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Defence Legislation Amendment Bill (No. 2) 2005

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2004 - 2005

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

DEFENCE LEGISLATION AMENDMENT BILL (No. 2) 2005

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by the Minister for Defence, Senator Robert Hill)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DEFENCE LEGISLATION AMENDMENT BILL (No. 2) 2005

 

OUTLINE

This Bill will amend various Defence administered legislation. These are -

 

·          the Defence Force Discipline Act 1982

·          the Defence Act 1903

 

The amendments to the Defence Force Discipline Act 1982 and the Defence Act 1903 comprise the majority of the amendments, to give effect to certain recommendations made by Brigadier the Honourable Mr Justice Abadee in his 1997 Study into the Judicial System under the Defence Force Discipline Act (the Abadee Report) and Mr James Burchett QC in his 2001 Report of an Inquiry into Military Justice in the Australian Defence Force (the Burchett Report). Additionally, a number of the amendments are an initial step towards giving effect to the Government response to the Senate Foreign Affairs, Defence and Trade References Committee inquiry into The effectiveness of Australia’s military justice system (which reported on 16 June 2005).

 

In broad terms, the amendments:

 

·          create the statutory appointment of the Director of Military Prosecutions;

 

·          create the statutory appointment of the Registrar of Military Justice;

 

·       create the statutory appointment of the Inspector General of the Australian Defence Force;

 

·          provide for the remuneration arrangements of the Chief Judge Advocate to be set by the Remuneration Tribunal as will those for the Director of Military Prosecutions and the Registrar of Military Justice; and

 

·          remove the roles and functions currently given to “Convening Authorities” in favour of the Director of Military Prosecutions, Registrar of Military Justice and Superior Authorities.

 

FINANCIAL IMPACT

The proposals to establish the Director of Military Prosecutions, the Registrar of Military Justice and the Inspector General of the Australian Defence Force on a statutory footing will involve additional costs. Additional costs and resources required will be met from within the allocation.

 

The remaining amendments in the Bill have no financial impact.



NOTES ON CLAUSES

 

Clause 1

1.       Clause 1 is a formal provision specifying the short title of the Bill as the Defence Legislation Amendment Act (No.2) 2005.

 

Clause 2

2.       Clause 2 provides for the commencement of various provisions in the Bill. Commencement will occur in accordance with the terms of the table.

 

Clause 3

3.       Clause 3 provides that the Acts specified in each of the Schedules to the Bill are amended as provided for in the identified items in each of those Schedules.

 

Schedule 1 - Director of Military Prosecutions and Registrar of Military Justice - Defence Force Discipline Act 1982

 

4.       The proposed amendments to the Defence Force Discipline Act 1982 (the Act)contained in the Bill will, among other things, eliminate the role of a “convening authority” and will allocate prosecution functions currently given to convening authorities to a “Director of Military Prosecutions”  and the trial administration functions to a “Registrar of Military Justice” . The Burchett Report recommended the establishment of the Director of Military Prosecutions as an independent prosecutorial authority for the Australian Defence Force , which would undertake prosecutions of members of the Australian Defence Force facing trial by either court martial or Defence Force magistrate under the Act.

 

5.       The proposed amendments will establish the Director of Military Prosecutions. They will also provide for the appointment, powers and functions, tenure, qualifications, remuneration and legal immunity. Many of the provisions have been modelled on those that establish the Director of Public Prosecutions under the Director of Public Prosecutions Act 1990 (ACT) and the Director of Public Prosecutions Act 1983 (Cth).

 

6.       The Registrar of Military Justice will assume responsibility for the administration of courts martial or Defence Force magistrate trials and will also assume an overall case management function. It is also proposed that the Registrar of Military Justice will assume responsibility for procedural and administrative powers and functions associated with post trial administration of courts martial and Defence Force magistrate trials under the Act presently performed by the staff of convening authorities. Similar to the Director of Military Prosecutions , provisions relating to the appointment, remuneration and functions, will also be provided for.

 

7.       The concept of “Superior Authorities” is also being included in the Bill. In the exercise of the prosecution discretion currently vested in convening authorities, convening authorities have regard to the impact on discipline of alleged offences. Where there is a significant disciplinary impact, it may be appropriate to refer such offences to a court martial or Defence Force magistrate. As matters are currently referred by summary authorities to senior officers who exercise the functions of convening authorities, senior officers have proper oversight of discipline within their respective commands. To maintain this oversight within the new regime proposed under the Bill, the concept of “superior authority” is being incorporated. These will be appointed by a Service Chief and will represent the Service interest in pursuing a matter at the court martial or Defence Force magistrate level.

 

Items 1-7 -subsection 3(1) Definitions

8.       Items 1-7 amend subsection 3(1) of the Act, the interpretation section, by amending, adding or repealing certain definitions required as a result of the new arrangements in the Bill.

 

9.       Item 1 replaces the reference to ‘a convening authority’ with ‘the Registrar of Military Justice’ in the definition of ‘appropriate authority’. The definition of ‘appropriate authority’ is used in subsections 87(5) and 138(2) which relate to the power to issue a summons to secure the attendance of a defendant, person or a witness before a service tribunal. The exercise of this power to issue a summons is consistent with the role of the Registrar of Military Justice to provide for the administration of service tribunals.

 

10.     Item 2 inserts a definition of Chief Judge Advocate.

 

11.     Item 3 repeals the definition of ‘convening authority’. The new arrangements involving the Director of Military Prosecutions, Registrar of Military Justice and superior authorities subsume the functions of convening authorities.

 

12.     Item 4 inserts a definition of Defence Force Discipline Appeal Tribunal.

 

13.     Item 5 inserts a definition of Director of Military Prosecutions.

 

14.     Item 6 inserts a definition of Registrar of Military Justice.

 

15.     Item 7 inserts a definition of superior authority.

 

Item 8

16.     Item 8 provides for the appointment of superior authorities. One of the roles of the superior authority is to represent the interests of the Defence Force in relation to charges referred to the Director of Military Prosecutions. This is so that in a disciplinary process, command maintains input into the process without interfering with the independence of the Director of Military Prosecutions.

 

Items 9-11 Director of Military Prosecutions powers

17.     Item 9 provides for the Director of Military Prosecutions to have certain powers in relation to directing what is to be done once a charge has been preferred by the Director of Military Prosecutions. The Director of Military Prosecutions has the power to prefer charges as the Director of Military Prosecutions is an ‘authorized officer’ for the purposes of the section (see subsection 87(6)).

 

18.     The Director of Military Prosecutions is given the power to request the Registrar of Military Justice to refer the charge to a Defence Force Magistrate or convene a court martial to try the charge without the need for a charge to be first dealt with by a Commanding Officer under section 110 of the Act.

 

19.     Item 10 clarifies that the powers under paragraph 87(1)(c) are in addition to and not in substitution for the Director of Military Prosecutions’s powers under paragraphs 1(a) and (b). That is, the Director of Military Prosecutions can order a defence member to appear before a summary authority at a specified time and place to be dealt with in accordance with sections 110 or 111, or cause a summons to be prepared.

 

20.     To issue an enforceable order, a person issuing the order would still be required to be capable of giving the charged member a lawful command before issuing such an order consistent with section 27 of the Act and the Defence Act 1903 .

 

21.     Item 11 repeals the existing subsection 87(6) and substitutes a new subsection (6) to ensure that the Director of Military Prosecutions is an authorized member for the purposes of section 87, which enables to Director of Military Prosecutions to, inter alia, prefer charges. As a statutory authorization, only members who are authorized members under subsection (6) may prefer charges, and the authorization under paragraph 87(6)(b) is not able to be delegated.

 

Items 12-13 Registrar of Military Justice authorisation

22.     Item 12 inserts a reference to the Registrar of Military Justice in subsection 88(1), to ensure that the Registrar of Military Justice is authorized for the purposes of section 88. To issue an enforceable order, a person issuing the order would still be required to be capable of giving the charged member a lawful command before issuing such an order consistent with section 27 of the Act and the Defence Act 1903.

 

23.     Item 13 adds a new subsection 88(1A) which limits the actions of the Registrar of Military Justice under subsection 81(1) to instances where the Registrar of Military Justice has been directed by a Judge Advocate or Defence Force magistrate to carry out the actions.

 

Items 14-16 ‘Superior authority’ protections.

24.     Item 14 amends subsection 95(4) by replacing the reference to ‘convening authority’ with ‘superior authority’ and ‘Director of Military Prosecutions’. This item provides protection for a person in custody by ensuring that someone in the command hierarchy is aware that a person is being held in custody. In addition, item 14 provides further protection for a person in custody by requiring notification to the Director of Military Prosecutions, noting that the Director of Military Prosecutions can bring the matter to trial.

 

25.     Item 15 amends subsection 95(5) in the same way as subsection 95(4), by replacing ‘convening authority’ with ‘superior authority’ and ‘Director of Military Prosecutions’. This item also provides protection for a person in custody by ensuring that someone in the command hierarchy is aware that a person is being held in custody. In addition, this item provides further protection for a person in custody by requiring notification to the Director of Military Prosecutions, noting that the Director of Military Prosecutions can bring the matter to trial.

 

26.     Item 16 amends subsection 95(8) by replacing ‘convening authority’ with ‘superior authority’. This item provides protection for a person in custody by ensuring that someone in the command hierarchy who has the authority to order the release of the person under subsection 95(9) is aware that a person is being held in custody.

 

Items 17 & 18

27.     Item 17 amends subsection 95(8) by including the Director of Military Prosecutions as a person that must be notified in accordance with subsection 95(8). The Director of Military Prosecutions is included as a person to be notified in addition to someone in the command hierarchy as an additional protection for a person in custody. The effect of this item is that the notification must go to two appointment holders, namely the Director of Military Prosecutions and one of the Chief of the Defence Force, a service chief or an authorized officer.

 

28.     Item 18 amends paragraph 97(5)(a) by omitting the reference to “a convening authority” and substituting  “Director of Military Prosecutions”. This will ensure that a person is no longer subject to conditions or restrictions when any of the appointments with the requisite power have directed that a charge should not be proceeded with.

 

Items 19 - 21

29.     Item 19 repeals and substitutes the heading of Division 1 of Part VII - “Director of Military Prosecutions”. This will reflect the fact that the decisions made under this Division are prosecutorial decisions rather than decisions concerning the administration of courts martial and Defence Force magistrate trials .

 

30.     Item 20 repeals the section providing for the appointment of convening authorities, as the powers of a convening authority have been redistributed to other appointments.

 

31.     Item 21 amends subsection 103(1) so that the powers previously exercised by a convening authority will now be exercised by the Director of Military Prosecutions, Registrar of Military Justice or a superior authority.

 

Items 22 - 98, 110, 111 Allocation of Responsibilities

32.     Items 22-48, 50-61, 64, 69, 70, 73, 76-78, 81-87, 89-95, 110, 111 amend various sections of the Act which confer certain powers on, and make certain courses of action available to, convening authorities. The intent is to allocate the decisions related to serious charges to an independent statutory authority with legal training and professional obligations, to allocate court and trial administration to an independent authority, and to remove the current exercise of multiple roles by a single convening authority. The allocation of responsibilities between the Director of Military Prosecutions and the Registrar of Military Justice reflects the functions of the two appointments and recognises the independence of the prosecutorial function from the administration of courts and trials.

 

33.     Item 49 inserts new section 105A which will provide for the direct referral of a charge to the Director of Military Prosecutions without the requirement for the charge to be dealt with at a summary hearing. The intent of this item is to allow for direct referrals to the Director of Military Prosecutions where there would be little or no benefit from a summary hearing. For example, either highly complex charges, or simple charges against senior officers that cannot be tried by a summary tribunal. Where the interests of justice so require, this item would also allow for the Director of Military Prosecutions to be able to direct that a charge not be proceeded with.

 

34.     This power cannot be exercised by any commanding officer or superior officer, but is exercisable only by the person’s commanding officer, which will include an officer authorized under subsection 5(1) or section 113 where it is intended that the officer would exercise the powers of a commanding officer under the Act over the particular person, or a superior officer in the person’s chain of command. Where the person is a Defence civilian, the relevant commanding officer or superior officer will be discernible from the part of the Defence Force that the Defence civilian is accompanying.

 

35.     Once a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions will dispose of the charge under subsection 103(1). Pursuant to subsection 105A(3), this will include the option to refer the charge for trial by a superior summary authority or commanding officer.

 

36.     Items 62, 63 and 65-68 amend section 125 of the Act to implement the conceptual approach to the allocation of responsibilities that were previously exercised by convening authorities. Once a court martial has assembled, variations to the convening order can be made only at the direction of the Judge Advocate, who will be required to give reasons for any such direction.

 

37.     Item 71 amends paragraph 129A(1) to implement the conceptual approach to the allocation of responsibilities that were previously exercised by convening authorities. Prior to a Defence Force magistrate commencing to try a charge or hear a case, a termination of the reference is made by the Registrar of Military Justice, whereas after a Defence Force magistrate has commenced to try a charge or hear a case, then except for as otherwise provided in the Act, a termination of the reference can be made only at the direction of the Defence Force magistrate, who will be required to give reasons for any such direction.

 

38.     Item 72 amends paragraph 129A(2)(a) to provide for an additional mechanism by which a matter may be referred to the Registrar of Military Justice for trial by Defence Force magistrate.

 

39.     Item 73 amends subsection 129A(2) to allow an exception to the rule that once a Defence Force magistrate has commenced to sit, the reference can be terminated only at the direction of the Defence Force magistrate. The purpose of this item is to allow for the termination of a reference when a Defence Force magistrate is unable to make a direction under subparagraph 129A(1)(b)(ii). It could also be used in an exceptional circumstance where a Defence Force magistrate was unwilling to make a direction under subparagraph 129A(1)(b)(ii) but where the interests of justice plainly required such a direction.

 

40.     Items 74 and 75 amend subsection 129A(3) to implement the conceptual approach to the allocation of responsibilities that were previously exercised by convening authorities. Once a matter is referred back to the Director of Military Prosecutions by the Registrar of Military Justice under subsection 129A(3), the Director of Military Prosecutions will then dispose of the charge under subsection 103(1).

 

41.     Items 79 and 80 amend subsections 129B(1) and (2) to reflect the re-allocation of some of the responsibilities of convening authorities to the Registrar of Military Justice. In doing so, it is appropriate for the Registrar of Military Justice to make decisions on bias, rather than the Judge Advocate General.

 

42.     Subsection 129B(3) ensures that with the transfer of responsibility for court administration from command to the Registrar of Military Justice, Service Chiefs are required to facilitate the decisions of the Registrar of Military Justice. ‘Appropriate’ Service Chief is a reference to the Service Chief of the court martial member appointed by the Registrar of Military Justice, and is not a reference to the Service Chiefs of the defendant. Regardless of whether there is one defendant or co-defendants, courts martial panels may consist of members from more than one service.

 

43.     Item 88 amends subsection 137(1) to provide for the re-allocation of responsibilities previously exercised by convening authorities. The role of superior authorities is to represent the service interests in the proper administration of discipline, one aspect of which is ensuring appropriate representation for an accused. The appropriate superior authority to ensure representation for a defendant will usually be a superior authority in the defendant’s chain of command.

 

44.     Items 96 and 97 amend section 149 of the Act that provides for the Judge Advocate General to make rules of procedure to regulate the operation of the Registrar of Military Justice. Item 96 is not intended to affect the interpretation of other sections of the Act where the conjunction appears only at the end of the second last subsection.

 

45.     Item 98 amends section 150A of the Act. As is currently the case with respect to convening authorities and reviewing authorities, it is envisaged that a number of officers may be authorised as both superior authorities and reviewing authorities. This item ensures that a particular officer may exercise only one of the authorisations in any given case, not both. The purpose of the amendment is to ensure the impartiality of the reviewing authority.

 

Item 99

46.     Item 99 repeals and substitutes the heading in Part XI of the Act to reflect the new statutory appointment of the Registrar of Military Justice, an appointment that by the nature of the position is functionally grouped with the Judge Advocate General, Deputy Judge Advocates General and the Chief Judge Advocate.

 

Items 100 & 101 Judge Advocate General appointment

47.     Item 100 amends section 180(3) to clarify that the Judge Advocate General may be a defence member.

 

48.     Item 101 amends section 185(5) to provide similar remuneration arrangements for a defence member who is a Judge Advocate General as that provided for the Deputy Judge Advocate General.

 

Items 102 - 105 Chief Judge Advocate appointment

49.     Items 102 and 103 amend subsections 188A(2) and 188A(3) of the Act, which provide for the term of appointment for the Chief Judge Advocate. The term of appointment has been changed to be consistent with the terms of appointment of the Director of Military Prosecutions and Registrar of Military Justice. While more than one re-appointment may be made, the length of the appointments should be such as to ensure proper independence, and the expectation is that an appointment would normally be for the maximum term available.

 

50.     Item 104 amends the minimum rank of the Chief Judge Advocate, so that, as a minimum, the Chief Judge Advocate will be of equal, if not higher, rank than the Director of Military Prosecutions. As only minimum ranks are provided, it is technically possible for the Director of Military Prosecutions to be promoted to a higher rank than the minimum provided while the Chief Judge Advocate enjoys the minimum rank, but it is intended that should the Director of Military Prosecutions be promoted above the minimum rank specified, the Chief Judge Advocate should be promoted to an equal or higher rank.

 

51.     Item 105 inserts proposed section 188E to the Act to provide for the remuneration of the Chief Judge Advocate to be determined by the Remuneration Tribunal. This item has been inserted to improve the independence of the Chief Judge Advocate, and is consistent with the remuneration provisions of the Director of Military Prosecutions and Registrar of Military Justice.

 

Item 106 Registrar of Military Justice

52.     Item 106 adds the new Division dealing with the Registrar of Military Justice.

 

53.     Proposed section 188F creates the position of the Registrar of Military Justice. The Burchett Report recommended the creation of a similar appointment to assume responsibility for the administration of trials and to assume an overall case management function. The Registrar will assume responsibility for a number of related formal legal requirements under the Act presently performed by convening authorities.

 

54.     Proposed section 188FA provides for the functions of the Registrar of Military Justice. The Registrar of Military Justice is separate, distinct and independent of the Director of Military Prosecutions. Essentially, the Registrar of Military Justice will provide administrative and management services in connection with charges and trials under the Act. This is in addition to functions conferred on him or her under the Act or other Commonwealth legislation or as are prescribed under the regulations.

 

55.     Proposed section 188FB provides for the manner and terms of appointment of the Registrar of Military Justice. For example, he or she must be appointed by the Minister on a full time basis. Other terms and conditions applicable to the appointment may be determined by the Minister.

 

56.     Proposed section 188FC provides the qualifications that a person must have before they are appointed as Registrar of Military Justice. This item recognises that it is essential that the Registrar of Military Justice is an experienced military officer with significant legal experience, although noting that routine matters may be delegated to a public servant (see proposed section 188FM).

 

57.     As remuneration and allowances are set independently, it is envisaged that the Registrar of Military Justice could be promoted during a period of appointment, or upon being offered re-appointment. There is no presumption that the appointment as the Registrar of Military Justice would be a terminal appointment in the Defence Force.

 

58.     Proposed section 188FD provides for the tenure of the Registrar of Military Justice. More than one re-appointment may be made, however, the length of the appointments should be such as to ensure proper independence.

 

59.     Proposed section 188FE provides for the manner by which the Registrar of Military Justice may resign.

 

60.     Proposed section 188FF provides that the Registrar of Military Justice must make an oath or affirmation in accordance with the form in Schedule 4 of the Act before proceeding to discharge the duties of his or her office. The oath or affirmation may be made before the Judge Advocate General, a Deputy Judge Advocate General or the Chief Judge Advocate.

 

61.     Proposed section 188FG provides for the remuneration for the Registrar of Military Justice.

 

62.     Proposed section 188FH provides for the Registrar of Military Justice’s entitlement to leave and the manner in which it is granted. Recreation leave entitlements are to be granted by the Remuneration Tribunal. Other leave entitlements may be determined by the Minister.

 

63.     Proposed section 188FI provides that the Registrar of Military Justice must not engage practice as a legal practitioner outside the duties of his or her office, or without the approval of the Minister engage in paid employment outside the duties of his or her office. This section is not intended to prevent an application by a party alleging a conflict of interest based on the voluntary or other activities of the Registrar of Military Justice where it is alleged that such activities may have resulted in a conflict of interest, or reasonable apprehension of a conflict of interest, in any particular case.

 

64.     Proposed section 188FJ provides for grounds on which the appointment of the Registrar of Military Justice can be terminated by the Minister. These are standard provisions in respect of statutory appointments and mirror those in respect of the Director of Military Prosecutions.

 

65.     Proposed section 188FK provides that the Registrar of Military Justice is under an obligation to disclose interests that could conflict with the proper performance of the functions of his or her office. It also sets out the requirement that any disclosures must be in writing and given to the Minister. Instances of conflict might include either a direct or indirect (whether or not pecuniary) interest and whether or not they were acquired before or after the appointment.

 

66.     Proposed section 188FL provides for the acting appointments of a Registrar of Military Justice to be made by the Minister during a vacancy in the office or when the Registrar of Military Justice is absent from duty or from Australia. It further provides that anything done by or in relation to a person purporting to act under the item is not invalid merely because the appointment was in some way defective, the appointment ceased to have effect or the acting arrangements had not arisen or had ceased. The item further outlines the conditions for an acting appointment.

 

67.     Proposed section 188FM provides for a broad delegation power. A broad power of delegation is necessary to ensure the proper functioning of the office across the entire range of Registrar of Military Justice’s functions. These delegations could be standing or for a restricted period, for example due to absences from the office. This broad discretion enables the Registrar of Military Justice to delegate powers consistent with the experience and qualifications of the delegate, and the frequency of exercise of the various powers.

 

Item 107 Director of Military Prosecutions

68.     Item 107 inserts new Part XIA which establishes the Director of Military Prosecutions. This position is established in a discrete part to reflect the independence of the Director of Military Prosecutions.

 

69.     Proposed section 188G creates the position of the Director of Military Prosecutions.

 

70.     Proposed section 188GA provides for the functions of Director of Military Prosecutions. These are to:

 

·          prosecute service offences in proceedings before a Defence Force magistrate or a court marital. This sub-section is not intended to limit the right of the Director of Military Prosecutions or the Director of Military Prosecutions’ staff to appear before a summary tribunal where they would be otherwise entitled to appear;

 

·          seek the consent of the Director of Public Prosecutions as required by section 63 of the Act;

 

·          make statements or provide information to particular persons, to the public or to particular sections of the public relating to the exercise of powers or the performance of functions under the Act. These statements could, for example, relate to a decision taken whether or not to prosecute an offence and the reasons for that decision;

 

·          represent Service Chiefs in proceedings before the Defence Force Discipline Appeals Tribunal. However, it is not intended to limit the Director of Military Prosecutions’s ability to brief out the whole or part of a matter intended for determination by the Tribunal or the Director of Military Prosecution’s ability to represent Defence in subsequent appeals;

 

·          do anything incidental or conducive to the performance of any of the above functions. 

 

1.       Proposed subsection (2) provides that the Director of Military Prosecutions also has the additional functions conferred on the Director of Military Prosecutions by or under the Act or any other law of the Commonwealth. Examples of these functions are to prepare and give to the Minister an annual report (section 169B of the Act), to prefer charges (subsection 87(1) of the Act) and direct that a charge not be proceeded with (subsection 103(1) of the Act).

 

2.       Proposed section 188GB sets out the requirements to appear as a prosecutor at a court martial or Defence Force magistrate trial. To appear for the prosecution, a person other than the Director of Military Prosecutions must meet the requirements of subparagraphs (b)(i) or (ii), and have been authorised to appear by the Director of Military Prosecutions. The Director of Military Prosecutions could make standing authorisations or make an authorisation for a specific trial. While generally the Director of Military Prosecutions would authorise someone who has been made available to the Director of Military Prosecutions under proposed section 188GQ, the Director of Military Prosecutions may authorise other persons, including other Defence members.

 

3.       Proposed section 188GC provides for rights of appearance in civil courts. Due to the definition of ‘legal officer’ in subsection 3(1), it only applies to Defence members who are legal practitioners. A person would be assisting the Director of Military Prosecutions when so requested by the Director of Military Prosecutions, and the Director of Military Prosecutions would not have to be appearing in the case him or herself.

 

4.       Proposed section 188GD empowers the Director of Military Prosecutions to give an undertaking to a potential witness in discipline proceedings that any evidence the person may give, and anything derived from that evidence, will not be used in evidence against the person other than for a service offence relating to the falsity of the evidence given by the person. It further empowers the Director of Military Prosecutions to give an undertaking to a person that they will not be prosecuted for a service offence, or for acts or omissions that constitute or may constitute service offences. The undertaking may be made subject to any conditions that the Director of Military Prosecutions considers appropriate.

 

5.       These undertakings granted by the Director of Military Prosecutions are limited actions that may be taken in relation to service offences. This reflects the jurisdictional limits of service discipline law. When considering whether an undertaking is appropriate, the Director of Military Prosecutions would consider the service needs and the requirement to maintain discipline. This item is not intended to affect any other powers to grant immunities or undertakings.

 

6.       Proposed section 188GE empowers the Director of Military Prosecutions to give directions and guidelines in writing to investigating officers and persons involved in the prosecution of service offences. This provision was inserted to ensure that the Director of Military Prosecutions has the appropriate power to ensure that prosecutions are carried out in an effective way and that the standard of investigations and evidence available to prosecutors is of an acceptable standard. Any direction given must be included in a report to the Minister provided for in section 196B. This section is not intended to apply to routine requests for further evidence or lines of investigation in particular cases. Nothing in this section is intended to limit the Director of Military Prosecutions from making routine requests for further evidence or lines of investigation, with such requests not being deemed to be legislative instruments.

 

7.       The note to this section provides that any direction given must be included in the Annual Report of the Director of Military Prosecutions under section 196B of the Act.

 

8.       New Division 2 sets out the provisions for the appointment of the Director of Military Prosecutions. These are based on provisions in other Commonwealth legislation that statutorily establish positions for example, the Director of Public Prosecutions.

 

9.       Proposed section 188GF provides that the appointment of Director of Military Prosecutions is to be made by the Minister, subject to such terms and conditions other than those provided for in the Act as are determined by the Minister and that the office is held on a full time basis.

 

10.     Proposed section 188GG sets out the qualifications that a person is required to have before being appointed as Director of Military Prosecutions. This item recognises that it is essential that the Director of Military Prosecutions is not just an experienced lawyer, but due to the nature of the tasks entrusted to the position, is also an experienced military officer. As remuneration and allowances are set independently, it is envisaged that the Director of Military Prosecutions could be promoted during a period of appointment, or upon being offered re-appointment.

 

11.     Proposed section 188GH provides for the tenure and periods of appointment of the Director of Military Prosecutions. More than one re-appointment may be made, however, the length of the appointments should be such as to ensure proper independence. There is no presumption that the appointment as the Director of Military Prosecutions would be a terminal appointment in the Defence Force hence the maximum period of office is to be no more than 10 years.

 

12.     Proposed section 188GI provides for the process of resignation of the Director of Military Prosecutions, that is, to provide the Minister with a written resignation.

 

13.     Proposed section 188GJ provides that the Director of Military Prosecutions must make an oath or affirmation in accordance with the form in Schedule 4 of the Act before proceeding to discharge the duties of his or her office. The oath or affirmation may be made before the Judge Advocate General, a Deputy Judge Advocate General or the Chief Judge Advocate.

 

14.     Proposed section 188GK provides for the remuneration of the Director of Military Prosecutions which will be determined by the Remuneration Tribunal or as prescribed.

 

15.     Proposed section 188GL provides that the Director of Military Prosecutions has recreation leave entitlements as determined by the Remuneration Tribunal. The Minister may grant further leave of absence on such terms and conditions that the Minister determines.

 

16.     Proposed section 188GM provides that the Director of Military Prosecutions must not engage in legal practice outside the duties of his or her office nor in any outside paid employment without the approval of the Minister. This section applies to performing legal and officer duties inside the Defence Force, but is not intended to prevent the Director of Military Prosecutions undertaking annual military training obligations.

 

17.     Proposed section 188GN provides for the grounds on which the appointment of the Director of Military Prosecutions can be terminated by the Minister. These include, misbehaviour and physical or mental incapacity. However, in certain circumstances, the Minister must terminate the appointment. For example, if the Director of Military Prosecutions becomes bankrupt, is absent from duty for certain periods of time, practices as a legal practitioner outside the duties of his or her office or fails to comply with his or her obligations under proposed section 188GO (to disclose any interest which could cause a conflict with the performance of his or her functions).

 

18.     Proposed section 188GO provides for the requirement that the Director of Military Prosecutions disclose interests if that interest could conflict with the proper performance of the functions of his or her office. These include either a direct or indirect (whether or not pecuniary) interest and notwithstanding that they may have been acquired before or after the appointment.

 

19.     Proposed section 188GP provides that the Minister may appoint a person to act as the Director of Military Prosecutions during a vacancy in the office or when the Director of Military Prosecutions is absent from duty or is absent from Australia. It further provides that anything done by or in relation to a person purporting to act under the item is not invalid merely because the appointment was in some way defective. The item further outlines the conditions for an acting appointment. The person must be a legal practitioner of more than 5 years, be a member of the Permanent Navy, Army or Air Force (or on continuous full time Reserve service) and hold a rank not lower than the rank of Commander, Lieutenant Colonel or Wing Commander.

 

20.     Proposed section 188GQ provides for the allocation of staff to the Director of Military Prosecutions by the Chief of Navy, Chief of Army or Chief of Air Force, and the Secretary of the Department of Defence.

 

21.     Proposed section 188GR provides that the Director of Military Prosecutions may delegate all or any of his or her powers to a member of the Director of Military Prosecutions staff. A broad power of delegation is necessary to ensure the proper functioning of the office across the entire range of Director of Military Prosecutions’s functions. These delegations could be standing or for a restricted period, for example due to absences from the office. Noting that some of the powers of the Director of Military Prosecutions are currently exercised by multiple appointments of various ranks, this broad discretion enables the Director of Military Prosecutions to delegate powers consistent with the experience of the staff allocated and the frequency of exercise of the various powers.

 

Items 108 & 109 Immunities

22.     Item 108 inserts section 193(1A) which provides that the Judge Advocate General has in the performance of his or her duties as the Judge Advocate General the same protection and immunity as a Justice of the High Court. This section is not intended to effect any protections and immunities Judge Advocate General may have enjoyed prior to the amendment being enacted or may continue to enjoy under any other laws.

 

23.     Item 109 provides for an immunity for the Director of Military Prosecutions and the Registrar of Military Justice for actions done or omitted to be done in good faith in the exercise of their duties of office.

 

Item 112 Annual reporting

24.     Item 112 inserts the requirement that the Director of Military Prosecutions prepare and give to the Minister a report relating to the operations of the Director of Military Prosecutions during the year and the content of that report. The operation of the Registrar of Military Justice will be included in the existing Judge Advocate General’s annual report in accordance with subsection 196A(1).

 

Item 113

25.     Item 113 provides for the form of the oath or affirmation to be made and subscribed by the Director of Military Prosecutions and Registrar of Military Justice.

 

Item 114 Transitional arrangements

26.     Item 114 provides for transitional arrangements where a matter has commenced before the amendments take effect (the commencement date). The intent is for any power, function or discretion that was previously exercised by a convening authority to now be exercised by the appropriate new authority (the designated person), or, where necessary, a combination of designated persons. For example, in some cases a function previously performed by a convening authority is now performed by a combination of the Director of Military Prosecutions and the Registrar of Military Justice. In this circumstance, neither of the designated persons can perform the function alone.

 

27.     Item 114 further provides for making new decisions as well as amending previous decisions. For example, if a convening authority has signed a charge sheet before the commencement date, then where under the old law a convening authority could exercise a power or discretion to amend that particular charge sheet, then after the commencement date a designated person may exercise that power or discretion with respect to that charge sheet.

 

28.     ‘Finally dealt with’ is intended to mean the complete exhaustion of all actions that can arise in relation to the matter, including all reviews, petitions, appeals (either under the Defence Force Discipline Appeals Act 1955 or generally) and directions for new trials or other orders or directions.

 

29.     It is intended for a ‘function or power’ to be interpreted broadly, and includes the power to form a view or exercise a discretion.

 

Item 115 Regulations

30.     Item 115 provides that regulations may be made by the Governor General in relation to transitional matters.

 

Schedule 2 - Inspector General of the Australian Defence Force

 

31.     An essential feature of an effective armed Service is the need for discipline which is, and is seen to be, rigorously enforced. Failures in the military justice system, when they occur, not only soon become publicly known, but if not properly dealt with, can quickly result in damage to reputation, morale and ultimately, operational effectiveness. The military justice system must meet its obligations to ensure that Australian Defence Force members are treated fairly and in accordance with the law. It must also be supported by an independent means of dealing with failures that may be expected to occur from time to time in any large complex system.

 

32.     In his Report of an Inquiry into Military Justice in the Australian Defence Force , July 2001, Mr J.C.S Burchett QC recommended that a Military Inspector General be appointed to provide the Chief of the Defence Force  with constant scrutiny of the military justice system, independent of the ordinary chain of command.

 

33.     To give effect to Mr Burchett’s recommendation, an Inspector General of the Australian Defence Force is to be established in the Defence Act 1903 . The role of the Inspector General of the Australian Defence Force is to provide the Chief of the Defence Force with ongoing review of the military justice system, independent of the ordinary military chain of command. This includes both Australian Defence Force discipline and Defence inquiries system.

 

Item 1

34.     Item 1 inserts a definition of “Inspector General ADF” into subsection 4(1) of the Defence Act 1903 (the Act) to mean the Inspector General Australian Defence Force appointed under proposed section 110B.

 

Item 2 Inspector General Australian Defence Force

35.     Item 2 inserts new Part VIIIB which establishes the Inspector General Australian Defence Force.

 

36.     Proposed section 110A outlines the objects of the Part, being to provide a mechanism for internal audit and review of the military justice system which is independent of the ordinary chain of command and an avenue by which failures in the military justice system can be exposed and examined in order to assist in remedying any injustice. This gives effect to Mr Burchett’s intentions encapsulated in his recommendations.

 

37.     Proposed section 110B establishes the Inspector General Australian Defence Force as a statutory position.

 

38.     Proposed section 110C outlines the functions of the Inspector General ADF. These are to-

 

·          inquire into or investigate matters about the military justice system;

·          to conduct performance reviews including internal audits of the military justice system at the times and in the manner the Inspector General ADF considers appropriate;

·          advise on matters concerning the military justice system , including recommendations for improvements;

·          promote military justice values across the Defence Force;

·          do anything incidental or conducive to performing any of these functions.

 

1.       The Inspector General ADF also has functions that are conferred on him or her under any other law of the Commonwealth or as are prescribed under the regulations. In particular, carrying out preliminary assessments as to whether an inquiry or an investigation should be conducted.

 

2.       The note makes it clear that the powers and procedures of the Inspector General ADF in respect of his or her functions may be further provided for in the regulations.

 

3.       Many of the Inspector General ADF functions are associated with the conduct of inquiries and investigations. Proposed section 110D outlines when the Inspector General ADF may conduct such inquiries or an investigation. It may be on his or her own initiative, as directed by the Chief of the Defence Force or by a Service Chief or as requested by any other individual.

 

4.       New Division 2 deals with the administrative arrangements in respect of the Inspector General ADF.

 

113.     For the position of the Inspector General ADF to work successfully, he or she must enjoy the confidence of Chief of the Defence Force and be able to work with Chief of the Defence Force , particularly noting Mr Burchett’s recommendation that Inspector General ADF should be directly responsible to the Chief of the Defence Force .

 

114.     Proposed section 110E therefore provides that the Inspector General ADF is to be appointed by the Minister, but having regard to any recommendations made by the Chief of the Defence Force .

 

115.     The position is to be a full time one and subject to the terms and conditions (other than those provided for under the Act) as are determined by the Minister.

 

116.     Given the environment within which the Inspector General ADF operates, it is essential that he or she has knowledge, understanding and experience about military justice issues and their relevance to the role of the Defence Force. Proposed section 110F makes it clear that a person will not be considered suitable to be appointed as Inspector General unless he or she has this knowledge, experience and understanding.

 

117.     Proposed section 110G provides that the tenure of the Inspector General ADF is to be expressed in the instrument of appointment, but must not exceed 5 years. Re-appointment to the position is also available.

 

118.     Proposed section 110H allows the Inspector General ADF to resign by giving the Minister a written resignation.

 

119.     Proposed section 110I is an example of a standard provision contained in Commonwealth legislation for statutory office holders in respect of remuneration entitlements. That is, the Inspector General ADF remuneration is to be determined by the Remuneration Tribunal or as prescribed. The Inspector General ADF allowances are also prescribed.

 

120.     Proposed section 110J describes the leave entitlement arrangements for the Inspector General ADF. Recreation leave is to be determined by the Remuneration Tribunal. However, for leave other than recreation leave, the Chief of the Defence Force may grant this type of leave on terms and conditions as to remuneration or otherwise that the Chief of the Defence Force determines.

 

121.     Proposed section 110K prohibits the Inspector General ADF from engaging in outside paid employment without the Minister’s consent.

 

122.     Proposed section 110L outlines the circumstances where the Inspector General ADF appointment must be terminated. These include bankruptcy, failure by the Inspector General ADF to disclose a conflict of interest under proposed section 110M or where the Inspector General ADF is absent from duty for a period of time referred to in this clause. The appointment may be terminated on the grounds of misbehaviour or physical or mental incapacity.

 

123.     Proposed section 110M requires the Inspector General ADF to disclose any interest that may conflict with the performance of the functions of his or her office. This extends to financial or other interests.

 

124.     Proposed section 110N deals with acting arrangements during a vacancy in the office or when the Inspector General ADF is absent from duty or from Australia. It further provides that anything done by or in relation to a person purporting to act under the section is not invalid merely because the appointment was in some way defective, the appointment ceased to have effect or the acting arrangements had not arisen or had ceased. The section further outlines the conditions for an acting appointment. The Minister is to have regard to any recommendations made by the Chief of the Defence Force . It will also be a requirement for the person to have knowledge, experience and understanding of military justice issues and their relevance to the role of the Defence Force.

 

125.     Proposed section 110O provides for the staff to be made available to assist the Inspector General ADF. These will be members of the Defence Force made available by a Service Chief, Australian Public Service employees made available by the Secretary or other persons engaged by the Inspector General ADF who have suitable qualifications and experience to perform services for the Inspector General ADF. Such an engagement is to be made on behalf of the Commonwealth and by written agreement.

 

126.     Proposed section 110Q outlines the circumstances where the Inspector General ADF or persons acting under his or her authority are protected from civil actions. This item provides an immunity for loss, damage or injury caused as a result of the performance or exercise in good faith of the Inspector General ADF or persons acting under his or her authority functions, powers or duties.

 

127.     Proposed section 110R provides for the reporting requirements of the Inspector General ADF. It is intended that the Inspector General report to the Chief of the Defence Force as directed by Chief of the Defence Force . A formal Annual Report is not required, as this provision formalises what currently occurs in practice. In any case, the Inspector General ADF contributes to the Defence Annual Report.

 

Item 3 Appointment inquiry officers, inquiry assistants or Assistant Inspectors General of the Australian Defence Force

128.     Item 3 inserts proposed section 110P which enables the Inspector General ADF to appoint inquiry officers, inquiry assistants or Assistant Inspectors General of the Australian Defence Force.

 

Item 4 Delegation of s 110P power

129.     Item 4 inserts proposed section 110S to enable the Inspector General ADF to delegate his or her powers under proposed section 110P to an officer not below the rank of naval captain, colonel or group captain.

 

Item 5 Regulations

130.     Item 5 adds proposed paragraph 124(1)(h) into the Act. Section 124 is the Regulation making power under the Act. New paragraph 124(1)(h) will enable regulations to be made in respect of the procedures, powers and reporting obligations of the Inspector General ADF in respect of his or her functions which include inquiries, investigations and performance reviews. This provision is not intended to in any way limit the power under section 9A of the Act to make Defence Instructions in relation to matters arising under new Part VIIIB.

 

Items 6 & 7 Savings and Transitionals

131.     Items 6 and 7 provide for saving and transitional arrangements following the commencement of the Act. Item 6 continues the operation of Part 7 of the Defence (Inquiry) Regulations 1985 and any inquiry that was being conducted under those Regulations. Part 7 of these Regulations allow the Inspector General ADF to appoint Investigating Officers and Inquiry Assistants to investigate specific matters concerning the military justice system. These Regulations will be an adjunct to Part VIIIB.

 

132.     Item 7 enables Regulations to be made dealing with transitional arrangements.