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Military Justice (Interim Measures) Bill (No. 2) 2009

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2008 - 2009

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

MILITARY JUSTICE (INTERIM MEASURES) BILL (NO. 2) 2009

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Defence  

Senator the Hon John Faulkner)



MILITARY JUSTICE (INTERIM MEASURES) BILL (NO. 2) 2009

 

GENERAL OUTLINE

 

On 26 August 2009, the High Court declared that the Australian Military Court, which had been established under the Defence Force Discipline Act 1982, was invalid. This decision had significant consequences for the administration of discipline in the Australian Defence Force. The main object of this Bill is to maintain the continuity of discipline in the Defence Force in light of the High Court's decision.

 

The principal mechanism by which the Bill seeks to maintain the continuity of discipline within the ADF is by imposing disciplinary sanctions on persons corresponding to punishments imposed by the AMC and, to the extent necessary, summary authorities in the period between the AMC's establishment and the declaration of invalidity by the High Court.

 

As explained below, the Bill does not purport to validate any convictions or punishments imposed by the AMC.  Nor does the Bill purport to convict any person of any offence.  Rather, the Bill, by its own force, purports to impose disciplinary sanctions. The Bill does not purport to impose any liability in relation to imprisonment. Further, consistently with the exclusively disciplinary purpose of its provisions, the Bill is expressed to have effect for service purposes only.

 

The Bill recognises that there may be circumstances in which a person affected by a disciplinary liability imposed by the Bill wishes to contest whether that liability should remain imposed.  The Bill gives affected persons a right to seek review of whether they should remain liable under the Act, and the reviewing authority is given power to discharge persons from such liability. In cases where the disciplinary liability imposed by the Bill relates to detention - a serious disciplinary measure peculiar to the ADF - the Bill requires automatic review by the reviewing authority to determine whether that disciplinary liability should be discharged.

 

Financial Impact Statement

 

The amendments in the Bill will have no additional impact on Commonwealth expenditure or revenue .



NOTES ON CLAUSES

 

Short Title

1.   This clause provides for the short title of the Act to be the Military Justice (Interim Measures) Act (No. 2) 2009.

 

Commencement

2.       Clause 2 provides that the Act will commence on the day it receives the Royal Assent.

 

Schedules

 3.        Clause 3 provides that the items specified in a Schedule are amended or repealed as set out in the applicable items in the Schedule. Any other item in a Schedule has effect according to its terms.

SCHEDULE 1 - Effects of things done by or in relation to the Australian Military Court

5.   Clause 1 provides definitions relevant to the Act. These include:

 

            AMC means the Australian Military Court purportedly established by Division       3 of Part VII of the old Defence Force Discipline Act.

            amended Defence Force Discipline Act means the Defence Force Discipline          Act 1982 as amended by the Military Justice (Interim Measures) Bill (No. 1)    2009.

            DFDAT means the Defence Force Discipline Appeal Tribunal established by         the Defence Force Discipline Appeals Act 1955 .

            High Court decision date means 26 August 2009.

liability includes a duty or obligation.

old Defence Force Discipline Act means the Defence Force Discipline Act             1982 as purportedly in force immediately before the High Court decision date.

Part IV order means a restitution order or a reparation order purportedly made       under Part IV of the old Defence Force Discipline Act.

right includes an interest or status.

 

6.         Clause 2 sets out the object and effect of Schedule 1. It states that the object of the Schedule is to maintain the continuity of discipline in the Defence Force. It also states that the provisions of the Schedule that declare people to have particular rights or liabilities, have effect for Defence Force service purposes only.  

 

For example, this means that in circumstances where a person would be required to disclose a conviction for a criminal offence, he or she does not have to disclose the punishment imposed by this Bill.

 

This clause also provides that if a provision in the Schedule has an invalid application because it exceeds the Commonwealth’s power, but it has one or more valid applications, the provision is intended to have every such valid application.

 7.        This clause also provides that if a provision in the Schedule has an invalid application because it exceeds the Commonwealth’s power, but it has at least one valid application, the provision will not have an invalid application, rather it will reflect the Parliament’s intention that the provisions in this Schedule are to have every valid application.

           

Clause 3 Reliance on, and enforcement of, declared rights etc.

 

8.         This clause deals with the reliance on and enforcement of rights declared by Schedule 1.  It ensures that third parties that have acted on the basis of a punishment purportedly imposed or an order purportedly made by the AMC are entitled, and always were entitled, to act on that basis. 

 

The clause applies where another clause of Schedule 1 declares the rights and liabilities of a person to be, and always to have been, as if certain specified matters had been the case.

 

Without limiting the effect of that other clause, this clause declares that all persons are entitled to act, and have always been entitled to act, on the basis that a particular person had, and always had, the rights and liabilities declared by the other clause.  Any right or liability that a person is declared to have by this clause is, and is to be regarded as always having been, exercisable and enforceable.

 

PART 2 - Things done by the AMC, Otherwise than on appeal

 

Clause 4          Application of Part

 

9.         This clause applies Part 2 of Schedule 1 to the Bill to things purportedly done by the AMC before the High Court decision date, other than on appeal under Part IX of the old DFDA, which is dealt with by Part 3 of Schedule 1.

 

Clause 5          Effect of punishment and Part IV orders

 

10.       This clause applies if the AMC purported to impose a punishment (other than imprisonment) or make a Part IV order.

 

In respect of a punishment purportedly imposed or order purportedly made, the clause declares the rights and liabilities of all persons to be, and always to have been, the same as if the amended DFDA had been in force and the punishment had been imposed by a general court martial and all relevant rights of review under Part VIIIA of the amended DFDA had been exhausted.

 

If the punishment was detention or a fine and it was purportedly suspended, in whole or in part, by the AMC under s 78 or 79 of the old DFDA, then the general court martial is also taken to have made an order under s 78 or 79 of the amended DFDA in the same terms as the AMC.

 

If the AMC ordered a purported punishment of dismissal to take effect on a specified day, then a general court martial is taken to have the power to make such an order and to have made an order in the same terms.

 

The clause provides for a right of review under [transitional provision]. Where the punishment purportedly imposed by the AMC was detention, the review is automatic.  The rights and liabilities declared by the clause are subject to the outcome of any such review.

 

The clause is modelled on the legislative approach upheld in The Queen v Humby; Ex parte Rooney (1973) 129 CLR 131.  The clause does not change the status of the punishments and orders invalidly imposed or made by the AMC, but rather effects a direct legislative alteration of rights and liabilities in the exercise of the legislative power conferred on the Commonwealth Parliament under s 51(vi) of the Constitution.  The purported punishments and orders of the AMC are merely historical facts by reference to which to the clause’s alteration of rights and liabilities is made to occur.

 

The clause relates to the effects of punishments (other than imprisonment, but including detention and fines) and DFDA Part IV orders (restitution and reparation). This item provides that the rights and liabilities of all persons are, by force of the item, the same as if the punishment or order of the AMC had been imposed or made by a properly constituted court martial and confirmed by command review. Where a person has been dismissed from the Defence Force and the AMC has ordered under the old DFDA that the dismissal take effect from a specified day, this clause operates as if a general court martial had made the order in the same terms.

 

Clause 6          Persons not liable to be tried again under the amended Defence Force Discipline Act 

 

11.       To protect a person from further prosecution, this clause, where it applies,  provides that a person purportedly acquitted or convicted by the AMC of a service offence, is not liable to be tried again under the amended DFDA. If the AMC purported to acquit or convict a person of a service offence, to protect a person from further prosecution, the person will not, by operation of this item, be liable to be tried under the amended DFDA for the same or substantially the same offence. Furthermore, a purported dismissal of a charge under sections 132B or 132D of the old DFDA is taken to be a purported acquittal by the AMC of the service offence. This reflects the law in the DFDA that the dismissal of a charge is deemed to be an acquittal of the service offence.

 

The clause does not apply if clause @V15 does not have effect, for any reason (including because the punishment purportedly imposed was imprisonment), in relation to a punishment or order purportedly imposed or made by the AMC.  Nor does the clause apply if a person had been convicted by the AMC, but the AMC had not, by the High Court decision date, imposed a punishment or made an order under Part IV.

 

 

 

 

 

 

Clause 7          Effect of administrative actions taken in relation to person purportedly convicted by the AMC

 

Effect of administrative actions taken in relation to person purportedly convicted by the AMC

 

12.               ‘Administrative action’ for the purposes of this provision, reflects formal disapproval on a temporary or permanent basis. For example, it includes (but is not limited to) placing a person on an unsuitability reports, formal warnings, censures, change of employment category, removal or changing a security classification or clearance, changing the employment conditions of a person (for example, forfeiture of salary), denying or delaying promotion or revocation of provisional promotion, removal from or change to posting, appointment or locality (including removal from position of command or authority), reduction in rank or seniority and termination of service.

 

The term 'administrative action' does not include the execution of punishments imposed by the AMC.

 

13.       This clause declares administrative action taken in relation to a person, in reliance on or by reference to a purported conviction by the AMC of a person of a service offence, as being entitled to be taken by force of this clause.

 

PART 3 - Things done by the AMC on appeal

 

Clause 8          Application of Part

 

14.       This clause applies Part 3 of the Schedule to the Bill to things purportedly done by the AMC before the High Court decision under Part IX of the old DFDA (Appeals).

 

Clause 9          Quashing convictions, clause 10 varying or quashing punishments, clause 11, varying or revoking Part IV orders, clause 12, dismissal of appeals. 

 

15.       Clauses 9 to 12 deal with circumstances where the AMC, on an appeal from a summary authority, has  purported to quash  a conviction, vary, quash or confirm a punishment imposed or purported to vary or revoke a Part IV order originally made by the summary authority.  It also deals with the dismissal of an appeal from a summary authority to the AMC.

 

The clauses provide that, where the AMC purported to do one of these things, the rights and liabilities of persons in respect of which the action was purportedly taken are declared to be, and always to have been, the same as if the amended DFDA had been in force and a competent reviewing authority had reviewed the conviction and taken the relevant action under Part VIIIA of the amended DFDA.

 

16.       Therefore, if the AMC purported to quash or vary a conviction, or quash, vary or confirm a punishment or Part IV order (reparation or restitution), made by a summary authority, or dismissed an appeal, the rights and liabilities of all persons will be as if the conviction, punishment or Part IV order had been quashed, varied or upheld by a competent reviewing authority under Part VIIIA of the amended DFDA.

 

PART 4 - Things done on appeal from the AMC

 

Clause 13         Application of Part

 

17.          This c lause provides for the application of this Part to apply to things purportedly done by the Defence Force Discipline Appeal Tribunal (DFDAT) before the High Court decision date, on appeal from decisions of the AMC.

 

Clause 14        Effect of things done by the DFDAT  

 

18.       This clause provides that decisions of the DFDAT to quash a conviction, punishment or order purportedly made by the AMC or to confirm or vary a punishment or order purportedly made by the AMC. These decisions will be preserved by the operation of the proposed amendments contained in Part 2. As discussed above, the rights and liabilities of persons will be the same as if the amended DFDA, as defined, had been in force at the time of the decisions.

 

PART 5 - Decisions of summary authorities made on basis person did not elect to be tried by the AMC. 

 

Clause 15        Effect of punishment or Part IV order imposed or made by summary authority

 

19.       This clause discusses the effect of the system of election for trial by the AMC. If, before the High Court date, a summary authority offered an election to a person but the person chose to have the summary authority hear the matter, the summary authority continued with the trial and imposed a punishment, and a reviewing authority purported to take certain action as outlined in the clause, the rights and liabilities of the person will be the same as if the amended DFDA had been in force when the opportunity to elect was given, the punishment had been properly imposed and review processes had been undertaken. It is important to realise that this clause only has effect to the extent that the original punishment or order was invalid.  That is, to a significant extent the provision has been included out of an abundance of caution to cover arguable consequences that the invalidity of the AMC might have for proceedings before summary authorities

 

Clause 16        Persons not liable to be tried again under the amended Defence Force Discipline Act

 

20.     This clause provides that a person will not be liable to be tried again in respect of a service offence, in the circumstances outlined in the clause, where an offer of an election to be tried by the AMC has been made, but the person chose instead to proceed with a summary authority trial.

 

 

 

Clause 17        Effect of actions taken in relation to person purportedly convicted by a summary authority

 

21.       This clause operates in the same way as clause 7 discussed above at paragraph 12 (relating to a purported conviction by the AMC), but in respect of a purported conviction by a summary authority.           

 

PART 6 - Other matters

 

Clause 18        Protection of member of military juries

 

22.       To the extent that section 193 of the old DFDA may not have applied in relation to the people or acts referred to in that section, this clause provides that the protection and immunity of members of military juries, the Judge Advocate General, etc. under section 193 of the old DFDA always had effect, and continues to have effect it would have, if it applied in relation to those people or acts.

 

Clause 19        Contempt of the AMC etc.

 

23.       This clause preserves the effect of section 53 of the old DFDA and section 89 of the Defence Act 1903 in respect of contempt of the AMC.

 

Clause 20        Effect of Summary Authority Rules

 

24.       To the extent of any invalidity, this clause declares that the Summary Authority Rules made under section 149 of the old DFDA are taken to have, and always to have had, the effect they would have, had they been valid .

 

Clause 21        Effect of certificates issued by the AMC under section 128 of the Evidence Act 1995

 

25.       This clause declares as valid the effect of certificates issued by the AMC to a person under section 128 of the Evidence Act 1995 . Section 128 relates to the privilege in respect of self-incrimination in other proceedings.

 

Clause 22        Operation of the Privacy Act 1988 

 

26.       This clause provides where conduct is, or was engaged in, and that conduct would have contravened a provision of the Privacy Act 1988 because the AMC was not a validly created court, such conduct taken to have had the effect it would have had, and continues to have the effect it would have, as if the conduct had not contravened that the Privacy Act 1988 .

 

Clause 23        Regulations may deal with other matters

 

27.               This clause provides a broad regulation making power to address matters in relation to the effects and consequences of things purportedly done before the High Court decision date.

 

 

Part 7 - Transitional provisions

 

Division 1 - Preliminary

 

Clause 24  -  Meaning of Punishment review

 

28.       This clause explains what a punishment review’ means for the purposes of Part 7 of Schedule 1 of the Bill.  It defines ‘punishment review’ to be a review of a punishment imposed by Part 2, 3, 4 or 5 of Schedule 1.  Accordingly, apart from clauses 30 and 31, a review is only available under this Part where a purported punishment was invalid and, by operation of this Bill, was declared to be a liability of a person.

 

Part VIIIA of the amended DFDA applies as nearly as possible to a punishment review as it would in relation to a review of proceedings of a general court martial (in respect of Division 2 of Part 7) or a review of proceedings of a summary authority (in respect of Division 3 of Part 7).

 

The clause makes it clear that the outcome of a punishment review may modify or affect a punishment or Part IV order that is declared by Part 2, 3, 4 or 5 of Schedule 1 to be a liability of a person.

 

The clause also clarifies the operation of clause 15(4) in relation to clause 30 and 31 of Part 7.

 

Division 2 - Things purportedly done by the AMC or on appeal from the AMC

 

Clause 25 - Punishment or Part IV order imposed or made by the AMC

 

29.  T his clause explains a person’s options where the AMC purported to convict a person and impose a punishment or Part IV order. A person may lodge a petition with a competent reviewing authority under the amended DFDA for a review of the punishment, within 60 days from the commencement day. If the punishment was of detention, the reviewing authority must undertake the review as soon as practicable.

 

Clause 26 - Appeals on punishments and orders purportedly decided by the AMC

 

30.     This clause explains the process to be followed under the amended Defence Force Discipline Act in relation to appeals made to the AMC against a punishment or order made by a summary authority under old Defence Force Discipline Act.  A person may lodge a petition with a competent reviewing authority under the amended DFDA for a review of the punishment, within 60 days from the commencement day. If the punishment was of detention, the reviewing authority must undertake the review as soon as practicable.

 

Clause 27 - Appeals to the AMC on convictions - purported order for a new trial

 

31.  This clause explains the process to be followed under the amended Defence Force Discipline Act where following an appeal made to the AMC in relation a person’s conviction by a summary authority for a service offence under the old Defence Force Discipline Act, and the AMC quashed the conviction and ordered a new trial.

 

Clause 28 - Appeals to the DFDAT from purported AMC decisions - finalised appeals

 

32.     This clause explains the process to be followed under the amended Defence Force Discipline Act in relation to appeals made to the DFDAT from a punishment or order imposed by the AMC, and the DFDAT confirmed or varied the punishment or order.

 

Division 3 - Things purportedly done by summary authorities on the basis of no election to be tried by the AMC

 

Clause 29 -  Application provision .

 

Clause 30 - Summary authority proceedings started but not completed before the commencement day.

 

33.       This clause explains the process to be followed in respect of summary proceedings started, but not completed before the commencement day.

 

Clause 31 - Summary authority proceedings completed before the commencement day: review of proceedings started but not completed

 

34.       This clause explains the process to be followed in respect of summary authority proceedings completed before the commencement day where a review of the proceedings had started but had not been completed.

 

Clause 32 - Summary authority proceedings completed before the commencement day: review proceedings also completed.

 

35.       This clause explains the process to be followed under the amended Defence Force Discipline Act in relation to a charge of a service offence where a summary authority purported to impose a punishment or order under the old Defence Force Discipline Act and a review of proceedings had been completed on or before commencement day under the old Defence Force Discipline Act.