the person.

542.           Subclauses 52(2) to (4) together set the time limits dependent upon which appeal rights the convicted or prescribed acquitted person chooses to exercise.  If they choose nothing beyond the automatic section 152 review, appeal applications or notices to the Military Court must be filed before the end of 30 days after the notice of the results of the section 152 review is received.

543.           After the section 152 review results are received, the convicted or prescribed acquitted person has 30 days in which to petition for further review under section 153.  If they choose to exercise this right, the time limit to file an appeal to the Military Court is extended until 30 days after the notice of the results of the section 153 review is received.  If, during that time, they choose to exercise their right to an additional section 155 review, the appeal time limit is again extended until 30 days after the notice of that review is received.

544.           The Defence Force Discipline Act 1982 provides no time limit on filing for a section 155 review.  Therefore, subclause 52(4) provides that a person can only appeal to the Military Court following a section 155 review if that review commences within either of the time limits imposed by subclauses 52(2) or (3).  This ensures that if the time limit for filing an appeal or application for leave to appeal expires as a result of subclauses 52(2) or (3), it is not enlivened as a result of a later petition by the convicted or prescribed acquitted person for a section 155 review.

545.           Subclause 52(5) provides a general power for the Military Court to extend the time period within which the notice or application may be filed.  It can only order an extension if it is in the interests of justice to do so.

Clause 53 - Time for appealing—Director of Military Prosecutions

546.           This clause provides for the time limits that the DMP has in which to lodge an application for leave to appeal or an application to bring an appeal.  Time limits are important so as to achieve a level of finality over proceedings.

547.           The time limits imposed on the DMP reflect the importance of allowing the convicted or prescribed acquitted person to exercise their internal review rights and not having these removed by the DMP lodging a notice or bringing an appeal to the Military Court.  Where the convicted or prescribed acquitted person exercises these rights, the DMP will be notified, through administrative arrangements, that an internal review is underway.  This enables the DMP to understand the time limits that will apply for them to file an appeal.

548.           Subclause 53(1) clarifies that this clause applies in relation to an application for leave to appeal, or a notice of appeal for an appeal involving a question of law alone, that is proposed to be filed by the Director of Military Prosecutions in relation to trial proceedings that have resulted in a conviction.  Time limits will apply in relation to each application specified in the clause.

549.           Subclauses 53(2) to (4) together set the time limits dependent upon which appeal rights the convicted person or prescribed acquitted person might choose to exercise.  If they choose nothing beyond the section 152 review, appeal applications or notices to the Military Court must be filed within 30 days after the end of the ‘initial appeal period’.  The ‘initial appeal period’ is calculated by reference to subclause 52(2).  It starts when the notice of the results of the section 152 review is received by the person and ends 30 days after that notice is received.  This gives the accused person a chance to lodge an appeal or petition for a section 153 appeal, before the DMP can lodge an appeal.

550.           If the convicted or prescribed acquitted person chooses to exercise their section 153 right, the time limit for the DMP to file an appeal to the Military Court is extended (‘extended appeal period’) until 30 days after the review is completed.  If, during that time, the accused chooses to exercise their right to a section 155 review, the DMP’s appeal time limit is again extended until 30 days after that review is completed.

551.           The time limits for the DMP are based on when the review is completed, whereas the time limits for the accused are based on when they receive notice of the results of the review.  This is because an accused will not be aware of when the review has been completed until they receive notice of the results of the review, whereas the DMP will be made aware of the completion of the review by way of administrative arrangements.

552.           The Defence Force Discipline Act 1982 provides no time limit on filing for a section 155 review.  Therefore, subclause 53(4) provides that the DMP can only appeal to the Military Court following a section 155 review, if that review commences within either of the time limits imposed by subclauses 53(2) or (3).  This ensures that if the time limit for filing an appeal or application for leave to appeal expires as a result of subclauses 53(2) or (3), it is not enlivened as a result of a later petition by the convicted or prescribed acquitted person for a section 155 review.

553.           Subsection 53(5) provides a general power for the Military Court to extend the time period within which the notice or application may be filed.  It can only order an extension if it is in the interests of justice to do so.

554.           Subsection 53(6) prevents the DMP from filing a notice or application in the Military Court before the day on which any section 153 review or section 155 review (as the case may be) is completed.  This would prevent simultaneous review by different bodies.

Clause 54 - Effect of appeal on review of trial proceedings under Part VIIIA

555.           Subclause 54(1) provides that if a convicted person appeals to the Military Court against a conviction, or against a punishment imposed or an order made in respect of a conviction, any internal review in progress must be discontinued in relation to that part of the appeal.  The person’s further review rights under Part VIIIA are then extinguished in relation to that part of the conviction or punishment to which the convicted person appealed.

556.           Subclause 54(2) provides that if a prescribed acquitted person appeals to the Military Court against his or her prescribed acquittal, any internal review in progress must be discontinued in relation to that part of the appeal, and the prescribed acquitted person will have no further review rights under Part VIIIA in relation to the prescribed acquittal.

557.           Subclause 54(3) confirms that, if the DMP appeals, the convicted or prescribed acquitted person’s rights to further review are also extinguished.

558.           Subclause 54(4) provides that, for the purpose of this clause, trial proceedings includes any review conducted under Part VIIIA.  This is necessary to preclude a situation where a section 155 review is allowed on the basis it is a review of the decision of the section 153 reviewing authority, as opposed to the decision of the court martial or Defence Force magistrate.

Clause 55 - Certain applications to be heard by single Judge

559.           This clause provides that a single Judge must hear and determine an application:

  • for leave to appeal;
  • for an extension of time to file a notice of appeal or an application for leave to appeal;
  • for leave to amend the grounds of appeal;
  • for the Military Court to make an order regarding stay of a determination or order; or
  • for leave to adduce further evidence to the Full Court of the Military Court.

560.           However, where a Judge directs that the application should be heard and determined by a Full Court, or where proceedings have already been assigned to a Full Court and the Full Court finds that it would appropriate to consider the application, then the Full Court must hear the application.

Clause 56 - Suspension of operation of restitution orders and reparation orders

561.           This clause is based on existing section 173 of the Defence Force Discipline Act 1982 .  It ensures that a restitution order or a reparation order made by a court martial or a Defence Force magistrate is suspended until the end of the period of appeal under subclause 52(2) to which the appeal or the application relates.  If, however, a notice of appeal or an application for leave to appeal is filed, then a restitution order or a reparation order made by a court martial or a Defence Force magistrate is suspended until the appeal is determined or is dismissed, withdrawn or abandoned.  

Clause 57 - Stay of determination or order that is subject to appeal etc.

562.           This clause provides that the Military Court may make an order, with or without conditions, to stay or otherwise affect the operation or implementation of a determination or order made in, or in relation to, the trial proceedings to which the appeal or application relates.  This will enable the Military Court to make orders where, for example, the implementation of a decision under appeal may prejudice the rights of the convicted person.  For example, it would prevent the dismissal of an ADF member in such circumstances.

563.           This clause will not affect the operation of any provisions made by or under any other Act or by the Military Court Rules for, or in relation to, the stay or suspension of determinations or orders of a court martial or a Defence Force magistrate.

Clause 58 - Right to attend

564.           This clause provides that the convicted or prescribed acquitted person and the DMP are entitled to attend the hearing of the appeal unless the Military Court orders otherwise, or unless directs or allows the person to attend via video link or audio link or other appropriate means.

Clause 59 - Custody and bail

565.           This clause provides that Part 8 of the Military Court Act applies to this Schedule in relation to an appeal as if any references to accused persons were references to the appellant, and any reference to a proceeding in respect of charges of service offences of the Military Court Act were references to the appeal.

566.           This ensures that the Military Court may remand the appellant in custody or grant the appellant bail during the period of time that the Military Court is dealing with the appeal from a court martial or Defence Force magistrate.

Division 3—Powers of Military Court on appeal

Clause 60 - Military Court may give such judgment as is appropriate

567.           This clause provides for the powers for the Military Court when dealing with an appeal. The Military Court may dismiss or allow an appeal, and take any other action which the Court considers is appropriate in the circumstances.

568.           This other action may include setting aside a conviction or acquitting the person of the charge, setting aside the punishment or setting aside the punishment and ordering a substituted punishment , setting aside or varying a restitution or reparation order even if the conviction to which the order relates is not set aside or the appeal is on punishment only.

Clause 61 - Appeals against convictions

569.           This clause requires the Military Court to allow an appeal against a conviction if the Military Court is satisfied that the court martial or Defence Force magistrate made a wrong decision on a question of law, or that there has been a substantial miscarriage of justice in the trial proceedings.

570.           However, subclause 61(2) enables the Military Court to dismiss the appeal if it is satisfied that a wrong decision on any question of law was made, but that there had not been a substantial miscarriage of justice.

571.           On allowing an appeal against conviction, the Military Court may set aside the conviction, or acquit the person.  The note to the section clarifies that, if the Military Court sets aside a conviction, the DMP may institute new proceedings or direct that the charge not be proceeded with.

 

Clause 62 - Appeals against punishments and orders

572.           This clause requires the Military Court to allow an appeal against a punishment if the Court is satisfied that another punishment, either more or less severe, is warranted in law.  Likewise, it must allow an appeal against an order that a conviction be recorded without punishment if the Military Court is satisfied that a punishment (as opposed to none) is warranted in law.

573.           If the Military Court allows an appeal against punishment, the Military Court may set aside the punishment and/or order a new punishment under Part 9 of the Military Court Act.  Subclause 62(3) applies Part 9 of the Military Court Act as if the person had been convicted by the Military Court for the purposes of ordering a new punishment under Part 9 of the Military Court Act.

574.           The Military Court can only set aside a punishment if it could have imposed the punishment under Part 9 of the Military Court Act (which excludes the ability for it to impose a reprimand), or there was an error of law.  Otherwise, it is restricted to punishments set out in Part 9 of the Military Court Act.

575.           Where the Military Court allows an appeal against an order that a conviction be recorded without punishment, it can set aside the order, set aside a related undertaking to be of good behaviour and/or take action under Part 9.  Where the Court sets aside a conviction to which there is a related undertaking, the Court would be generally expected to set aside that undertaking.  Subclause 62(7) applies Part 9 of the Military Court Act as if the person had been convicted by the Military Court for the purposes of ordering a new punishment under Part 9 of the Military Court Act.

576.           The Military Court also has the discretion to allow an appeal against a restitution or reparation order if it is satisfied that it is in the ‘interests of justice’ to do so.  The requirement to be ‘in the interests of justice’ is consistent with section 106 of the Military Court Act.  Where the appeal is allowed, the Military Court may set aside or vary the order.

Clause 63 - Appeals against prescribed acquittals

577.           This clause provides for the Military Court’s discretion to allow an appeal against a prescribed acquittal if it is in the ‘interests of justice’ to do so.  The requirement to be ‘in the interests of justice’ is consistent with section 106 of the Military Court Act.  Where the appeal is allowed, the Military Court may set aside the prescribed acquittal.  The note to subclause 63(2) clarifies that, if the Military Court sets aside a prescribed acquittal, the DMP may institute new proceedings or direct that the charge not be proceeded with.

578.           The Military Court may also allow an appeal against an order made by a court martial or Defence Force magistrate under subclause 35(3) of Schedule 3B in relation to a prescribed acquitted person if it is satisfied that it is ‘in the interests of justice’ to do so.  Orders made under subclause 35(3) include unconditional release, release of a person into the care of a responsible person, release on condition that a person attends assessment of mental impairment or treatment, or any other order considered necessary having regard to the best interests of the accused person, the safety of any other person to whom the order relates and the safety of the community generally.  Orders must specify the period for which they operate not exceeding three years. 

579.           Where the Military Court allows such an appeal, it can set aside the order and take any further action which would have been available to it if the prescribed acquittal was made by the Military Court.  The Military Court is able to make the same orders under subsection 164(1) of the Military Court Act as the court-martial or Defence Force magistrate under subclause 35(3) of Schedule 3B.

Clause 64 - Evidence on appeal

580.           The Military Court must have regard to the evidence given in the trial and any further evidence considered by a reviewing authority.  It may also draw inferences of fact from that evidence.

581.           Further, this clause enables the Military Court to receive further evidence during the appeal if satisfied it is in the ‘interests of justice’ to do so.  Leave must be granted for this to occur.  If leave is granted, further evidence can be received on affidavit, by oral examination or by way of video or audio link or any other means consistent with the Military Court Act or any other law of the Commonwealth (for example, the Evidence Act 1995 ).  The note to the clause clarifies that the Military Court is not required to receive further evidence, and uses the example of where the failure to adduce evidence during trial is not satisfactorily explained.

582.           Subclause 64(2) provides for further evidence to be taken by a single Judge, and for the Full Court to have regard to the findings of that Judge.

Clause 65 - Costs

583.           This clause provides discretion for the Military Court to award costs of an appeal from a court martial and Defence Force magistrate in certain circumstances. 

584.           Subclauses (1) and (2) relate to appeals by convicted persons or prescribed acquitted persons.  If the Military Court allows an appeal by a convicted person or prescribed acquitted person, the Court has discretion, if it considers appropriate, to order the Commonwealth to pay to the convicted person or prescribed acquitted person such amount as the Military Court considers to be reasonably sufficient to compensate the convicted person or prescribed acquitted person for expenses properly incurred by him or her in the prosecution of his or her appeal and any proceedings preliminary or incidental to the appeal or in carrying on his or her defence against the charge or charges out of which the appeal arose. 

585.           Conversely, if the Military Court dismisses an appeal, or application for special leave to appeal, by a convicted person or prescribed acquitted person, the Court has discretion, if it considers it appropriate, to order the convicted person or prescribed acquitted person to pay to the Commonwealth the whole or any part of the costs of the appeal or application. 

586.           Subclauses (3) and (4) relate to appeals by the Director of Military Prosecutions.  If the Military Court allows an appeal by the Director of Military Prosecutions, the Court has discretion, if it considers appropriate, to order a convicted person or prescribed acquitted person to pay to the Commonwealth the whole or any part of the costs of the appeal. 

587.           Conversely, if the Military Court dismisses an appeal, or application for special leave to appeal, by the Director of Military Prosecutions, the Court has discretion, if it considers it appropriate, to order the Commonwealth to pay to the convicted person or prescribed acquitted person such amount as the Military Court considers to be reasonably sufficient to compensate the convicted person or prescribed acquitted person for expenses properly incurred by him or her in responding to the appeal and any proceedings preliminary or incidental to the appeal or in carrying on his or her defence against the charge or charges out of which the appeal arose. 

588.           Powers to award costs in the Military Court are similar to powers of the DFDAT under section 37 of the Defence Force Discipline Appeals Act 1955 in the interim military justice system, and are consistent with the powers for other appeals in the Military Court. 

Clause 66 - Person taken to have been acquitted

589.           This clause provides that where the Military Court makes an order setting aside the conviction or prescribed acquittal, and the DMP directs that the charges not be proceeded with, the person is taken to have been acquitted of the service offence to which the order relates.

590.           A note has been included to refer readers to the operation of subsection 103F(3), which provides that there is a 60 day period in which the DMP must make a decision.  Where a decision has not been made, the DMP is regarded as having directed that the charges not proceed.  This provision will ensure that a person whose conviction was set aside by the Military Court on appeal has certainty regarding their conviction after a set period of time.

Division 4—References to the Military Court

Clause 67 - Reference of question of law during trial

591.           This clause provides that a question of law may be referred from the judge advocate of a court martial or a Defence Force magistrate proceeding to the Military Court.  A question of law may be referred on the initiative of the judge advocate or the Defence Force magistrate; or at the request of the accused, the DMP, the CDF or a service chief.  Such references must be heard by the Full Court of the Military Court.

592.           Where a question has been referred to the Military Court, a court martial or Defence Force magistrate must not give a decision to which the question is relevant while the referral is pending, or proceed in a manner or make a decision that is inconsistent with the opinion of the Military Court once the question of law is decided.  That is, once the question is referred, the court martial and Defence Force magistrate are bound to wait for it and bound to follow it.

Clause 68 - Reference of question of law after trial

593.           This clause enables the DMP to apply to the Military Court for leave to refer a question of law to the Full Court, arising from a determination of a court martial or Defence Force magistrate acquitting a person (including because of mental impairment), or a decision made by a reviewing authority to acquit a person (because of mental impairment or otherwise) or under sections 159 or 165 of the Defence Force Discipline Act 1982 (resulting in the person being taken to have been acquitted).  The leave application is to be heard by a single Judge unless that Judge directs it to be heard and determined by a Full Court.

594.           This clause also provides that Court has jurisdiction to hear and determine these matters and that both the DMP and an accused may make submissions in relation to the Military Court’s determination on the question of law.

595.           Any determination on a question of law by the Military Court does not affect the person’s acquittal.

Division 5—Other matters

Clause 69 - Sending documents to the Military Court

596.           This clause provides for the process of sending documentation to the Military Court where a notice of appeal is filed in the Military Court or a question of law is referred under clauses 67 or 68 of Schedule 3B.

597.           The DMP must give the Military Court all documents and other records applicable to the trial proceedings to which the appeal or reference relates.  The CDF must also provide all documents and other records applicable to any review of the trial proceedings to which the appeal or reference relates.  At the conclusion of the appeal, the Military Court must return all documents to either the DMP or the CDF.

598.           This requirement does not apply to the filing of an application for leave to appeal.

Clause 70 - Appeals not to be brought against certain judgements

599.           Subclause 70(1) provides that appeals must not be brought to the Full Court of the Military Court, despite section 105 of the Military Court Act, from:

  • a judgement of a single Judge exercising the jurisdiction of the Military Court in an appeal under this Part; or
  • a judgement of the Military Court under Part 8 of the Military Court Act (which deals with bail) made in relation to an appeal under this Part.

600.           Subclause 70(2) provides that an appeal must not be brought to the High Court from a judgement of the Military Court exercising its jurisdiction in an appeal under this Part if the judgement is either a determination of an application referred under clause 55 (applications to be heard by a single Judge), or a decision to reinstate, or not to reinstate, an appeal under this Part that was taken to have been abandoned or dismissed.  This prevents appeals from decisions set out in clause 55, including decisions to grant leave to appeal.

601.           Subclause 70(3) applies to avoid doubt.  It clarifies that the restriction regarding appeals to the High Court from certain judgements of the Military Court has effect in addition to Part 7 of the Military Court of Australia Bill.  Part 7 of the Military Court of Australia Bill relates to requirements for special leave to appeal to the High Court generally.

Item 166 - Schedule 4 (heading) Oath or affirmation for holders of certain offices

602.           This item inserts a heading for Schedule 4 (which currently does not have a heading):  ‘Schedule 4—Oath or affirmation for holders of certain officers’.  It also updates the note to refer to sections 184, 188GJ and clause 25 of Schedule 3B.  The existing references to sections 188AF, 188AT and 188FF have been removed because clause 25 of Schedule 3B replaces section 188FF, and sections 188AF and 188AT no longer exist.

Item 167 - Schedule 7—Certain disciplinary offences

603.           This item inserts a new Schedule 7 at the end of the Defence Force Discipline Act 1982 .  Schedule 7 lists offences, which are contained in existing Schedule 1A (repealed by Item 163 in Schedule 1 of this Bill).  These offences are characterised as being exclusively disciplinary in nature, and have no civilian criminal equivalents.

604.           In accordance with new sections 190B and 190C of the Defence Force Discipline Act 1982 , a conviction for an offence contained in this schedule will be exempt, by virtue of those sections, from any reporting or disclosure obligations for an offence against a law of the Commonwealth.

Part 2—Amendment of offences

605.           This Part makes amendments to increase fines for offences and express them in terms of penalty units within the meaning of the Crimes Act 1914 .  This will ensure that it is not necessary to amend the maximum fine which a conviction for an offence attracts in order to account for inflation. This is similar to modern civilian criminal jurisdictions.

Defence Force Discipline Act 1982

Item 168 - Paragraphs 40D(1)(d) and (2)(d) Driving without due care or attention

606.           This item amends the penalty provision for the offence of driving without due care or attention.  It inserts a penalty of 3 penalty units (within the meaning of the Crimes Act 1914 ) in place of the currently prescribed dollar amount of $100.  The amendment will align the sentencing option of fines for defence civilians with those in the civilian jurisdiction.  It will not significantly increase the existing penalty.

 

Item 169 - Paragraph 59(3)(f), (5)(e) and (6)(e) Possession of prohibited drugs

607.           This item amends the penalty provision for the offence of dealing in or possession of prohibited drugs.  It inserts a penalty of 3 penalty units (within the meaning of the Crimes Act 1914 ) in place of the currently prescribed dollar amount of $100.  The amendment will align the sentencing option of fines for defence civilians with those in the civilian jurisdiction.   It will not significantly increase the existing penalty.

Item 170 - Section 62 Commanding or ordering a service offence to be committed

608.           This item repeals existing section 62 of the Defence Force Discipline Act 1982 , and inserts a new section 62 which sets out the offence of commanding or ordering a service offence to be committed.  The amendment clarifies the fault elements that are attributable to the ADF member charged under section 62, and the defences applicable to an offence under this section.  It is modelled on section 11.4 of the Criminal Code .

Item 171 - Subparagraph 68(1)(h)(ii) Scale of punishments

609.           This item amends the scale of punishments provision in relation to fines imposed on persons other than ADF members.  This item replaces the currently prescribed monetary amount of $500 with a penalty of 15 penalty units.  The amendment will align the sentencing option of fines for defence civilians with those in the civilian jurisdiction.

Items 172, 173, 174 and 175 - Subsection 72(1); After subsection 72(1); Subsection 72(2); At the end of section 72 Application of certain provisions of Crimes Act 1914

610.           Together, these items address the existing undesirable situation of service tribunals being capable of issuing recognisance release orders without any effective capacity to enforce the orders.  The inability to enforce recognisance release orders is due to the ad hoc nature of the tribunals and the jurisdictional problem of ADF members sentenced to imprisonment being discharged from the service under subsection 71(1) of the Defence Force Discipline Act 1982 .

611.           The intention in removing the capacity to issue recognisance release orders and allowing the provisions for non-parole period to apply for prison sentences less than 3 years is to reflect the sentencing options that existed prior to the application of the provisions of Division 5 of Part 1B of the Crimes Act 1914 and to remove an unenforceable provision from this Act.

612.           This item removes the reference to certain conditional release provisions of the Crimes Act 1914 and attaches the term ‘applied Crimes Act provisions’ to those sections of the Crimes Act 1914 listed in the subsection.  

613.           This item inserts a new subsection 72(1A) into the Defence Force Discipline Act 1982 which prevents a service tribunal from imposing a recognisance release order and instead provides for it to be able to set a non-parole period for sentences of imprisonment for less than 3 years. 

Item 176 - Section 79(2) Suspension of fines

614.           This item replaces the figure of $100 with 3 penalty units to reflect the replacement of fixed monetary fines in the Defence Force Discipline Act 1982 with penalty unit provisions.  This will align the sentencing option of fines for defence civilians with those in the civilian jurisdiction.   It will not significantly increase the existing penalty.

Item 177 - Clause 2 of Schedule 2 (table, column 2) Punishments that may be imposed by a court martial or Defence Force magistrate

615.           This item replaces the figure of $500 with 15 penalty units in column 2 of the table in clause 2 of Schedule 2, which can be imposed on a person who is not a member of the Defence Force by court martial or Defence Force magistrates.  It reflects the fact that the current punishment of fines of a dollar value will be replaced with penalty units in order to have parity with sentences for civilians in civilian courts.

Item 178 - Subclause 1(4) of Schedule 3 (table, item 2, column 2) Punishments that may be imposed by summary authority

616.           This item replaces the reference to ‘exceeding $100 but not exceeding $250’ with ‘not exceeding 7 penalty units’.  This reflects the fact that the current punishment of fines of a dollar value will be replaced with penalty units in order to have parity with sentences for civilians in civilian courts.

617.           This amendment, and those in Items 179, 180 and 181 below, will amend Schedule 3 which is being repealed and substituted with a new Schedule 3 by Item 164 of Schedule 1 of this Bill.  These amendments will commence on Royal Assent which will be before the amendment in Item 164 commences.  They will, therefore, update the penalties which can be imposed between commencement of these provisions and when the jurisdiction of the Military Court commences and will continue to have application for the purposes of the ‘old law’ under the transitional provisions in Schedule 5.

Item 179 - Subclause 1(4) of Schedule 3 (table, item 2, column 3) Punishments that may be imposed by summary authority

618.           This item replaces the figure of $100 with 3 penalty units.  This reflects that the current punishment of fines of a dollar value will be replaced with penalty units in order to have parity with sentences for civilians in civilian courts.

Item 180 - Subclause 2(3) of Schedule 3 (table, item 5, column 2) Punishments that may be imposed by summary authority

619.           This item replaces the reference to ‘exceeding $100 but not exceeding $250’ with ‘not exceeding 7 penalty units’.  This reflects the fact that the current punishment of fines of a dollar value will be replaced with penalty units in order to have parity with sentences for civilians in civilian courts.

Item 181 - Subclause 2(3) of Schedule 3 (table, item 5, column 3) Punishments that may be imposed by summary authority

620.           This item replaces the figure of $100 with 3 penalty units.  This reflects that the current punishment of fines of a dollar value will be replaced with penalty units in order to have parity with sentences for civilians in civilian courts.

Part 3—Other amendment

Defence Force Discipline Act 1982

Item 182 - Clause 45 of Schedule 3B

621.           This item removes the reference to the Evidence and Procedure (New Zealand) Act 1994 in clause 45 of Schedule 3B, and replaces it with the Trans-Tasman Proceedings Act 2010 .  This is a consequence of the repeal of the former Act and its replacement with the latter Act.



SCHEDULE 2—Amendments of other Defence legislation

Defence Act 1903

Items 1, 2, 3, and 5 - Subsection 4(1) (definition of accused person ) (definition of court martial ) (definition of Defence Force magistrate ) (definition of legal officer )

622.           These items provide that the terms ‘accused person’, ‘court martial’, ‘Defence Force magistrate’ and ‘legal officer’ have the same meaning for the purposes of the Defence Act 1903 (Defence Act) as the meaning given in the Defence Force Discipline Act 1982 .

Item 4 - Subsection 4(1) (definition of Director of Defence Counsel Services )

623.           This item provides that the term ‘Director of Defence Counsel Services’ means a person appointed under subsection 110ZA (2) (which is inserted by Item 14 in Schedule 2 of this Bill) as the Director of Defence Counsel Services, or a person acting as the Director of Defence Counsel Services.

Item 6 - Subsection 4(1) (definition of Military Court )

624.           This item provides that for the purposes of the Defence Act 1903 , the term ‘Military Court’ means the Military Court of Australia created by the Military Court of Australia Act 2012 .

Item 7 - Subsection 4(1) (definition of Military Court Act )

625.           This item provides that the term ‘Military Court Act’ means the Military Court of Australia Act 2012 .

Item 8 - Subsection 9A(5) Administration of Defence Force

626.           This item removes the reference to the DFDAT from subsection 9A(5) of the Defence Act 1903 , as a consequence of the abolition of that Tribunal under the new military justice system (see Schedule 4 of this Bill).

Item 9 - Subsection 89(2) Contempt of service tribunals etc.

627.           This clause repeals the references to the ‘court martial’ and ‘Defence Force magistrate’ in subsection 89(2), and retains the definition of ‘judge advocate’ and ‘summary authority’ for the purposes of the Defence Act 1903 .  The definitions of ‘court martial’ and ‘Defence Force magistrate’ have been removed because they are contained in subsection 4(1) of the Defence Act 1903 as a result of the amendments at Items 2 and 3 in Schedule 2 of this Bill.

Item 10, 11 and 12 - Section 90 (heading); Paragraph 90(1)(a); Subsection 90(2) Failure to comply with order to exclude members of the public etc in hearing before court martial or Defence Force magistrate

628.           Item 10 repeals the heading of Section 90—‘ Failure to comply with order under section 140 of the Defence Force Discipline Act 1982 ’.  It substitutes this heading with ‘Failure to comply with order to exclude members of the public etc in hearing before court martial or Defence Force magistrate’.  This is a consequence of moving the relevant provisions in the Defence Force Discipline Act 1982 regarding court martial and Defence Force magistrate trials into the new Schedule 3B.

629.           Items 11 and 12 update cross-references in the Defence Act 1903 to provisions in the Defence Force Discipline Act 1982 regarding courts martial and Defence Force magistrate trials, which have been moved into the new Schedule 3B.

Item 13 - Section 108 Finding made as a result of testing not admissible in certain criminal proceedings

630.           This item simplifies section 108, and ensures that all proceedings for ancillary service offences are captured.

Item 14 - After Part VIIIC

631.           This item inserts a new Part VIIID—Director of Defence Counsel Services into the Defence Act 1903 , which establishes the office of the DDCS and outlines its functions and powers.

632.           New section 110ZA establishes the office of Director of Defence Counsel Services, who is to be appointed by the CDF, and who must be a legal officer.  Appointment by the CDF demonstrates the significance and importance of the position.

633.           New section 110ZB outlines the functions and powers of the Director.   Establishing this office under the law reflects the serious commitment that ADF command places on the individual interests and rights of defence members involved in the military justice process.

634.           Subsection 110ZB(1) details the functions of DDCS.  These include, but are not limited to, providing for advice and representation of an person accused of a service offence, to arrange witnesses on behalf of the accused, and to manage the provision of legal advice, representation and assistance by legal officers in relation to various proceedings in the Military Court. 

635.           Subsection 110ZB(2) provides that the DDCS may give directions or guidelines in writing to legal officers in relation to the provision of representation, legal advice and other assistance referred to in subsection 110ZB(1).

636.           To provide for, and protect, the independence of the DDCS, subsection 110ZB(3) provides that the position will not be subject to military command or Defence Force Discipline Act 1982 1982 in the performance of the functions, or the exercise of the powers of the position.

637.           Subsection 110ZB(4) provides the DDCS (or acting DDCS) with protection against an act, suit or proceeding, in relation to an act done or omitted in good faith in the performance or purported performance of a function, or the exercise or purported exercise of a power, conferred on DDCS by or under the Defence Act 1903 or any other law of the Commonwealth.

638.           Subsections 110ZB(5) and (6) are included to clarify that directions given under paragraph 110ZB(1)(f) and directions given or guidelines provided under subsection 110ZB(2) are not legislative instruments within the meaning of section 5 of the Legislative Instruments Act 2003.   

Item 15 - Subsection 122B(2) (definition of legal officer )

639.           This item repeals the definition of ‘legal officer’ as the definition has been inserted into subsection 4(1) as a result of Item 5 in Schedule 2 of this Bill.

Item 16 - Before section 123F Judges and Federal Magistrates of the Military Court not to enlist in or be appointed to the Australian Defence Force

640.           This item inserts a new section 123E to require that, while a person is a judicial officer of the Military Court, they must not enlist or be appointed as an officer in the ADF.  This is to ensure the Military Court is independent of military command, to ensure fairness and impartiality to ADF members in trials for service offences.

Defence Force Retirement and Death Benefits Act 1973

Item 17 - Paragraph 6(5)(a) Non-effective service

641.           This item amends paragraph 6(5)(a) to ensure that the period in which an

ADF member is held in custody pre-trial or during trial will be deemed to be a

period of non-effective service under the Defence Force Retirement and Death Benefits Act 1973 , whether the custody is ordered by the Military Court under the Military Court Act or a service tribunal under the Defence Force Discipline Act 1982 .



SCHEDULE 3 - Amendment of other Acts

Part 1 — Main amendments

Acts Interpretation Act 1901

Item 1 - Section 2B Federal Magistrate

642.           This item inserts a definition of the term ‘Federal Magistrate’ to refer to the definition in new subsection 16C(4).

Item 2 - Section 16C (heading) Reference to Stipendiary Magistrate and Magistrate

643.           This item repeals the heading of Section 16C—‘References to Stipendiary Magistrate and Magistrate’.  It substitutes this heading with ‘References to Stipendiary Magistrate, Magistrate and Federal Magistrate.  This amendment is a consequence of the inclusion of a definition of Federal Magistrate in subsection 16C(4).

Item 3 - At the end of Section 16C Reference to Stipendiary Magistrate and Magistrate

644.           This item inserts a new subsection 16C(4) in the Acts Interpretation Act 1901 , which will define the term ‘Federal Magistrate’.  The definition will clarify that, unless the contrary intention appears, references to ‘Federal Magistrate’ in Commonwealth legislation means a ‘Federal Magistrate of the Federal Magistrates Court or the Military Court of Australia’.

Administrative Decisions (Judicial Review) Act 1977

Item 4 - At the end of paragraph (o) of Schedule 1 Classes of decisions that are not decisions to which this Act applies

645.           This item adds ‘(other than decisions by the Attorney-General under subsection 158A(8) of that Act or subclause 35(7) of Schedule 3B to that Act)’ at the end of paragraph (o) of Schedule 1.  Paragraph (o) of Schedule 1 excludes all decisions made under the Defence Force Discipline Act 1982 from being decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies.

646.           This amendment has the effect that decisions of the Attorney-General under subsection 158A(4) or subclause 35(7) of the Defence Force Discipline Act 1982  to vary or set aside orders of a court martial, Defence Force magistrate or reviewing authority relating to persons (who are no longer defence members) acquitted following a determination of mental impairment will be decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies.  This is consistent with the application of the Administrative Decisions (Judicial Review) Act 1977 to decisions of the Attorney-General to vary or set aside orders arising from a determination of mental impairment by the Military Court (under the Military Court of Australia Act 2012 ) or other civilian court (under the Crimes Act 1914 ).

647.           The effect of this amendment is to make the decisions of the Attorney-General under Part 10 of the Military Court Act reviewable under the Administrative Decisions (Judicial Review) Act 1977

648.           The amendments do not make the decisions of the reviewing authority, court martial or Defence Force magistrate about mental impairment reviewable under the Administrative Decisions (Judicial Review) Act 1977 .  New section 39C to be inserted in the Judiciary Act 1903 would mean that decisions under the Defence Force Discipline Act 1982 would be subject to judicial review by the Military Court (see Item 36 of Schedule 3 of this Bill).

Item 5 - At the end of Schedule 1 Classes of decisions that are not decisions to which this Act applies

649.           This item includes a new paragraph (zg) at the end of Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 .  Schedule 1 lists Commonwealth Acts or provisions containing decisions to which the Administrative Decisions (Judicial Review) Act 1977 does not apply.  The effect of new paragraph (zg) to be included in Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 provides that decisions under subclause 53(2) and paragraph 14(2)(a) of the Military Court of Australia Bill 2012 will not be reviewable under the Administrative Decisions (Judicial Review) Act 1977 .  Paragraph 14(2)(a) of the Military Court of Australia Bill 2012 relates to the decisions of the Chief Justice or the Attorney-General on whether to consent to a Judge or Federal Magistrate sitting (on a permanent basis) at a location different to where they were assigned upon appointment.  Subclause 53(2) of the Military Court of Australia Bill 2012 relates to the decisions of the Chief Justice in arranging the business of the Military Court. 

650.           These decisions relate to the administrative business of the court, and do not have any substantive impact on a person’s rights.  The exclusion of these decisions under Schedule 1 is consistent with the exclusion of equivalent sections in the Federal Court of Australia Act 1976 , the Family Law Act 1975 and the Federal Magistrates Act 1999 under paragraphs (zd), (ze) and (zf).

Age Discrimination Act 2004

Item 6 - Schedule 1 (table item 22) Laws for which an exemption is provided by subsection 39(1)

651.           This item removes item 22 from the table in Schedule 1 of the Age Discrimination Act 2004 .  Existing item 22 exempts anything done in compliance with the Defence Force Discipline Act 1982 from liability under the Age Discrimination Act 2004 .  This amendment is a consequence of the repeal of the Defence Force Discipline Act 1982 under Schedule 4 of this Bill.

Item 7 - Schedule 1 (after table item 30) Laws for which an exemption is provided by subsection 39(1)

652.           This item inserts a new item 30A to the table in Schedule 1 of the Age Discrimination Act 2004 .  This will ensure the exclusion of actions taken in pursuance of the provisions of the Military Court Act from liability under the Age Discrimination Act 2004 .

653.           This is necessary because the Military Court of Australia Bill 2012 provides that a person must not be appointed to that Court as a Judge or a Federal Magistrate if he or she has attained the age of 70 years (consistently with Chapter III of the Constitution).

Australian Crime Commission Act 2002

Item 8 - Schedule 1 Prescribed provisions

654.           This item amends Schedule 1 to the Australian Crime Commission Act 2002 to insert a reference to section 168 of the Military Court of Australia Act 2012 .  Clause 168 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.

655.           Schedule 1 contains a list of provisions prescribed for the purposes of section 20 of that Act.  Section 20 of the Australian Crime Commission Act 2002 provides that, subject to a prescribed provision, a person shall not refuse or fail to comply with a notice to produce certain information under that section.  This item commences at the same time as section 3 of the Military Court of Australia Act 2012 commences.

Australian Security Intelligence Organisation Act 1979

Item 9 - Section 34A (definition of Federal Magistrate )

656.           This item repeals the existing definition of ‘Federal Magistrate’, which restricts its interpretation to Federal Magistrates of the Federal Magistrates Court.  This, along with the amendment to the Acts Interpretation Act 1901 in Item 3 in Schedule 3 of this Bill, will ensure that references to ‘Federal Magistrate’ in this Act are read to mean Federal Magistrates of either the Federal Magistrates Court or the Military Court.  This will allow Federal Magistrates of the Military Court to be eligible for appointment as an issuing authority under the Australian Security Intelligence Organisation Act 1979 , consistent with their counterparts in the Federal Magistrates Court.

Item 10 - Section 34A (after paragraph (b) of the definition of superior court )

657.           This item inserts a new paragraph (ba) after paragraph (b) of the definition of ‘superior court’ to include the Military Court as a superior court for the purposes of the Australian Security Intelligence Organisation Act 1979 .  The term ‘superior court’ is used only in subsection 34B(1).  Subsection 34B(1) provides that the Minister may, by writing, appoint as a prescribed authority a person who has served as a judge in one or more superior courts for a period of 5 years and no longer holds a commission as a judge of a superior court .  Under the Australian Security Intelligence Organisation Act 1979 , a person under investigation by ASIO may be brought before a prescribed authority for questioning.

658.           This amendment means that former judges of the Military Court may be eligible for appointment as a prescribed authority under the Australian Security Intelligence Organisation Act 1979 , consistently with former judges of other superior courts.

Crimes Act 1914

Item 11 - Subsection 3C(1) (paragraph (a) of the definition of offence )

659.           This item amends an error in the definition of ‘offence’ under subsection 3C(1) of the Crimes Act 1914 , which applies to Part IAA (search, information gathering, arrest and related powers) of that Act.  The existing definition effectively prevents Part 1AA from applying to an offence against the Defence Force Discipline Act 1982 .  However, the concept of offences against the Defence Force Discipline Act 1982 does not cover offences that are service offences for the purposes of the Defence Force Discipline Act 1982 , such as ancillary offences and offences against regulations under the Defence Force Discipline Act 1982 .

660.           The new definition effectively prevents Part 1AA from applying to service offences within the meaning of the Defence Force Discipline Act 1982 .  Since the Defence Force Discipline Act 1982 makes provision for the investigation and arrest of ADF members for service offences, it is appropriate that all service offences under the Defence Force Discipline Act 1982 be excluded from the definition of ‘offence’ for the purposes of Part IAA.

Item 12 - Section 3ZQL (heading) Definition

661.           This item repeals the heading of Section 3ZQL—‘Definitions’, and substitutes this heading with ‘Definition’.  This amendment is a consequence of the repeal of the definition of Federal Magistrate in section 3ZQL (see Item 13 of Schedule 3 of this Bill).

Item 13 - Section 3ZQL (definition of Federal Magistrate )

662.           This item repeals the definition of ‘Federal Magistrate’ in section 3ZQL of the Crimes Act 1914 .  The current definition in section 3ZQL has the effect that references to Federal Magistrate in sections 3ZQO and 3ZQQ of the Crimes Act 1914 means a Federal Magistrate of the Federal Magistrates Court.

663.           The repeal of this definition, along with the insertion of a definition of Federal Magistrate in the Acts Interpretation Act 1901 (see Item 3 of Schedule 3 of this Bill), will have the effect that the references to Federal Magistrate in sections 3ZQO and 3ZQQ of the Crimes Act 1914 will mean a Federal Magistrate of the Federal Magistrates Court or the Military Court of Australia.  This will allow the persona designata powers under sections 3ZQO and 3ZQQ of the Crimes Act 1914 to be conferred on Federal Magistrates of the Military Court as well as Federal Magistrates of the Federal Magistrates Court.

 

 

Item 14 - At the end of paragraph 4AAA(1)(aa) Commonwealth laws conferring non-judicial functions and powers on officers

664.           This item replaces the reference to ‘a judge of the Federal Court of Australia’ with ‘a judge of a federal court’ in paragraph 4AAA(1)(aa) of the Crimes Act 1914 .  This will ensure that section 4AAA of the Crimes Act 1914 applies to a judge of the Federal Court of Australia or a judge of the Military Court if, under a law of the Commonwealth relating to criminal matters, a persona designata power is conferred on him or her.

Item 15 - Subsection 4AAA(1) (note 1) Commonwealth laws conferring non-judicial functions and powers on officers

665.           This item repeals note 1 under subsection 4AAA(1), which states that ‘Magistrate’ is defined in section 16C of the Acts Interpretation Act 1901 .  The item inserts a new note 1 which states that ‘Federal Magistrate’ and ‘Magistrate’ are defined in section 16C of the Acts Interpretation Act 1901 .  This is to assist the reader in interpreting the reference to Federal Magistrate as meaning both Federal Magistrates of the Federal Magistrates Court and the Military Court.

Item 16 - Subsection 4AAA(2) Commonwealth laws conferring non-judicial functions and powers on officers

666.           This item replaces the reference to ‘a judge of the Federal Court of Australia’ with ‘a judge of a federal court’ in subsection 4AAA(2) of the Crimes Act 1914 .  This will ensure that subsection 4AAA(2) applies to both a judge of the Federal Court of Australia and a judge of the Military Court.

Item 17 - Subsection 4AAA(3A) Commonwealth laws conferring non-judicial functions and powers on officers

667.           This item replaces the reference to ‘a judge of the Federal Court of Australia’ with ‘a judge of a federal court’ in subsection 4AAA(3A) of the Crimes Act 1914 .  This will ensure that subsection 4AAA(3A) applies to both a judge of the Federal Court of Australia and a judge of the Military Court.

Federal Court of Australia Act 1976

Item 18 - Section 18C Appointment of Registrar

668.           The effect of this amendment is to include subclauses in section 18C of the Federal Court of Australia Act 1976 .  This is consequential to Item 19 which inserts an additional subclause into the section.  The existing section 18C will become subclause (1).  Section 18C provides that the Registrar is appointed by the Governor-General on the nomination of the Chief Justice.

Item 19 - Section 18C Appointment of Registrar

669.           This item inserts a new subclause into section 18C of the Federal Court of Australia Act 1976 .  Proposed new subsection 18C(2) will provide that a person who is a member of the ADF must not be appointed, and cannot hold office, as the Registrar.  Under clause 3 of the Military Court of Australia Bill 2012, the Registrar of the Federal Court will also be the Registrar of the Military Court. 

670.           As the Registrar of the Federal Court may exercise certain adjudicative powers under the Military Court of Australia Bill 2012, it would not be appropriate for a member of the ADF to hold the position of Registrar.  This amendment ensures that the Registrar will not be subject to the military chain of command in exercising his or her functions.  This is consistent with the independence of other office holders under the Military Court of Australia Bill 2012.

Item 20 - Subsection 18J(1) Outside employment of Registrar

671.           This item updates subclause references in section 18J of the Federal Court of Australia Act 1976 consequential to the repeal of subsection 18J(2) in Item 21.

Item 21 - Subsection 18J(2) Outside employment of Registrar

672.           This item repeals subsection 18J(2) of the Federal Court of Australia Act 1976 .  Subsection 18J(2) currently provides that the restriction under subsection (1) on paid employment outside the duties of the office of Registrar does not apply to service in the ADF.  Proposed new subsection 18C(2) to be inserted by Item 19 provides that a person who is a member of the ADF must not be appointed, and cannot hold office, as the Registrar. 

Federal Magistrates Act 1999

Item 22 - Section 5 (after paragraph (c) of the definition of prior judicial service )

673.           This item inserts a new paragraph (ca) in the definition of prior judicial service to ensure that any prior judicial service by a retired disabled Federal Magistrate of the Federal Magistrates Court includes prior judicial service as a Federal Magistrate of the Military Court.

Federal Proceedings (Costs) Act 1981

Item 23 - Subsection 3(1) (after paragraph (b) of the definition of Federal appeal )

674.           This item amends the definition of ‘federal appeal’ in subsection 3(1).  This will ensure that the Federal Proceedings (Costs) Act 1981 applies to appeals from the Military Court to the High Court, in the same way as appeals from other federal courts to the High Court.

Item 24 - Subsection 3(1) (definition of Military Court )

675.           This item inserts a definition of ‘Military Court’ in subsection 3(1) of the Federal Proceedings (Costs) Act 1981 to mean the Military Court of Australia.  This is necessary because amendments to provisions in this Act refer to the Military Court.

 

 

Item 25 - Subsection 10(1) Costs certificates—incomplete proceedings

676.           This amendment will provide for the application of this section where there are incomplete proceedings in the Military Court.  It will enable a costs certificate to be granted to the parties before the Military Court where the proceedings are aborted and puts them on an equal footing with parties before other federal courts.

Items 26 and 27 - Schedule Prescribed maximum amount

677.           This schedule is being updated to include the prescribed maximum amount that can be paid in respect of Military Court proceedings under the Federal Proceedings (Costs) Act 1981 .  The amount of $6,000 is equivalent of the maximum amount currently set for Federal Court proceedings under the Regulations.  The note is included to refer readers to the fact that higher amounts can be prescribed by regulations.  However no regulations have been made in relation to the Military Court.

Geneva Conventions Act 1957

Item 28 - Subsection 5(2) (definition of court )

678.           This item removes the exclusion of ‘a military court’ from the definition of ‘court’ for the purposes of the Geneva Conventions Act 1957 .  This is to ensure that sections 11 to 14 of the Geneva Conventions Act 1957 apply to the Military Court if it tries a service offence committed by a protected prisoner of war.  This is possible as section 7 of the Defence Force Discipline Act 1982 provides that prisoners of war are subject to the Defence Force Discipline Act 1982 in the same way as members of the ADF.

679.           The protections in the Geneva Convention relative to the Treatment of Prisoners of War, adopted at Geneva on 12 August 1949, which are outlined in sections 11 to 14 of the Geneva Conventions Act 1957 are for proceedings of a judicial nature.  As the Military Court will be a court exercising the Commonwealth’s judicial power under Chapter III of the Constitution, it is appropriate for sections 11 to 14 to apply to the Military Court.

Judges (Long Leave Payments) Act 1979

Item 29 - Section 3 (paragraph (a) of the definition of Judge )

680.           This item replaces the reference to ‘the High Court or the Federal Magistrates Court’ in section 3 (paragraph (a) of the definition of ‘Judge’) of the Judges (Long Leave Payments) Act 1979 with ‘a Justice of the High Court or a Federal Magistrate’.  Together with the amendments to the Acts Interpretation Act 1901 at Item 3 of Schedule 3 of this Bill, this ensures that Federal Magistrates of the Military Court are excluded from the definition of Judge, and therefore excluded from receiving long leave payments under the Judges (Long Leave Payments) Act 1979 , consistently with Federal Magistrates of the Federal Magistrates Court.

Item 30 - Section 3 (paragraph (b) of the definition of Judge )

681.           This item replaces the reference to ‘of a court referred to in paragraph (a)’ with ‘to whom paragraph (a) applies’ in section 3 (paragraph (b) of the definition of ‘Judge’) of the Judges (Long Leave Payments) Act 1979 .  T his is a technical amendment to reflect the changes in Item 29 of Schedule 3 of this Bill. 

Judges’ Pensions Act 1968

Item 31 - Subsection 4(1) (paragraph (a) of the definition of Judge )

682.           This item replaces the reference to ‘the Federal Magistrates Court’ with ‘a Federal Magistrate’ in subsection 4(1) (paragraph (a) of the definition of Judge ) of the Judges’ Pensions Act 1968 .  Along with the insertion of a definition of Federal Magistrate in the Acts Interpretation Act 1901 (see Item 3 of Schedule 3 of this Bill), this will ensure that Federal Magistrates of the Military Court are excluded from receiving judges’ pensions under the Judges’ Pensions Act 1968 , consistently with Federal Magistrates of the Federal Magistrates Court.

Item 32 - Subsection 4(1) (paragraph (b) of the definition of Judge )

683.           This item replaces the reference to ‘of a court referred to in paragraph (a)’ with ‘to whom paragraph (a) applies’ in subsection 4(1) (paragraph (a) of the definition of Judge ) of the Judges’ Pensions Act 1968 .  This is a technical amendment to reflect the changes in item 31 of Schedule 3 of this Bill. 

Judiciary Act 1903

Item 33 - Paragraph 23(2)(a) Decision in case of difference of opinion

684.           This item amends paragraph 23(2)(a) of the Judiciary Act 1903 to ensure that section 23 applies to the Military Court, consistently with other federal courts.  Subsection 23(2) of the Judiciary Act 1903 operates to determine how questions affecting the constitutional powers of the Commonwealth are to be decided by a Full Court that is equally divided in opinion.  This amendment will provide for the same rules to apply to the Full Court of the Military Court as apply to the Full Courts of other federal courts.

Item 34 - Section 39B (heading) Original jurisdiction of the Federal Court of Australia

685.           This item repeals the heading of Section 39B—‘Original jurisdiction of the Federal Court of Australia’.  It substitutes this heading with ‘Original jurisdiction of the Federal Court of Australia—general’.  This amendment is a consequence of the new section 39C, which will have the heading ‘Original jurisdiction of the Federal Court of Australia—certain writs relating to prosecutions for service offences’ (see Item 36 of Schedule 3 of this Bill).

Item 35 - Subsection 39B(1) Original jurisdiction of Federal Court of Australia

686.           This item ensures that subsection 39B(1) has effect, subject to subsections 39C(1) and (2).  Subsection 39B(1) generally provides that the original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.  This item ensures that this provision operates subject to new subsection 39C(1) and (2) (inserted by Item 36 of Schedule 3 of this Bill), which specifically provides that the Federal Court does not have jurisdiction with respect to such matters if it relates to a decision to prosecute a person in the Military Court for a service offence.  This is because the Military Court will have jurisdiction to deal with such matters.    

Item 36 - At the end of Part VI Original jurisdiction of Federal Court of Australia - certain writs relating to prosecutions for service offences

687.           This item inserts a new section 39C at the end of Part VI of the Judiciary

Act 1903
.  New section 39C provides that the Federal Court does not have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth, if it relates to a decision an officer or officers of the Commonwealth to prosecute a person in the Military Court for a service offence.  New section 39C invests the Military Court with jurisdiction in respect to these matters.  

688.           Subsection 39C(2) provides that this conferral of jurisdiction on the Military Court instead of the Federal Court extends to a writ of mandamus or prohibition, or an injunction sought against an officer or officers of the Commonwealth in relation to a ‘related criminal justice process decision’.  ‘A related criminal justice process decision’ refers to the decisions of the DMP and CDPP about whether to prosecute a service offence which has an equivalent offence under criminal law in the criminal justice system or the military justice system.  Subsection 39C(2) only applies if the writ of mandamus or prohibition, or an injunction is sought while the service offence is being prosecuted, or an appeal in relation to it is being heard, in the Military Court.

689.           Subsection 39C(3) provides that if the writ of mandamus or prohibition, or an injunction is sought before the commencement of a prosecution in the Military Court for a service offence, then it can be sought in the Federal Court, rather than the Military Court.

690.           Subsection 39C(4) provides that if subsection 39C(3) applies, then the prosecutor may apply to the Military Court for a permanent stay of the proceedings, and the Military Court may grant such stay if it determines that the matter is more appropriately dealt with in the criminal justice process, and a stay of proceedings will not substantially prejudice the person.

691.           Subsection 39C(5) clarifies that this section has effect despite other laws.  Subsection 39C(6) defines ‘related criminal justice process decision’ consistently with the definition under subsection 39B(3).

 

 

 

Legislative Instruments Act 2003

Item 37 - Section 9 Rules of court are not legislative instruments

692.           This item amends section 9 of the Legislative Instruments Act 2003 to ensure that the rules of the Military Court of Australia are not legislative instruments for the purposes of that Act.  This is consistent with the rules of other federal courts.   

Military Court of Australia Act 2012

Item 38 - Subsection 170(5) (note)

693.           This item repeals the note under subsection 170(5), which directs the reader to refer to the Evidence and Procedure (New Zealand) Act 1994 , and substitutes a new note which directs the reader to refer to Part 6 of the Trans-Tasman Proceedings

Act 2010
.  This is a consequence of the repeal of the former Act and replacement with the latter Act.

Item 39 - Subsection 171(3) (note)

694.           This item repeals the note under subsection 171(3), which directs the reader to see the Evidence and Procedure (New Zealand) Act 1994 , and inserts a new note which directs the reader to see Part 6 of the Trans-Tasman Proceedings Act 2010 .  This is a consequence of the repeal of the former Act and replacement with the latter Act.

Item 40 - Section 175

695.           This item repeals the reference to the Evidence and Procedure (New Zealand) Act 1994 in section 175, and inserts a new reference to the Trans-Tasman Proceedings Act 2010 .  This is a consequence of the repeal of the former Act and replacement with the latter Act.

National Security Information (Criminal and Civil Proceedings) Act 2004

Item 41 - Section 7 (definition of prosecutor )

696.           This item amends the definition of ‘prosecutor’ in section 7 of the National Security Information (Criminal and Civil Proceedings) Act 2004 to include the DMP.  The National Security Information (Criminal and Civil Proceedings) Act 2004 provides a framework for preventing the disclosure of information in federal criminal and civil proceedings where the disclosure would be likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.  Section 6 of the National Security Information (Criminal and Civil Proceedings) Act 2004 provides that the Act applies to a federal criminal proceeding if the prosecutor gives notice in writing to the defendant, the defendant’s legal representative and the court that the Act applies to the proceeding.    

697.           The existing definition of ‘prosecutor’ in section 7 of the National Security Information (Criminal and Civil Proceedings) Act 2004 means the Director of Public Prosecutions or a person representing the Director in relation to the proceeding.  The effect of this amendment is to ensure that the National Security Information (Criminal and Civil Proceedings) Act 2004 is able to be applied to Military Court proceedings in which the prosecutor is the Director of Military Prosecutions.

Item 42 - Paragraph 13(2)(f) Meaning of criminal proceeding

698.           This item inserts ‘or 39C(1)’ after the reference to ‘39B(1B)’ in paragraph13(2)(f).  This is a consequence of the insertion of new section 39C in Item 36 of Schedule 3 of this Bill.

Item 43 - Subparagraph 13(2)(f)(ii) Meaning of criminal proceeding

699.           This item removes the reference to ‘of that Act’, and inserts ‘or 39C(6) of that Act, as the case requires’.  This is a consequence of the insertion of new section 39C in Item 36 of Schedule 3 of this Bill.

Item 44 - Section 14 Meaning of federal criminal proceeding

700.           This item provides that the text of existing section 14 will become

subsection (1).  This is a consequence of Item 45 of Schedule 3 of this Bill, which inserts a new subsection 14(2) at the end of section 14.

Item 45 - At the end of section 14 Meaning of federal criminal proceeding

701.           This item inserts a new subsection 14(2) which, to avoid doubt, clarifies that proceedings before a court martial or a Defence Force magistrate are not federal criminal proceedings for the purposes of the National Security Information (Criminal and Civil Proceedings) Act 2004 .  However appeals or other proceedings before the Military Court from a court martial or Defence Force magistrate are federal criminal proceedings for the purposes of this Act. 

 

702.           The effect of this amendment is to ensure the National Security Information (Criminal and Civil Proceedings) Act 2004 does not apply to court martial and Defence Force magistrate proceedings.  This is because court martial and Defence Force magistrate proceedings are not proceedings before a court.  They are akin to tribunal proceedings, to which the National Security Information (Criminal and Civil Proceedings) Act 2004 is not intended to apply.     

 

Trans-Tasman Proceedings Act 2010

Item 46 - Subsection 109(3)

703.           This item inserts a reference to the Military Court in subsection 109(3) of the Trans-Tasman Proceedings Act 2010 .  The effect of this amendment is to ensure that if, in a proceeding in the Military Court, a matter arises in relation to which rules or regulations have not been made prescribing matters necessary for carrying out or giving effect to the Trans-Tasman Proceedings Act 2010 , then the Federal Court rules apply with such modifications as are necessary.  This is consistent with the practice in proceedings before the Federal Court, the Family Court and the Federal Magistrates Court.

Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010

Item 47 and 48 - Part 3 of Schedule 2 (heading relating to the Defence Force Discipline Act 1982 ); Items 10, 11 and 12 of Schedule 2

704.           These items will repeal the items in the Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010 , which amend subsections 148A(5) and 148B(3) and section 148F of the Defence Force Discipline Act 1982

705.           Items 10, 11 and 12 are repealed because this Bill, which inserts a new Schedule 3B of the Defence Force Discipline Act 1982 , is expected to commence before the commencement of the Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010 .  Items 10, 11 and 12 replace references to the Evidence and Procedure (New Zealand) Act 1994 in existing subsections 148A(5) and 148B(3) and section 148F of the Defence Force Discipline Act 1982 with references to the Trans-Tasman Proceedings Act 2010 .

706.           Schedule 3B contains new provisions modelled on existing subsections 148A(5) and 148B(3) and section 148F which remove the references to the Evidence and Procedure (New Zealand) Act 1994 .  These references have not been replaced with the Trans-Tasman Proceedings Act 2010 because court martial and Defence Force magistrates will have restricted operation to matters tried outside of Australia.  The Trans-Tasman Proceedings Act 2010 is intended to facilitate the obtaining of evidence in litigation involving Trans-Tasman elements. 

Part 2 Contingent amendments

Division 1—Amendments relating to judicial misbehaviour and incapacity

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

Item 49 - Section 4 Guide to this Act

707.           This item amends the text of the guide to the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 to clarify that a judicial officer of the Military Court will be covered by that Bill. 

708.           The Judicial Misbehaviour and Incapacity (Parliamentary Commissions)

Bill
2012 provides a standard mechanism to assist the Parliament in its consideration of removal of a judge or federal magistrate from office under the Constitution.  Paragraph 72(ii) of the Constitution provides that Justices of the High Court and other courts created by the Parliament shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.  

709.           As judicial officers of the Military Court will be subject to paragraph 72(ii) of the Constitution by virtue of their status as Chapter III justices, it is appropriate that the framework under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 applies consistently to them as a federal judicial officer

Item 50 - Section 7 (paragraph (b) of the definition of Commonwealth judicial officer )

710.           This item amends the definition of ‘Commonwealth judicial officer’ in the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 to confirm judicial officers of the Military Court will be covered by the Bill consistently with judicial officers of other federal courts. 

711.           This item removes references to a Federal Magistrate of the Federal Magistrates Court and substitutes references to ‘Federal Magistrate’.  This is consequential to Item 3 of Schedule 3 to this Bill, which inserts a new subsection 16C(4) in the Acts Interpretation Act 1901 to define the term ‘Federal Magistrate’.  The new definition will clarify that unless the contrary intention appears, references to ‘Federal Magistrate’ in Commonwealth legislation means a ‘Federal Magistrate of the Federal Magistrates Court or the Military Court of Australia’. 

712.             The Judicial Misbehaviour and Incapacity (Parliamentary Commissions)

Bill 2012 enables a Commission to be established where each House of the Parliament passes in the same session, a resolution that a Commission be established to investigate a specified allegation of misbehaviour or incapacity of a specified Commonwealth judicial officer .

713.           ‘Commonwealth judicial officer’ is currently defined in the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 to mean a Justice of the High Court, a judge or justice of a court created by the Parliament (other than the Federal Magistrates Court), and a Federal Magistrate of the Federal Magistrates Court. 

714.           Judicial officers of the Military Court will be subject to paragraph 72(ii) of the Constitution by virtue of their status as Chapter III justices.  This amendment will ensure that that the framework under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 applies consistently to all federal judicial officers .

Item 51 - Section 7 (definition of Federal Magistrate )

715.           This item removes the definition of ‘Federal Magistrate’ in clause 7 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012.  This is consequential to Item 3 of Schedule 3 to this Bill, which inserts a new subsection 16C(4) in the Acts Interpretation Act 1901 to define the term ‘Federal Magistrate’.

716.           The new definition in the Acts Interpretation Act 1901 will clarify that, unless the contrary intention appears, references to ‘Federal Magistrate’ in Commonwealth legislation means a ‘Federal Magistrate of the Federal Magistrates Court or the Military Court of Australia’. 

Item 52 - After paragraph 19(6)(a)

717.           This item inserts a new paragraph 19(6)(ab) into the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012.  The effect of this amendment is to include as an example of an ‘official investigation’ an investigation into a complaint about a Judge or Federal Magistrate of the Military Court within the meaning of the Military Court of Australia Act 2012

718.           Subclause 19(2) of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 requires a Parliamentary Commission to consider the outcome of any previous official inquiry or official investigation into an allegation of misbehaviour or incapacity to the extent that the Commission thinks it necessary or desirable to do so.  Subclause 19(3) of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 provides that a Commission will not be precluded by any other law or privilege from accessing evidence given at, or findings made as a result of, such an inquiry or investigation.

719.           Official investigation will include investigations conducted under the judicial complaints handling process within the Federal Court of Australia, Family Court of Australia or Federal Magistrates Court.  These processes are supported by the Court Legislation Amendment (Judicial Complaints) Bill 2012.

720.           Items 59 and 60 of Schedule 3 to this Bill provide a statutory basis for handling complaints about judicial processes within the Military Court.  These processes are modelled on amendments relating to other federal courts in the Court Legislation Amendment (Judicial Complaints) Bill 2012.

721.           The amendments in Items 53 to 63 of Schedule 3 to this Bill are designed to ensure consistency with the position of investigations and handling of complaints about judicial processes in the Federal Court of Australia, Family Court of Australia or Federal Magistrates Court .  The effect of these amendments will be to ensure that the outcomes of any investigation occurring within the Military Court’s judicial complaints handling processes would be able to be considered by a Parliamentary Commission in the course of an investigation. 

722.           These amendments will commence as specified in clause 2 of this Bill.

Division 2—Amendments relating to judicial complaints

Freedom of Information Act 1982

Item 53 - After subsection 5(1A)

723.           This item inserts an additional subclause to provide a broad exclusion from the operation of the Freedom of Information Act 1982 for documents of a court that relate to complaints handling processes within the Military Court of Australia. 

724.           New subclause 53(1AA) provides that the Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to complaint handler (or a body consisting of complaint handlers) exercising powers or performing functions under paragraph 52(2)(c) and subclause 52(2A) of the Military Court of Australia Bill 2012 or assisting in exercising those powers or performing those functions.  Any documents of a court will be covered by the exclusion, including where a complaint has been transferred between courts due to the complaint being misdirected.

725.           New subclause 53(1AA) also provides that the term ‘complaint handler’ has the meaning given by the Military Court of Australia Bill 2012.  This definition is inserted by Item 55 of Schedule 3 to this Bill.

726.           This amendment is designed to ensure consistency with the exclusion of documents that relate to complaints handling processes with the Federal Court of Australia, Family Court of Australia and Federal Magistrates Court (see Item 35 of Schedule 1 to the Courts Legislation Amendment (Judicial Complaints) Bill 2012).  

727.           The exclusion of documents that relate to complaints handling processes within the Military Court from the operation of the Freedom of Information Act 1982 will protect potentially sensitive documents that arise in the course of a head of jurisdiction (or complaint handler) dealing with a complaint about a judicial officer.

Military Court of Australia Act 2012

Item 54 - Section 3 definition of complaint

728.           This item inserts into section 3 of the Military Court of Australia Act 2012 a new definition of ‘complaint’.  Clause 3 of the Military Court of Australia Bill provides for definitions used in the Bill.  A ‘complaint’ for the purposes of the Military Court of Australia Act 2012 will mean a complaint mentioned in paragraph 53(2)(c) (see Item 59 of Schedule 3 to this Bill).

Item 55 - Section 3 definition of complaint handler

729.           This item inserts into section 3 of the Military Court of Australia Act 2012 a new definition of ‘complaint handler’.  Clause 3 of the Military Court of Australia Bill provides for definitions used in the Bill.   The amendment will mean that a ‘complaint handler’ for the purposes of the Military Court of Australia Act 2012 is the Chief Justice, a person authorised by the Chief Justice under subclause 53(2B), or a person who is a member of a body authorised by the Chief Justice under subclause 53(2B) (see Item 60 of Schedule 3 to this Bill).

Item 56 - Section 3 definition of handle a complaint

730.           This item inserts into section 3 of the Military Court of Australia Act 2012 a definition of ‘handle’ a complaint.  Clause 3 of the Military Court of Australia Bill 2012 provides for definitions used in the Bill.  The term ‘handle’ in relation to a complaint is used in a number of locations in the amendments contained in this Bill to both the Military Court of Australia Bill 2012 and the Freedom of Information Act 1982 .  For example, proposed new subclause 53(2A) of the Military Court of Australia Bill 2012 provides the Chief Justice with power to ‘handle a complaint’ about another Judge or Federal Magistrate in certain circumstances (see Item 60 of Schedule 3 to this Bill).

731.           Clause 3 of the Military Court of Australia Bill 2102 defines ‘judge’ to mean a Judge of the Military Court (including the Chief Justice) and ‘Federal Magistrate’ to mean a Federal Magistrate of the Military Court. 

732.           Under the proposed new definition, ‘handle’ a complaint will mean to do one or more of the following:

  • considering the complaint
  • investigating the complaint
  • reporting on an investigation of the complaint
  • dealing with a report of an investigation of the complaint
  • disposing of the complaint
  • referring the complaint on to another person or body.

733.           This broad definition gives a person who may be handling a complaint a high degree of flexibility in taking action appropriate to an individual complaint.  For example, it would enable the Chief Justice to refer a complaint to a Conduct Committee and enable the Conduct Committee to investigate the complaint and provide a report to the Chief Justice for further consideration.

734.           Disposing of a complaint may include dismissing the complaint.  Proposed new subclause 53(2A) enables the Chief Justice, or a complaint handler, to deal with a complaint by dismissing the complaint (Item 60 of Schedule 3 to this Bill).  The ability of a person to dismiss a complaint summarily does not affect the ability of a person handling a complaint to dispose of a complaint by dismissing it where the person considers this to be appropriate in the circumstances, including where it is not substantiated on further investigation.

Item 57 - Section 3 definition of relevant belief

735.           This item inserts into section 3 of the Military Court of Australia Act 2012 a definition of ‘relevant belief’.  Clause 3 of the Military Court of Australia Bill 2012 provides for definitions used in the Bill.  This term is used in new subclause 53(2A) (see Item 60 of Schedule 3 to this Bill).  The definition applies where a person has a relevant belief in relation to a complaint about a Judge.  A person has such a belief if:

  • the person believes that circumstances giving rise to a complaint may, if substantiated, justify consideration of removal of a judge in accordance with paragraph 72(ii) of the Constitution, or
  • the person believes that circumstances giving rise to a complaint may, if substantiated, adversely affect performance of judicial or official duties by the other judge, or have capacity to adversely affect the reputation of the Court of which the judge is a member.

736.           Having a relevant belief enables a Chief Justice or complaint handler to take certain actions, such as handling a complaint (see new paragraphs 53(2A))(a)(ii) and (b)(ii) inserted by Item 60 of Schedule 3 to this Bill).

Item 58 - After Section 48

737.           This item inserts a new section 48A in the Military Court of Australia

Act 2012
to outline broad protections afforded to participants in the process of dealing with complaints about judges or Federal Magistrates of the Military Court.  Division 6 of Part 3 of the Military Court of Australia Bill 2012 deals with miscellaneous administrative matters in the management of the Military Court.

738.           This clause is designed to promote effectiveness of the judicial complaints process by enabling appropriate people to participate in the process to the extent possible without fear of prosecution or liability on behalf of those assisting the complaint handler.

739.           Subclause 48A(1) affords broad protection and immunity to a complaint handler, in exercising powers or performing functions under new paragraph 53(2)(c) and subclause 53(2), or assisting in exercising those powers or performing those functions.  The level of protection and immunity under subclause 48A(1) is the same as for a Justice of the High Court.   A definition of ‘complaint handler’ is inserted by Item 56 of Schedule 3 to this Bill.

740.           Subclause 48A(2) affords broad protection and immunity to the Chief Justice in authorising a person or body under subclause 53(2B).   The level of protection and immunity under subclause 48A(2) is the same as for a Justice of the High Court .  These protections are in addition to existing protections and immunities of the Chief Justice under the Military Court of Australia Bill 2012.

741.           Subclause 48A(3) affords broad protection and immunity for a witness requested to attend, or appearing before a complaint handler handling a complaint.  A witness has the same protection, and is subject to the same liabilities, as a witness in a case before the High Court.  As processes may vary in formality depending on the circumstances, a witness will include a person who provides information to a complaint handler in the course of the handling of a complaint.

742.           Subclause 48A(4) affords broad protection and immunity for a legal practitioner assisting the complaint handler, or representing a person appearing before a complaint handler.  The level of protection and immunity is the same as a barrister appearing for a party in proceedings in the High Court.

743.           The protections and immunities in this clause are in addition to, and do not limit, other protections and immunities which may apply in the circumstances.

Item 59 - At the end of subsection 53(2)

744.           This item inserts two additional paragraphs relating to the power of the Chief Justice of the Military Court to deal with a complaint about performance by another judge or Federal Magistrate of his or her judicial or official duties.  Subclause 53(2) of the Military Court of Australia Bill 2012 includes specific powers of the Chief Justice in discharging his or her broad responsibility for ensuring the effective, orderly and expeditious discharge of the business of the Court under subclause 53(1).  

745.           Proposed new paragraph 53(2)(c) extends the Chief Justice’s specific powers to include a power to deal with a complaint about the performance by another judge or Federal Magistrate of his or her judicial or official duties.  The paragraph requires the Chief Justice to deal with such a complaint in accordance with the process set out in new subclause 53(2A) (inserted by Item 60 of Schedule 3 to this Bill).  

746.           A complaint about performance by another judge or Federal Magistrate of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Justice (or other complaint handler) to consider whether the complaint relates to a matter capable of being raised on appeal.

747.           The performance of official duties would extend the circumstances in which a complaint may be dealt with.  An example would include where a judge or Federal Magistrate is representing the Court in an official capacity or where the judge or Federal Magistrate is undertaking certain official functions in their personal capacity (whether in Australia or overseas). 

748.           Proposed new paragraph 53(2)(d) gives the Chief Justice power to take any measures that he or she believes are reasonably necessary to maintain public confidence in the Court.  This includes the ability to temporarily restrict another judge or Federal Magistrate to non-sitting duties.  This power operates whether or not there has been a complaint about the judicial officer. 

749.           This paragraph enables a Chief Justice to take timely action that he or she believes is reasonably necessary to maintain public confidence in the Court.  The Chief Justice would need to establish a clear basis for his or her belief that measures are reasonably necessary to maintain public confidence in the Court.  Measures are characterised in terms of facilitating the smooth operation of the Court, rather than disciplinary action directed at a judge or Federal Magistrate.  The type of measure that might be taken would be consistent with the Chief Justice’s responsibilities for ensuring the effective discharge of the business of the court.

750.           Proposed new paragraphs 53(2)(c) and (d) do not limit action that the Chief Justice may take in discharging his or her general obligation to ensure the effective, orderly and expeditious discharge of the business of the Court.  The paragraphs support the existing powers of the Chief Justice by providing express mechanism by which complaints arising in a wide variety of circumstances may be dealt with.

751.           Clause 19 of the Military Court of Australia Bill 2012 will enable the next most senior Military Court Judge who is available and willing to do so to exercise these powers where the Chief Justice is absent from duty or there is a vacancy in the office of Chief Justice.

752.           Clause 3 of the Military Court of Australia Bill 2012 defines ‘Judge’ to mean a Judge of the Military Court (including the Chief Justice), and ‘Federal Magistrate’ to mean a Federal Magistrate of the Military Court. 

Item 60 - After subsection 53(2)

753.           This item inserts new subclauses 53(2A) and (2B) into the Military Court of Australia Bill 2012 to outline the process to be followed by the Chief Justice of the Military Court in dealing with a complaint about the performance by another judge or Federal Magistrate of the Military Court of his or her performance of their judicial or official duties.  New paragraph 53(2)(c) requires the Chief Justice to deal with such a complaint pursuant to the process set out in the new subclauses 53(2A).  

754.           Where a complaint is made about another judge or Federal Magistrate, new subclause 53(2A) enables the Chief Justice to deal with the complaint as outlined in the subclause.  The Chief Justice may do either or both of the options under new paragraphs 53(2A)(a) and (b).

755.           Under new paragraph 53(2A)(a), the Chief Justice may decide whether or not to handle the complaint.  The Chief Justice may then take one of the following actions:

  • dismiss the complaint (paragraph 53(2A)(a)(i)) 
  • handle the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other judge (53(2A)(a)(ii)).  A definition of ‘relevant belief’ is inserted into the Military Court of Australia Bill 2012 by Item 57 of Schedule 3 to this Bill.  A definition of ‘handle’ a complaint is inserted by Item 56 of Schedule 3 to this Bill.
  • arrange for any other complaint handlers to handle, or assist to handle, the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other judge (paragraph 53(2A)(a)(iii)). 

756.           Under new paragraph 53(2A)(b), the Chief Justice may arrange for any other complaint handlers to decide whether or not to handle the complaint, and then take one of the following actions:

  • dismiss the complaint (paragraph 53(2A)(b)(i))
  • handle the complaint if the complaint handler has a relevant belief in relation to the complaint about the other judge (paragraph 53(2A)(b)(ii)).

757.           The powers of another complaint handler under new paragraph 53(2A)(b) are similar to those of the Chief Justice under new paragraph 53(2A)(a) . This enables the Chief Justice to arrange with a complaint handler to deal with complaint without needing to conduct preliminary investigations into a complaint.  Authorisations may be made on a standing basis (see new subclause 53(2B) inserted by this item).

758.           The note to subclause 53(2A) clarifies that a complaint handler (other than the Chief Justice) may handle a complaint by referring it to the Chief Justice.  The Chief Justice may then do either or both of the things referred to in paragraphs (a) or (b) in respect of the complaint.

759.           This subclause gives the Chief Justice a high degree of flexibility to deal with complaints as they consider appropriate, including to manage complaints on a case by case basis.  

760.           A complaint about performance by another Judge or Federal Magistrate of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Justice or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

761.           These powers do not limit the ability of a Chief Justice to refer a matter to the Parliament for consideration of removal of a judge or Federal Magistrate under paragraph 72(ii) of the Constitution if they consider this justified at any time.

762.           The actions the Chief Justice or complaint handler may take to ‘handle’ a complaint include investigating a complaint, referring the complaint to another person, or disposing of a complaint (see definition of ‘handle’ a complaint inserted by Item 56 of Schedule 3 to this Bill).  The ability of the Chief Justice or a complaint handler to dismiss a complaint summarily under proposed paragraphs 53(2A)(a)(i) and (b)(i) does not affect the ability of a person handling a complaint to dispose of a complaint by dismissing it where the person considers this to be appropriate in the circumstances, including where the complaint has not been substantiated following investigation of the complaint.

763.           A ‘complaint handler’ includes a person or member of a body authorised by the Chief Justice to handle a complaint under subclause 53(2B) (see below and Item 56 of Schedule 3 to this Bill).

764.           Subclause 53(2B) gives power to the Chief Justice to authorise a person or body to assist the Chief Justice to handle complaints, decide whether or not to handle complaints, dismiss complaints or handle complaints.  Authorisations may be made either generally or in relation to a specified complaint.  An authorisation must be in writing.

765.           Subclause 53(2B) gives discretion to the Chief Justice as to the person or body which may be authorised to consider and handle a complaint.  This is necessary to ensure a high degree of flexibility for the Chief Justice in complaints handling processes, which may involve a wide variety of circumstances.   An authorisation in writing provides certainty for the person or body involved in dealing with complaints.

766.           It is expected that a person authorised to handle a complaint would not be a current judge or Federal Magistrate of the same court as the judge or Federal Magistrate who is the subject of the complaint, and that the person would be of appropriate seniority to handle a complaint.  For example, where a person authorised to consider or handle a complaint is a sitting or retired judge, it is expected that they would be of equivalent or higher seniority to the judge who is the subject of an investigation.

Item 61 - At the end of subsection 53(3)

767.           This item inserts a note at the end of subclause 53(3) to refer to proposed new clause 48A inserted into the Military Court of Australia Bill 2012 by this Bill.  Subclause 53(3) affords certain protection and immunity to the Chief Justice of the Military Court in the exercise of the functions or powers mentioned in paragraph 53(2)(a) of the Military Court of Australia Bill 2012.

768.           New clause 48A is inserted by item 58 of the Bill and affords certain protections to persons involved in dealing with complaints about judges.  The protections under new clause 48A would be in addition to existing protections and immunities of the Chief Justice.

Item 62 - At the end of subsection 53(4)

769.           This item includes new subclauses 53(2A) or 53(2B) within the scope of subclause 53(4) of the Military Court of Australia Bill 2012.   Subclause 53(2) excludes the jurisdiction of the Federal Court of Australia under section 39B of the Judiciary Act 1903 with respect to a matter relating to the exercise by the Chief Justice of the functions or powers mentioned in subsection 53(2). 

770.           New subclauses 53(2A) and (2B), together, enable the Chief Justice to deal with complaints about the performance by another judge or Federal Magistrate of his or her judicial or official duties, including authorising a person or body to consider, handle or assist with the handling of complaints (see Item 60 of Schedule 3 to this Bill).

771.           This amendment has the effect that the Federal Court of Australia will not have jurisdiction with respect to a matter relating to the exercise by the Chief Justice of the Military Court of his or her functions and powers relating to the handling of complaints about judicial officers under new subclauses 53(2A) and (2B).

Item 63 - Application of items 55 to 63

772.           This item provides for the application of the amendments made by items 54 to 62 of Schedule 3 to this Bill.  Items 54 to 62 provide powers, protections and immunities in relation to complaints about judges or Federal Magistrates within the Military Court. 

773.           The amendments will apply on or after commencement of this item in relation to a complaint, regardless of whether a complaint was made before, on or after commencement, and regardless of whether the circumstances that gave rise to the complaint occurred before, on or after that commencement. 

774.           This item enables the new judicial complaints handling process to be used where a complaint relates to behaviour or conduct that was engaged in prior to commencement of this item. 

Division 3—Amendments relating to suppression and non-publication orders

Australian Crime Commission Act 2002

Item 64 - Schedule 1 Prescribed provisions

775.           This item amends Schedule 1 to the Australian Crime Commission Act 2002 , which contains a list of provisions prescribed for the purposes of section 20 of that Act.  Section 20 of the Australian Crime Commission Act 2002 provides that, subject to a prescribed provision, a person shall not refuse or fail to comply with a notice to produce certain information under that section. 

776.           The item omits the reference to section 168 of the Military Court of Australia Act 2012 , since this provision is being repealed by this Part.  Instead, reference will be included to the new provisions dealing with suppression and non-publication orders, being Part 11A of the Military Court of Australia Act 2012 .  These provisions mirror suppression and non-publication order provisions included in the Access to Justice (Federal Jurisdiction) Amendment Bill 2012 . This amendment will commence as specified in clause 2 of this Bill.

Military Court of Australia Act 2012

Item 65 - Section 3 (definition of information )

777.           This item inserts a definition of ‘information’ for the purposes of Part 11A.   This definition is only applicable to Part 11A.  The definition of ‘information’ is deliberately broad and includes document.  The term ‘document’ is defined in the Acts Interpretation Act 1901 .

Item 66 - Section 3 (definition of news publisher )

778.           This item inserts a definition of ‘news publisher’.   The definition of ‘news publisher’ means persons engaged in the business of publishing news or a public or community broadcasting service engaged in publishing news through public news medium.  This definition will extend to news publishers who publish via the internet, as well as the more traditional print, television and radio news publishers (see definition of ‘publish’).  The definition of ‘persons’ under the Acts Interpretation Act 1901 extends to bodies corporate as well as natural persons.  This definition of ‘news publisher’ is relevant to the provisions giving standing to news publishers to appear upon the hearing of an application for a suppression or non-publication order (paragraph 180H(2)(d)) and allowing court officials to disclose the existence and contents of suppression and non-publication orders to news publishers (paragraph 180L(b)).

Item 67 - Section 3 (definition of non-publication order )

779.           This item inserts a new definition of ‘non-publication order’.   The definition of ‘non-publication order’ assists in highlighting the difference between this kind of order and a suppression order.  While a non-publication order prohibits the publication of information (see definition of ‘publish’), it does not prohibit disclosure of that information in another way.  For example, a non-publication order might allow the news publishers or the general public access to certain information, but not allow them to publish it.

Item 68 -Section 3 (definition of party )

780.           This item repeals the existing definition of ‘party’ in section 3 and substitutes a new definition.  The definition of ‘party’ for the purposes of the Act includes the accused person and the Director of Military Prosecutions.  The definition of party for the purposes of Part 11A is broader and includes the victim, alleged victim or other person named in evidence.  This element of the definition may be relevant where an application for a suppression or non-publication order is made based on the grounds set out in paragraph 180G(1)(d) (where the order is necessary to avoid causing undue distress or embarrassment to a party... in proceedings involving an offence of a sexual nature).  This is because evidence of such matters may be given in Military Court proceedings.

Item 69 -Section 3 (definition of publish )

781.           The definition of ‘publish’ for the purposes of Part 11A means dissemination or provision of access to the public or a section of the public by any means, with some examples being given of means of publication, including the internet. 

Item 70 -Section 3 (definition of suppression order )

782.           The definition of ‘suppression order’ assists in highlighting the difference between this kind of order and a ‘non-publication order’.  A suppression order not only prohibits the publication of information but also prohibits other forms of disclosure, which could be narrower than publication (for example, disclosure to particular persons).

Item 71 - Subsection 79(1) (note)

783.           This item repeals the existing note which refers to the Court’s powers to protect witnesses pursuant to 167 and to restrict or prohibit the publication of information about witnesses and evidence pursuant to section 168. A replacement note will refer to the Court’s powers pursuant to section 167 to protect witnesses and to the Court’s powers to make suppression and non-publication orders under the new Part 11A.

Item 72 - Subsection 158(5)

784.           This item removes the reference to section 168 in subsection 158(5) and replaces it with a reference to Part 11A.

Item 73 - Subsection 167(1)

785.           This item removes the existing note in subsection 167(1) which refers to s 168 and replaces it with a note that refers to the Court’s powers to make suppression and non-publication orders under Part 11A.

Item 74 - Section 168 Prohibition or restriction on publication of evidence etc

786.           This item repeals section 168 of the Military Court of Australia Act 2012 .  This section will no longer be necessary, since a more comprehensive regime for making suppression and non-publication orders will be set out in Part 11A of the Military Court of Australia Act 2012

787.           Section 168 of the Military Court of Australia Act 2012 enables the Military Court to make an order forbidding or suppressing the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

Item 75 - after Part 11 Insertion of Part 11A - Suppression and non-publication orders

Division 1 - Introduction

788.           This item adds a new Part 11A to the Military Court of Australia Act 2012 , to include the power to make suppression and non-publication orders consistent with the powers given to other federal courts by virtue of the Access to Justice (Federal Jurisdiction) Bill 2012.

Clause 180A - Guide to this Part

789.           This clause sets out a guide to Part 11A of the Bill.  The guide will assist readers to understand the purpose and content of the Part, and to more easily navigate through the Part to find relevant provisions. 

Division 2 Effect of this Part on other powers and laws

Clause 180B - Powers of the Court not affected

790.           Clause 180B clarifies that the powers that are provided for by this Part do not limit or affect other existing powers which the Military Court has (apart from this Part) to regulate its proceedings or deal with a contempt of court.  This includes the Court’s implied powers.  The federal courts have such implied powers as are incidental and necessary to exercise the jurisdiction or express powers conferred on them by statute ( DJL v The Central Authority (2000) 201 CLR 226 at 240-241). 

Clause 180C - Other laws not affected

791.           Clause 180C clarifies that nothing in this Part affects the operation of provisions in other Acts that prohibit or restrict, or authorise the Military Court to make an order prohibiting of restricting, the publication or other disclosure of information in connection with proceedings, so that any such restrictions in other Acts will continue to operate.  (Under the Acts Interpretation Act 1901 , ‘Act’ means an Act of the Commonwealth Parliament.)  The provisions in this Part are intended to govern the granting of suppression and non-publication orders under this Act.

Clause 180D - No limit on section 167

792.           Clause 180D makes clear that Part 11A does not limit section 167 which deals with protecting witnesses in proceedings in the Military Court.

Division 3 - Suppression and non-publication orders

Clause 180E - Safeguarding public interest in open justice

793.           Clause 180E provides that the Military Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice when deciding whether to make a suppression order or non-publication order.  This reinforces that the principle of open justice is fundamentally important and should not be overridden lightly, as discussed by the High Court in Hogan v Hinch [2011] HCA 4 and Hogan v Australian Crime Commission [2010] HCA 21.  In particular, his Honour Chief Justice French commented in Hogan v Hinch at paragraph 27 of the judgment that any suppression order powers conferred by statute should be construed so as to minimise their intrusion on the open justice principle. 

Clause 180F - Power to make orders

794.           Clause 180F gives the Military Court power to make suppression and

non-publication orders.  Such orders will bind all members of the public, not just those present at the proceedings.

795.           The clause specifies the information which can be the subject of a suppression or non-publication order.  It allows for information tending to reveal the identity of, or otherwise concerning, a party or witness (or anybody related to or otherwise associated with that person) to be the subject of an order.  Such an order will also be able to be made in relation to evidence or information about evidence, information obtained through discovery, produced under a subpoena or lodged with or filed in the court. 

796.           This provision will provide the Military Court with flexibility to determine exactly what information should be subject to an order and to what extent access to that information should be limited.  For example, it allows the Court to prevent the identification of, or publication of information about, certain parties or witnesses to proceedings but not others.  By way of further example, it may be appropriate to order that certain documents on a Court file or certain discovered documents could only be inspected by specified persons. 

797.           This provision expressly allows the making of an order in respect of information obtained by the process of discovery, produced under a subpoena or lodged with or filed in Court.  This will ensure that information can be the subject of a suitable order even if it has not actually been formally produced as evidence before the Court.  The Military Court already has power to make such orders.

798.           Subclause 180F(2) also provides that the Court may make such orders as it think appropriate to give an effect to an order under subclause 180F(1).  This subclause, for example, gives the Court the clear power to make a ‘take down’ order.  This is an order directing a publisher to remove certain information the subject of the suppression or non-publication order, and could, for example, be directed to website publishers or individuals who had posted certain content on the internet. 

Clause 180G - Grounds for making an order

799.           Clause 180G provides that the Military Court can only make suppression or non-publication orders if one of the grounds set out in that section is satisfied.  These grounds are that:

a)         the order is necessary to prevent prejudice to the proper administration of justice

b)              the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security

c)              the order is necessary to protect the safety of any person

d)             the order is necessary to avoid causing undue distress or embarrassment to a party or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency)

800.           The various grounds that can found a suppression or non-publication order under clause 180G all include the condition that such an order must be ‘necessary’, and should be read in light of the current jurisprudence about what that means in the context of such orders being made.  This reinforces again that such orders cannot be made lightly, bearing in mind the interest in open justice (as recognised by clause 180E).

801.           The High Court has stressed in Hogan v Australian Crime Commission [2010] HCA 21 that the test that an order must be ‘necessary’ has a high threshold so that it is insufficient if the making of a suppression order is convenient, reasonable or sensible - it must be necessary.  The High Court has also indicated that, if an application is subsequently made to vacate the order, it should be vacated unless the continuation of the order remains necessary under the relevant statutory test.

Clause 180H - Procedure for making an order

802.           Clause 180H establishes the procedures for making suppression and

non-publication orders.  Subclause 180H(1) provides that such an order may be made on the Court’s own initiative or if a party or another person applies for an order whom the Court considers has sufficient interest in the making of the order.

803.           Subclause 180H(2) lists the people who are entitled to appear and be heard when an application for such an order is being considered by the Court, being the applicant for the order, a party to the proceedings, the Government or agency of the Commonwealth or a State or Territory, a news publisher (as defined in section 3), or any other person who the Court considers has a sufficient interest in whether the order is made or not. 

804.           Subclause 180H(3) allows such orders to be made at any time during proceedings or after proceedings have concluded.  This acknowledges that circumstances might change during or after proceedings that might warrant a suppression or non-publication order being made at that time.

805.           Subclause 180H(4) allows a suppression or a non-publication order to be made subject to such exceptions and conditions as the Court thinks fit and specifies in the order.  This encourages the Court to carefully consider the breadth of the order, and only make the order as wide as it needs to be in the circumstances, as well as requiring the Court to fully set out these terms in the order.

806.           Subclause 180H(5) requires the Court to specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.  This provision requires the Court to limit the breadth of the order, covering only what is required to achieve its purpose, bearing in mind the principle of open justice.

Clause 180J - Interim orders

807.           Subclause 180J(1) allows for the making of interim suppression or

non-publication orders without requiring the Court to assess the merits of the substantive application, pending the substantive application being determined.  Once an interim order had been made, subclause 180J (2) will then require the Court to determine the substantive application as a matter of urgency.

808.           This clause is intended to allow the Court to make an order for an interim period in urgent cases until the Court has had an opportunity to assess the merits of the substantive application.  It is not intended that interim orders remain in place for long periods of time.

Clause 180K - Duration of orders

809.           The purpose of clause 180K is to ensure that the Court considers, and clearly specifies, how long it is appropriate for orders to stay in force, so that orders are not made for durations longer than necessary to achieve their purpose.  This is intended to reinforce the principle that suppression and non-publication orders should only be as broad-reaching as is necessary to achieve their aim, consistent with the principles of open justice.

810.           Subclause 180K(1) provides that a suppression or non-publication order operates for the period decided by the Court and specified in the order.

811.            Subclause 180K(2) requires the Court to ensure that an order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

812.           Subclause 180K(3) allows for the duration of the order to be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

813.           In this respect, in Hogan v Australian Crime Commission [2010] HCA 21, the High Court noted at paragraph 29 of the judgment that the power to make a suppression order is interlocutory in nature, and that the power to make interlocutory orders includes the power to later vary or vacate that order if there is a change of facts or circumstances that warrants that course of action. 

Clause 180L - Exception for court officials

814.           Clause 180L provides that a suppression order does not prevent a person from disclosing information provided that the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity, either in connection with the conduct of proceedings or the recovery or enforcement of any penalty imposed in proceedings, or in compliance with any procedure adopted by the Court for informing a news publisher of the existence and content of a suppression order or non-publication order made by the Court.

815.           This provision ensures that Court officials can undertake certain specified duties without infringing a suppression or non-publication order.  In particular, Court officials must be able to notify news publishers that suppression or non-publication orders have been made so that news publishers can avoid breaching such orders.

Clause 180M - Contravention of order

816.           Subclause 180M(1) provides that a person commits an offence if that person does an act or omits to do an act which contravenes an order made by the Court under section 180F (in other words, for breaching a non-publication or suppression order).  It provides for a maximum penalty of 12 months imprisonment, 60 penalty units or both.

817.           If a person breaches a non-publication or suppression order, subclauses 180M(2), (3) and (4) provide that that person can either be punished for committing an offence under subsection 180M(1) or for contempt of court, but not for both.  This is to ensure that a person is not subject to being punished twice for the same conduct.



SCHEDULE 4 Repeal

Defence Force Discipline Appeals Act 1955

Item 1 - The whole of the Act

818.           This item repeals the Defence Force Discipline Appeals Act 1955 , which establishes the DFDAT.  The Tribunal has jurisdiction to hear appeals from courts martial and Defence Force magistrates and, previously, the Australian Military Court.  However, as a non-judicial body, it could not have jurisdiction to review the decisions of a Chapter III court.  The jurisdiction of Tribunal will be absorbed by the Military Court, which will have jurisdiction to hear appeals from judgments of the Military Court at first instance.  The Tribunal will be abolished once its jurisdiction to hear appeals from the interim court martial and Defence Force magistrate system is exhausted.  This is achieved through amendments under Item 15 of Schedule 5 of this Bill.

819.           Transitional provisions in Part 4 of Schedule 5 of this Act provide for the Defence Force Discipline Appeals Act 1955 to continue to apply for the purpose of concluding proceedings that are already underway as at the date this item commences.



SCHEDULE 5 —Application, saving and transitional provisions

Part 1—Definitions

Item 1 - Definitions

820.           This item provides definitions relevant to the application, saving and transitional provisions.

821.           The definition of ‘Military Court proceedings start day’ has been given the same meaning as the day on which Part 1 of Schedule 1 to this Bill commences.  Part 1 of Schedule 1 to this Bill commences at the earlier of either a day fixed by Proclamation as the day on which the Military Court is to commence to exercise its jurisdiction, or the last day of the period of ten months beginning on the day on which this Bill receives the Royal Assent.

822.           The definition of ‘new Defence Force Discipline Act 1982’ has been included and means the Defence Force Discipline Act 1982’ that is in force on or after the Military Court proceedings start day.

823.           The definition of ‘old law’ has been included to mean the Defence Force Discipline Act 1982’ , the Defence Force Discipline Appeals Act 1955 , and the Defence Act 1903 as in force immediately before the Military Court proceedings start day.

824.           To ensure that proceedings that are not finalised prior to the Military Court proceedings start day have been accounted for, a definition of ‘proceedings in relation to a charge’ has been provided.  Proceedings in relation to charges covers dealing with charges, the trial of a charges, taking action under Part IV of the old Defence Force Discipline Act 1982’ , a review of proceedings under Part VIIIA of the old Defence Force Discipline Act 1982’ , or an appeal or other proceeding in relation to charges such as an appeal to the DFDAT or an appeal under the Defence Force Discipline Appeals Act 1955 .

825.           A definition of ‘main amendments and repeals’ has been included to mean those amendments made by Part 1 of Schedule 1 of this Bill, Items 1 to 4 and Items 8 to 15 of Schedule 2 and the whole of Schedule 4.  These amendments are those which are necessary to establish the Military Court in the military justice system.

Part 2 - Proceedings in respect of service offences

Item 2 - Application of main amendments and repeals - general

826.           This item provides that the main amendments and repeals will apply where an offence is committed on or after the ‘Military Court proceedings start day’. (Subitem 2(1)).  ‘Main amendments and repeals’ are defined in Item 1 of Schedule 5 of this Bill.

827.           The main amendments and repeals will also apply to service offences that have been committed before the Military Court proceedings start day, where:

  • a person has not been charged with a service offence before the Military Court proceedings start day, or
  • a person has been charged with a service offence, but proceedings to deal with the charge had not been taken before the Military Court proceedings start day.

Item 3 - Continued application of old law to proceedings that had not been finally determined before Military Court proceedings start day

828.           This item provides that, if before the Military Court proceedings start day, a person had been charged with a service offence and proceedings had commenced but had not been finally determined,  the old law continues to apply (subject to limited exceptions).  This means that the proceeding before the court martial or Defence Force magistrate can continue to be finally determined under the old law, without having to transition into the new system.  ‘Proceedings in relation to a charge’ is defined broadly in this Part.

829.           However, section 131B of the old Defence Force Discipline Act 1982 does not apply in relation to a conviction by summary authority.  New sections 190B and 190C, which deal with the effect of convictions for a service offence, will apply.

Item 4 - Charge not referred to a Defence Force magistrate before Military Court proceedings start day

830.           This item outlines the law that will apply to charges referred to the DMP (other than under subsections 111C(3), 129A(3), 131AA(3) or 131A of the ‘old Defence Force Discipline Act 1982 ’),  where the DMP has requested the RMJ to refer the charge to a Defence Force magistrate, and the RMJ has not done so, prior to the Military Court proceedings start day.  In this instance, the DMP’s request to the RMJ to have the charge referred to a Defence Force magistrate will be taken to have been withdrawn, and the new law applies in relation to the charge. 

Item 5 - Order convening a court martial not signed before Military Court proceedings start day

831.           This item outlines which law will apply to charges referred to the DMP (other than under subsections 111C(3), 129A(3), 131AA(3) or 131A of the ‘old Defence Force Discipline Act 1982 ’),  when the DMP has requested the RMJ to convene a court martial (other than under subsection 125(5) of the old law) and the RMJ has not signed an order convening a court martial prior to the Military Court proceedings start day.  In this instance, the DMP’s request for the charge to be referred to a court martial will be taken to have been withdrawn and the new law applies in relation to the charge. 

Item 6 - Proceedings before summary authority—plea to charge not required before Military Court proceedings start day

832.           This item provides that the new law will apply where, before the Military Court proceedings start day, a person has been charged with a service offence and the summary authority has commenced dealing with the charges (but either the trial has not commenced, or the trial has commenced but the person has not been required to enter a plea) and no referral has been made to the DMP following an election to be tried by court martial or Defence Force magistrate.  This has the effect of allowing the accused to elect to have the matter heard by the Military Court instead by of the summary authority.

Item 7 - New trial ordered by reviewing authority—proceedings before court martial or Defence Force magistrate

833.           This item provides that, if before the Military Court proceedings start day, a reviewing authority had ordered a new trial of a person (under sections 160 or 166 of the old Defence Force Discipline Act 1982 ) but the RMJ had not referred the charge to a Defence Force magistrate or convened a court martial to re-try the charge, then the new law applies as if a new trial had been ordered under sections 160 or 166 of the new Defence Force Discipline Act 1982 .   This means that the re-trial may be by way of a hearing in the Military Court.

834.           The new law also applies to new trials ordered under sections 160 or 166 of the old Defence Force Discipline Act 1982 on or after the Military Court proceedings start day (as those provisions continue to apply for the review of court martial and Defence Force magistrate trials, which carry over on or after the Military Court proceedings start day).

Item 8 - New trial ordered by reviewing authority—proceedings before summary authority

835.           This item provides that if before the Military Court proceedings start day, a reviewing authority had ordered a new trial of a person (under section 160 of the old Defence Force Discipline Act 1982 ) but the new trial by a summary authority had not commenced, or had commenced but the person has not entered a plea to the charge, then the new law applies as if a new trial had been ordered under sections 160 of the new Defence Force Discipline Act 1982 .   This means that the person may elect to be re-tried by the Military Court instead of the summary authority.  

836.           The new law also applies to new summary authority trials ordered under sections 160 of the old Defence Force Discipline Act 1982 on, or after, the Military Court proceedings start day (as those provisions continue to apply for the review of court martial and Defence Force magistrate trials, which carry over on or after the Military Court proceedings start day).  However, subitems 8(3) and 8(4) provide that the old law will continue to apply after the Military Court proceedings start day if the person has been charged with the service offence, the trial of the charges by a summary authority had commenced and the person has been required to enter a plea before the Military Court proceedings start day.

Item 9 - New trial ordered by the Defence Force Discipline Appeal Tribunal

837.           This item provides that the new Defence Force Discipline Act 1982 applies in relation to a charge where the Tribunal had ordered the new trial of a person for a service offence and the RMJ had not referred the charge to a Defence Force magistrate for trial or signed an order convening a court martial before the Military Court proceedings start day.  The new Defence Force Discipline Act 1982 will also apply where the Tribunal orders a new trial on or after the Military Court proceedings start day. 

Item 10 - New trial ordered by Federal Court

838.           This item provides that the new Defence Force Discipline Act 1982 applies in relation to a charge where the Federal Court had ordered the new trial of a person for a service offence and the RMJ had not referred the charge to a Defence Force magistrate for trial or signed an order convening a court martial before the Military Court proceedings start day.  The new Defence Force Discipline Act 1982 will also apply where the Federal Court orders a new trial on or after the Military Court proceedings start day. 

Item 11 - Charges laid before Military Court proceedings start day

839.           This item applies where charges have been laid by an authorised member of the Defence Force, or the DMP.

840.           Subitem 11(1) provides that, where a person has been charged and ordered to appear before a summary authority under subsection 87(1) of the old Defence Force Discipline Act 1982 , and a provision of this Schedule applies the main amendments and repeals in relation to the charges, the charges are taken to have been laid and the person ordered to appear under subsection 87(1) of the new Defence Force Discipline Act 1982 .

841.           Subitems 11(2) and 11(3) provide that if the DMP has charged a person under subsection 87(1) and the DMP has made a request under subsection 87(1)(c) of the old Defence Force Discipline Act 1982 , and a provision of this Schedule applies the main amendments and repeals in relation to the charges, the charges are taken to have been laid and the DMP may act under subsection 87(A) of the new Defence Force Discipline Act 1982 .

842.           Subitem 11(4) provides if before the Military Court proceedings start day a person had been charged under a summons prepared under paragraph 87(1)(b) of the old Defence Force Discipline Act 1982 , and the main amendments and repeals apply in relation to the charges under this Schedule, the summons continues to have effect after the Military Court proceedings day as if it had been prepared under the new Defence Force Discipline Act 1982 .

Part 3 - Office Holders 

Item 12 - Chief Judge Advocate

843.           This item has the effect of saving the appointment of the Chief Judge Advocate so that the person who holds the position of Chief Judge Advocate immediately before the Military Court proceedings start day continues to hold the office and can exercise their powers for the purpose of finalising cases to which the old law applies. The appointment will cease when all proceedings under the old law have been finally concluded (the ‘service tribunal proceedings completion day’ to be declared by the Defence Minister under item 16(1) of Schedule 5 to this Bill).  

844.           Subitems 12(2) - 12(7) clarify the terms of appointment of the Chief Judge Advocate continuing on and after the Military Court proceedings start day.  Subitem 12(8) confirms that delegations from the Judge Advocate General to the person as Chief Judge Advocate continue in force.  Subitems 12(9) and 12(10) clarify the benefits available to a person holding office as Chief Judge Advocate on ceasing to hold office provided under the Military Justice (Interim Measures) Act (No.1) 2009 .

Item 13 - Judge advocates

845.           This item has the effect of saving the appointments of members of the judge advocates’ panel so that persons who hold this position immediately before the Military Court proceedings start day continue to hold the office and can exercise their powers for the purpose of finalising cases to which the old law applies. The appointments will cease when all proceedings under the old law have been finally concluded (the ‘service tribunal proceedings completion day’ to be declared by the Defence Minister under subitem 16(1) of Schedule 5 to this Bill). 

846.           Subitems 13(2)-13(6) clarify the terms of appointment of the members of the judge advocates’ panel continuing on and after the Military Court proceedings start day.  Subitems13 (9) and 13(10) clarify the benefits available to a person holding office as a member of the judge advocates’ panel on ceasing to hold office provided under the Military Justice (Interim Measures) Act (No.1) 2009 .

Item 14 - Defence Force magistrates

847.           Subitems 14(1) and 14(2) have the effect of saving the appointments of the Defence Force magistrates to enable proceedings to which the old law will apply after the Military Court proceedings start day, to be completed.   The appointments will cease when all proceedings under the old law have been finally concluded (the ‘service tribunal proceedings completion day’ to be declared by the Defence Minister under subitem 16(1) of Schedule 5 to this Bill).

848.           Subitems 14(3) and 14(4) provide that a person who holds office as a Defence Force magistrate under the old Defence Force Discipline Act 1982 immediately before the Military Court proceedings start day is taken to hold office as a Defence Force magistrate under the new Defence Force Discipline Act 1982 .  In the new system, Defence Force magistrates are required to be able to hear charges where the Military Court determines it is necessary but not possible for the Court to sit overseas. 

Item 15 - Registrar of Military Justice

849.           The effect of this item is to save the appointment of the RMJ so that the person who holds the position immediately before the Military Court proceedings start day continues to hold the office and can exercise their powers for the purpose of finalising proceedings to which the old law applies. The appointment will cease when all proceedings under the old law have been finally concluded (the ‘service tribunal proceedings completion day’ to be declared by the Defence Minister under subitem 16(1) of Schedule 5 to this Bill). 

850.           Subitems 15(4) and 15(5) enable a person to be appointed or reappointed, or appointed to act as RMJ, on or after the Military Court proceedings start day.  This will enable the system to operate effectively during transition to the new system.  This appointment or reappointment will cease when all proceedings under the old law have been finally concluded (the ‘service tribunal proceedings completion day’ to be declared by the Defence Minister under subitem 16(1) of Schedule 5 to this Bill).

851.           Subitem 15(6) clarifies that existing delegations by the RMJ continue in force after the Military Court proceedings start day.  Subitem 15(7) continues the effect of certificates issued by the RMJ under section 175 of the old Defence Force Discipline Act 1982 (stating that a specified amount of fine is due and payable by a person).  Section 175 provides that such certificates shall be received as in any civil court without further proof and is prima facie evidence of the facts stated in it. The certificates relate to the procedural matter of whether moneys are payable.

Item 16 - Declaration of service tribunal proceedings completion day

852.           This item enables the Defence Minister to declare a specified day to be the ‘service tribunal proceedings completion day’.  This will be a day after all proceedings under the old law have been completed.  The declaration will be a legislative instrument under the Legislative Instruments Act 2003 , but will not be subject to disallowance requirements of that Act.  The declaration is necessary to provide certainty about the date on which the appointments of several office holders under the old law cease to have effect.  Disallowance of the declaration would cause uncertainty for these matters. 

Part 4—Abolition of Defence Force Discipline Appeal Tribunal

Item 17 - Defence Force Discipline Appeal Tribunal continues in existence after Military Court proceedings start day

853.           This item provides for the DFDAT to continue to exist, despite the repeal of the Defence Force Discipline Appeals Act 1982 by Schedule 4 to this Act, until the ‘appeal proceedings completion day’. This is to ensure that there is a forum to which accused persons can appeal where the case is one to which the old law applies after the Military Court proceedings start day. 

854.           The Attorney-General must declare a specified day to be the ‘appeal proceedings completion day’ after all proceedings before the DFDAT or the Federal Court of Australia have been finally determined. The declaration will be a legislative instrument under the Legislative Instruments Act 2003 , but will not be subject to disallowance requirements of that Act.  The declaration is necessary to provide certainty about the date on which the appointments of several office holders under the old law cease to have effect.  Disallowance of the declaration would cause uncertainty for these matters. 

Item 18 - Tribunal members

855.           This item provides for the continuation of a person’s appointment as the President of the Tribunal, Deputy President of the Tribunal and a member of the Tribunal after the Military Court proceedings start day until the expiration of their term of appointment or until the appeal proceedings completion day, which ever first occurs.  The terms and conditions provided for in the Defence Force Discipline Appeals Act 1955 will continue to apply for the same duration.

856.           The item also provides that a person may be appointed or reappointed as the President of the Tribunal, Deputy President of the Tribunal and a member of the Tribunal on or after the Military Court proceedings start day, which would cease at the earliest of the expiration of their term of appointment, or at the beginning at the beginning of the appeal proceedings completion day.

Item 19 - Registrar and Deputy Registrars of the Tribunal

857.           This item provides for the continuation of the office of the Registrar and Deputy Registrar of the Tribunal, after the Military Court proceedings start day, until the expiration of their term of appointment or until the completion day, which ever first occurs.  The terms and conditions provided for in the Defence Force Discipline Appeals Act 1955 will continue to apply for the same duration

858.           The item also provides that a person may be appointed or reappointed as Registrar and Deputy Registrar of the Tribunal on or after the Military Court proceedings start day, which would cease at the earliest of the expiration of their term of appointment, or at the beginning at the beginning of the appeal proceedings completion day.

Item 20 - Offences in relation to the Tribunal

859.           Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Bill, this item provides that a prosecution may be instituted, on or after the Military Court proceedings start day, in respect of an offence against Part IV of the Defence Force Discipline Appeals Act 1955 as that Act continues to apply because of this Schedule.

Item 21 - Recovery of fines etc

860.           This item provides for money to be recovered under section 174 of the old Defence Force Discipline Act 1982 where a fine or reparation order was made by the Tribunal on or after the Military Court proceedings start day.  Section 174 enables money payable from fines or reparation orders to be deducted from a person’s pay or recovered by action in a civil court.

Item 22 - Evidence of fines etc

861.           This item provides that an authorised officer under section 175 of the new Defence Force Discipline Act 1982 , or Defence employee, may issue a certificate stating that that a specified amount of fine or reparation order made by the Tribunal is due and payable by a person. This will apply to fines and reparation orders made by the Tribunal before, on, or after the Military Court proceedings start day.  Consistent with old section 175, the item provides that such certificates shall be received as in any civil court without further proof and is prima facie evidence of the facts stated in it.  The certificates relate to the procedural matter of whether moneys are payable.

Item 23 - Continuation of exception under the Age Discrimination Act 2004

862.           This item provides for the continuation of the exception under the Age Discrimination Act 2004 for anything done in direct compliance with the Defence Force Discipline Appeals Act 1955 as it continues to apply by operation of this Schedule.  This Schedule includes mandatory age requirements.

Part 5 - Other provisions

Item 24 - Transitional—superior authorities

863.           This item provides that an officer who was appointed as a superior authority for the purposes of paragraph 5A(a) and (b) of the old Defence Force Discipline Act 1982 , will also be taken to be a superior authority for the purposes of paragraph 5A(aa) of the new Defence Force Discipline Act 1982 .  This new paragraph 5A(aa) gives superior authorities additional power to refer charges to a Defence Force magistrate or convene a court martial when directed to do so by the DMP.

Item 25 - Saving—authorised members of the Defence Force

864.           This item saves the appointment of authorised members under subsection 87(6) of the old Defence Force Discipline Act 1982 .  Despite the repeal of subsection 87(6), an authorisation under that subsection that is in effect immediately before the Military Court proceedings start day, is taken to continue after the Military Court proceedings start day as if the authorisation was made under subsection 87(7) of the new Defence Force Discipline Act 1982 .  These authorisations have effect for the purpose of charging and issuing summonses to persons believed to have committed a service offence.

Item 26 - Saving—authorisation of officers for the purposes of section 90

865.           This item saves the authorisation of officers for the purposes of section 90 of the old Defence Force Discipline Act 1982 so that, after the Military Court proceedings start day, they continue as if they were authorized under section 90 of the new Defence Force Discipline Act 1982 .  These authorisations have effect for the purpose of issuing warrants of arrest.

Item 27 - Application—persons in custody of commanding officer

866.           This item saves the application of section 95 of the old Defence Force Discipline Act 1982 after the Military Court proceedings start in relation to a person who was charged under subsection 95(2) before the Military Court proceedings start day.  Section 95 provides for avoidance of delay after arrest, and includes procedures to be followed to ensure that, once a person  is charged, a commanding officer causes proceedings to be commenced for dealing with the charge as soon as practicable.  This would apply in limited circumstances where a person had been arrested and was in custody at the Military Court proceedings start day.

Item 28 - Saving—list of legal officers

867.           This item provides that the list of legal officers established under subsection 101F(2) of the old Defence Force Discipline Act 1982 continues after the Military Court proceedings start day as if the list had been established under the subsection 101F(2) of the new Defence Force Discipline Act 1982 .  This list of legal officers is used to identify persons who may be available to assist accused persons.

Item 29 - Saving—authorisation of officers for the purposes of section 101X

868.           This clause saves the authorisation of officers, or an officer included in the class of officers, authorised for the purposes of section 101X of the old Defence Force Discipline Act 1982 .  The authorization continues to operate after the Military Court proceedings start day as if the authorization was made for the purposes of section 101X of the new Defence Force Discipline Act 1982 .  These authorisations have effect for the purpose of issuing warrants for specified types of search and seizure.

Item 30 - Saving—authorisation of officers for the purposes of section 101Y

869.           This item saves the authorisation of officers, or an officer included in the class of officers, authorised for the purposes of section 101Y of the old Defence Force Discipline Act 1982 .  The authorisation continues to operate after the Military Court proceedings start day as if the authorisation was made for the purposes of section 101Y of the new Defence Force Discipline Act 1982 .  These authorisations have effect for the purpose of issuing warrants by telephone.

Item 31 - Saving—Court Martial and Defence Force Magistrate Rules

870.           This item provides that despite the repeal of section 149A of the old Defence Force Discipline Act 1982 by Item 105 of Schedule 1 of this Bill, which provides for the Judge Advocate General to make Court Martial and Defence Force magistrate Rules, the Court Martial and Defence Force magistrate Rules in force immediately before the Military Court proceedings start day will continue to remain in force for the purposes of proceedings before a court martial or Defence Force magistrate to which the old law applies and will continue to so apply until all proceedings in relation to the charges, cases or convictions are finally determined.

871.           Item 165 of Schedule 1 to this Bill gives the Judge Advocate General the power to make new Court Martial and Defence Force magistrate Rules under clause 46 of Schedule 3B for the purposes of proceedings before a court martial or a Defence Force magistrate under the new law after the Military Court proceedings start day.

Item 32 - Saving—non-publication orders etc in proceedings before a court martial or Defence Force magistrate

872.           This item provides that an order under subsection 140(2) of the old Defence Force Discipline Act 1982 immediately before the Military Court proceedings start day continues in force after that day.  These orders have the effect of excluding members of the public from proceedings, or preventing publication of reports of proceedings.

873.           The item also saves the application of section 90 of the Defence Act 190 3 in relation to offences for contravening an order under section 140 of the old Defence Force Discipline Act 1982 made before, on or after the Military Court proceedings start day.

Item 33 - Saving—things done under the old law before the Military Court proceedings start day

874.           This item is inserted to avoid doubt, and confirms that the main amendments and repeals do not affect validity of actions under the old law before the Military Court proceedings start day.

Item 34 - Application—amendment of service offences

875.           This item provides that the amendments to offences in Part 2 of Schedule 1 apply to acts and omissions that take place after the commencement of this Part.  For the purposes of this item, where an act or omission is alleged to have taken place between two dates, one before and one after the commencement of the amendments to offences in Part 2 of Schedule 1 to this Bill, the act or omission will be alleged to have taken place before that commencement.  This will ensure that there is no retrospective application of amendments to service offences.

Item 35 - Application—definition of Federal Magistrates in Acts Interpretation Act 1901

876.           This item provides that the amendments of section 16C of the Acts Interpretation Act 1901 made by items 2 and 3 of Schedule 3 to this Bill apply, one and after commencement of those items, in relation to Acts enacted before, on or after that commencement.  This has the effect that all references to Federal Magistrates in other Commonwealth Acts will include references to Federal Magistrates of the Military Court.

Part 6—Regulations

Item 36 - Regulations may deal with transitional etc matters

877.           This item provides for the Governor-General to make regulations dealing with matters of a transitional, saving or application nature in relation to amendments and repeals made by this Act.