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Military Justice (Interim Measures) Amendment Bill 2013

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2010-2011- 2012 - 2013

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

MILITARY JUSTICE (INTERIM MEASURES) AMENDMENT BILL 2013

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by the authority of the Minister for Defence,

the Hon Stephen Smith MP)



MILITARY JUSTICE (INTERIM MEASURES) AMENDMENT BILL 2013

GENERAL OUTLINE

1.              The Military Justice (Interim Measures) Act (No. 1) 2009 was designed to sustain the military justice system until such time as the Parliament decided how to permanently address the issue of the trial of serious service offences in the Australian Defence Force, following the invalidation of the legislation establishing the Australian Military Court. 

2.               The Military Justice (Interim Measures) Amendment Bill 2013 provides for the appointment, remuneration, and other entitlements of certain statutory office holders, namely the Chief Judge Advocate and one judge advocate, both of whom are full time members of the Australian Defence Force .  Schedule 3 of Military Justice (Interim Measures) Act (No. 1) 2009 currently provides a fixed tenure of up to four years for both the Chief Judge Advocate and current full time judge advocate. That tenure is due to expire in September 2013.

3.              This Bill amends Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 to extend the appointment, remuneration, and entitlement arrangements provided for in that Act for an additional two years, thereby providing a fixed tenure for the Chief Judge Advocate and current full time judge advocate of up to six years, or until the Minister for Defence declares, by legislative instrument, a specified day to be a termination day, whichever is sooner.  The legislative instrument would not be subject to disallowance. 

FINANCIAL IMPACT STATEMENT

4.              There will be no net impact on consolidated revenue.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Military Justice (Interim Measures) Amendment Bill 2013

5.              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 .

6.              The purpose of Australia's military discipline system is to support command in maintaining and enforcing service discipline in order to enhance operational effectiveness. A military discipline system that supports the authority and effectiveness of commanders is of vital importance in the operation of the ADF.

7.              The Bill operates in conjunction with the Military Justice (Interim Measures) Act (No 1) 2009 to preserve appointment arrangements made in that Act until the legislation for a permanent solution for the trial of serious service offences is passed and commences operation.

8.              This Bill makes amendment to Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 .

9.              The Bill does not have an impact on human rights and is therefore 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 .



NOTES ON CLAUSES

Clause 1 - Short title

10.          This clause provides the short title of the Act to be the Military Justice (Interim Measures) Amendment Act 2013

Clause 2 - Commencement

11.          This clause provides that, with the exception of Schedule 1 items 3, 7 and 8, the Act will commence on Royal Assent.

12.          This clause further provides that items 3, 7 and 8 will commence on 22 September 2009. The purpose of this retrospective commencement is to avoid any uncertainty with regard to whether or not the deemed appointments made by Parliament in the Military Justice (Interim Measures) Act (No 1) 2009 are subject to conditions contained in the Defence Force Discipline Act 1982 that apply to appointments made by the Chief of the Defence Force, service chiefs, or the Judge Advocate General.

Schedule 1 - Amendment

Military Justice (Interim Measures) Act (No. 1) 2009

Item 1 - Subparagraph 2(3)(a)(i) of Schedule 3

13.          This item amends subparagraph 2(3)(a)(i) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 .  Subparagraph 2(3)(a)(i) is a deeming provision which provides that the person serving as the Chief Military Judge immediately prior to 26 August 2009 (the date of the decision of the High Court in the matter of Lane v Morrison ), becomes the Chief Judge Advocate as though appointed under s 188A of the Defence Force Discipline Act 1982 , for a period of up to four years.

14.          This item extends that period of appointment for a further two years for a period of up to six years.

Item 2 - Subparagraph 2(3)(a)(ii) of Schedule 3

15.          This item amends subparagraph 2(3)(a)(ii) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 .  Subparagraph 2(3)(a)(ii) of Schedule 3 provides that if the office of Chief Judge Advocate ceases to exist before the end of the four year prescribed period then the appointment is to be for the period beginning on the day the provision commences and ending when that office ceases to exist.

16.          This item extends the specified period as a consequence of the amendment in item 1, and makes provision for the period of appointment to be less than six years if and when the Minister for Defence declares a ‘termination day’ under item 8 before the end of that six year period.

Item 3- Insertion of a new subitem 2(7A) of Schedule 3

17.          This item will be taken to have commenced on 22 September 2009 and provides that the limitation contained in subsection 188A(2) of the Defence Force Discipline Act 1982 to an appointment of five years as Chief Judge Advocate, when appointed by the Judge Advocate General, does not apply to the Chief Judge Advocate appointed by virtue of Schedule 3 subitem 2(2) of the Military Justice (Interim Measures) Act (No. 1) 2009 .

18.          This item will ensure that there is no uncertainty surrounding the validity of the appointment of the Chief Judge Advocate. There is no disadvantage to this office holder by the retrospective operation of the amendment. The amendment reflects the intention to extend the appointment period of the position so that the military justice system can continue to be supported pending a permanent solution to the system of trials of serious service offences.

Item 4- Paragraph 3(1)(a) of Schedule 3

19.          This item amends paragraph 3(1)(a) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 by replacing the reference to a four year period with a reference to a six year period. This amendment will ensure that the Chief Judge Advocate is not entitled to be paid an amount under item 3 if, before the termination day, the Chief Judge Advocate is offered suitable alternative employment by the Commonwealth or if  the Chief Judge Advocate ceases to be a member of the Permanent Forces.

Item 5 - Subparagraph 4(3)(a)(i) of Schedule 3

20.          This item amends subparagraph 4(3)(a)(i) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 .  Subparagraph 4(3)(a)(i) of the Military Justice (Interim Measures) Act (No. 1) 2009 is a deeming provision which provides that a person serving as a Military Judge immediately prior to 26 August 2009 (the date of the decision of the High Court in the matter of Lane v Morrison ), becomes a member of the judge advocates' panel, as though appointed by the Chief of the Defence Force or a service chief, under section 196 of the Defence Force Discipline Act 1982 , for a period of up to four years beginning on the commencement of that provision. 

21.          This item extends that period of appointment for a further two years.

Item 6- Subparagraph 4(3)(a)(ii) of Schedule 3

22.          This item amends subparagraph 4(3)(a)(ii) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 .  Subparagraph 4(3)(a)(ii) of Schedule 3 provides that if the judge advocates’ panel ceases to exist before the end of the four year period specified under existing subparagraph 4(3)(a)(i), then the appointment is to be for the period beginning on the day the provision commences and ending when that judge advocates’ panel ceases to exist.

23.          This item extends the specified period to six years.

Item 7 - Subitem 4(9) (heading) of Schedule 3

24.          Item 7 repeals the heading of the existing subitem 4(9) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 and substitutes a new heading applicable to the new subitem 4(8A) inserted by Item 8 of this schedule.

Item 8 subitem 4(8A) of Schedule 3

25.          Item 8 inserts new subitem 4(8A) into the Military Justice (Interim Measures) Act (No. 1) 2009 which will be taken to have commenced on 22 September 2009 and provides that the limitation of an appointment to three years as a member of the judge advocates' panel when appointed by the Chief of the Defence Force or a service chief, contained in subsection 196(2A) of the Defence Force Discipline Act 1982 , does not apply to a judge advocate appointed by virtue of Schedule 3 subitem 2(2) of the Military Justice (Interim Measures) Act (No. 1) 2009 . This reflects the same intent outlined in paragraph 18 above in relation to the appointment of the Chief Judge Advocate.

Item 9 - Paragraph 5(1)(a) of Schedule 3

26.          This item amends paragraph 5(1)(a) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 by replacing the reference to a four year period with a reference to a six year period. This amendment will ensure that the members of the judge advocates’ panel are not entitled to be paid an amount under item 5 if, before the termination day, they are offered suitable alternative employment by the Commonwealth, or if they cease to be a member of the Permanent Forces.

Item 10 - Subitem 8(1) of Schedule 3

27.          Subitem 8(1) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009 provides that the Minister for Defence may declare, in writing, a specified day to be the termination day for the purpose of this Schedule.  The termination day must be after the day the declaration is made and before the end of the four year period beginning on the commencement day. 

This item extends the four year period in subitem 8(1) to a period of six years.