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

Authoritative Version
Act No. 92 of 2009 as made
An Act relating to military justice, and for related purposes
Administered by: Defence
Originating Bill: Military Justice (Interim Measures) Bill (No. 2) 2009
Registered 24 Sep 2009
Date of Assent 22 Sep 2009
Table of contents.

 

 

 

 

 

 

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

 

No. 92, 2009

 

 

 

 

 

An Act relating to military justice, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Schedule(s)......................................................................................... 2

Schedule 1—Effect of things done by or in relation to the Australian Military Court   3

Part 1—Preliminary                                                                                                        3

Part 2—Things done by the AMC, otherwise than on appeal                  5

Part 3—Things done by the AMC on appeal                                                    9

Part 4—Things done on appeal from the AMC                                             13

Part 5—Decisions of summary authorities made on basis person did not elect to be tried by the AMC                                                                                                                              14

Part 6—Other matters                                                                                                 19

Part 7—Transitional provisions                                                                              22

Division 1—Preliminary                                                                                            22

Division 2—Things purportedly done by the AMC or on appeal from the AMC                22

Division 3—Things done by summary authorities on basis no election to be tried by the AMC      25

 


 

 

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

No. 92, 2009

 

 

 

An Act relating to military justice, and for related purposes

[Assented to 22 September 2009]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Military Justice (Interim Measures) Act (No. 2) 2009.

2  Commencement

                   This Act commences on the day this Act receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Effect of things done by or in relation to the Australian Military Court

Part 1Preliminary

1  Definitions

In this Schedule:

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) Act (No. 1) 2009.

commencement day means the day on which this Act commences.

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.

2  Object and effect of Schedule etc.

(1)       The main object of this Schedule is to maintain the continuity of discipline in the Defence Force.

(2)       The provisions of this Schedule that declare people to have particular rights or liabilities have effect for Defence Force service purposes only.

(3)       If a provision of this Schedule:

                     (a)  would, apart from this subitem, have an application (an invalid application) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            because of which the provision exceeds the Commonwealth’s legislative power; and

                     (b)  also has at least one application (a valid application) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

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

(1)       This item applies if, under an item of this Schedule (the applicable item), the rights and liabilities of a person are declared to be, and always to have been, the same as if certain matters (the assumed matters) specified in the applicable item had been the case.

(2)       Without limiting the effect of the applicable item:

                     (a)  all persons are, by force of this item, declared to be, and always to have been, entitled to act on the basis that other persons had, and have, the rights and liabilities as declared by the applicable item; and

                     (b)  a right or liability that a person is declared to have by the applicable item:

                              (i)  is exercisable or enforceable; and

                             (ii)  is to be regarded as always having been exercisable or enforceable;

                            as if the assumed matters had in fact been the case.

(3)       This item has effect subject to subitem 2(2).


 

Part 2Things done by the AMC, otherwise than on appeal

4  Application of Part

This Part applies to things purportedly done by the AMC, otherwise than under Part IX of the old Defence Force Discipline Act, before the High Court decision date.

Note:       Part IX of the old Defence Force Discipline Act dealt with appeals to the AMC. Appeals to the AMC are dealt with in Part 3 of this Schedule.

5  Effect of punishments and Part IV orders

(1)       This item applies if the AMC purported to:

                     (a)  impose a punishment, other than imprisonment as mentioned in paragraph 68(1)(a) or (b) of the old Defence Force Discipline Act; or

                     (b)  make a Part IV order.

(2)       The rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (a)  the amended Defence Force Discipline Act had been in force on and after the time (the punishment time) when the punishment or order was purportedly imposed or made; and

                     (b)  the punishment or order had instead been properly imposed or made at the punishment time, under that Act as so in force, by a general court martial; and

                     (c)  the following were the case, under Part VIIIA of that Act as so in force, immediately after the punishment time:

                              (i)  a competent reviewing authority had reviewed the punishment or order imposed or made by the general court martial;

                             (ii)  the reviewing authority had approved the punishment or order, or had decided not to quash or revoke the punishment or order;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted; and

                     (d)  if:

                              (i)  the punishment is detention or a fine; and

                             (ii)  the AMC also purported to make an order (the suspension order) under section 78 or 79 of the old Defence Force Discipline Act suspending the whole or part of the punishment;

                            in addition to paragraphs (b) and (c) of this subitem, the general court martial had, immediately after the punishment time, made an order under section 78 or 79 of the amended Defence Force Discipline Act as so in force in the same terms as the suspension order.

(3)       If the punishment is dismissal, and the AMC purported, under subsection 171(1B) of the old Defence Force Discipline Act, to order that the dismissal was to take effect on a specified day, subitem (2) applies as if the general court martial had made an order in the same terms (and had power to make that order).

(4)       The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.

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

(1)       Subject to subitem (2), if the AMC purported to:

                     (a)  acquit a person of a service offence; or

                     (b)  convict a person of a service offence;

the person is not liable to be tried, under the amended Defence Force Discipline Act, for the same offence or for an offence that is substantially the same offence.

(2)       This item does not apply to a purported conviction:

                     (a)  if:

                              (i)  a punishment or Part IV order was purportedly imposed or made by the AMC in respect of the conviction; and

                             (ii)  item 5 does not have effect, for any reason, in relation to the purported punishment or order; or

                     (b)  in relation to which the AMC had not, by the High Court decision date, imposed a punishment or made an order under Part IV of the old Defence Force Discipline Act.

(3)       For the purposes of this item, the purported dismissal of a charge under section 132B or 132D of the old Defence Force Discipline Act is taken to be a purported acquittal by the AMC of the service offence that was the subject of the charge.

(4)       This item does not affect the jurisdiction of a civil court (as defined in the amended Defence Force Discipline Act) to try a charge of a civil court offence (as defined in that Act).

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

(1)       This item applies if (whether before, on or after the High Court decision date) administrative action is or was purportedly taken in relation to a person, for Defence Force service purposes, in reliance on, or by reference to, a purported conviction by the AMC of a person of a service offence.

(2)       For the purposes of subitem (1), administrative action includes (but is not limited to) any of the following actions:

                     (a)  placing a person on an unsuitability report;

                     (b)  giving a person a formal warning;

                     (c)  censuring a person;

                     (d)  changing the employment category of a person;

                     (e)  changing the employment entitlements of a person (including forfeiture of salary or allowances);

                      (f)  removing a security clearance, or changing the security classification, of a person;

                     (g)  denying or delaying the promotion of a person;

                     (h)  revoking a provisional promotion of a person;

                      (i)  removing a person from a posting, or changing the posting of a person;

                      (j)  removing a person from an appointment (including a position of command or authority) associated with a posting, or changing the appointment of the person;

                     (k)  removing a person from a locality, or changing the locality of the person;

                      (l)  reducing the rank or seniority of a person;

                    (m)  terminating the service of a person.

(3)       If this item applies, the administrative action is, by force of this item, declared to be, and always to have been, entitled to be taken (and to have been taken) on the basis of the rights and liabilities as declared by item 5.

(4)       This item does not apply to action purportedly taken for the purpose of executing or enforcing a punishment or Part IV order.


 

Part 3Things done by the AMC on appeal

8  Application of Part

This Part applies to things purportedly done by the AMC, under Part IX of the old Defence Force Discipline Act, before the High Court decision date.

9  Quashing convictions

If the AMC purported to quash a conviction by a summary authority of a person of a service offence, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (a)  the amended Defence Force Discipline Act had been in force on and after the time when the purported quashing occurred; and

                     (b)  the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:

                              (i)  a competent reviewing authority had reviewed the conviction;

                             (ii)  the reviewing authority had quashed the conviction.

Note:       For what happens if the AMC purported to order a new trial, see item 27.

10  Varying or quashing punishments

(1)       If the AMC purported to vary a punishment imposed by a summary authority, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (a)  the amended Defence Force Discipline Act had been in force on and after the time when the purported variation occurred; and

                     (b)  the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:

                              (i)  a competent reviewing authority had reviewed the punishment;

                             (ii)  the punishment, as purportedly varied, had been imposed by the reviewing authority;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.

(2)       If the AMC purported to:

                     (a)  quash a punishment imposed by a summary authority; and

                     (b)  take action (the substituted action) under Part IV of the old Defence Force Discipline Act (as mentioned in paragraph 167(2)(b) of that Act);

the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (c)  the amended Defence Force Discipline Act had been in force on and after the time when the purported quashing occurred; and

                     (d)  the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:

                              (i)  a competent reviewing authority had reviewed the punishment;

                             (ii)  the reviewing authority had quashed the punishment and taken the substituted action;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.

(3)       The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.

11  Varying or revoking Part IV orders

(1)       If the AMC purported to vary a Part IV order made by a summary authority, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (a)  the amended Defence Force Discipline Act had been in force on and after the time when the purported variation occurred; and

                     (b)  the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:

                              (i)  a competent reviewing authority had reviewed the Part IV order;

                             (ii)  the Part IV order, as purportedly varied, had been made by the reviewing authority;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.

(2)       If the AMC purported to:

                     (a)  revoke a Part IV order made by a summary authority; and

                     (b)  take action (the substituted action) under Part IV of the old Defence Force Discipline Act (as mentioned in paragraph 167A(2)(b) of that Act);

the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (c)  the amended Defence Force Discipline Act had been in force on and after the time when the purported revocation occurred; and

                     (d)  the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:

                              (i)  a competent reviewing authority had reviewed the Part IV order;

                             (ii)  the reviewing authority had revoked the Part IV order and taken the substituted action;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.

(3)       The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.

12  Dismissal of appeals and confirmation of punishments etc.

(1)       If the AMC purported to dismiss an appeal against a conviction by a summary authority of a person of a service offence, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (a)  the amended Defence Force Discipline Act had been in force on and after the time when the purported dismissal of the appeal occurred; and

                     (b)  the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:

                              (i)  a competent reviewing authority had reviewed the conviction;

                             (ii)  the reviewing authority had decided not to quash the conviction;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.

(2)       If the AMC purported to confirm a punishment or Part IV order imposed or made by a summary authority, the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if:

                     (a)  the amended Defence Force Discipline Act had been in force on and after the time when the purported confirmation of the punishment or Part IV order occurred; and

                     (b)  the following were the case, under Part VIIIA of that Act as so in force, immediately after that time:

                              (i)  a competent reviewing authority had reviewed the punishment or Part IV order;

                             (ii)  the reviewing authority had approved the punishment or order, or had decided not to quash or revoke the punishment or order;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted.

(3)       The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.


 

Part 4Things done on appeal from the AMC

13  Application of Part

This Part applies to things purportedly done by the DFDAT, under the Defence Force Discipline Appeals Act 1955, before the High Court decision date, on appeal from decisions of the AMC.

14  Effect of things done by the DFDAT on appeal

(1)       If the DFDAT purportedly quashed a conviction, punishment or order purportedly imposed or made by the AMC, Part 2 of this Schedule applies as if the AMC had not purported to impose or make that conviction, punishment or order.

(2)       If the DFDAT purportedly varied a punishment or order purportedly imposed or made by the AMC, Part 2 of this Schedule applies as if the AMC had originally purported to impose or make the punishment or order as so varied.

(3)       If the DFDAT purportedly confirmed a punishment or order purportedly imposed or made by the AMC, Part 2 of this Schedule applies to the punishment or order as purportedly imposed or made by the AMC.


 

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

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

(1)       Subject to subitem (2), this item applies if:

                     (a)  before the High Court decision date, a summary authority purported to impose or make a punishment or Part IV order (the original punishment or order) in respect of the conviction of a person of a service offence in the following circumstances:

                              (i)  the person was required to be given the opportunity to elect to have the charge of the service offence tried by the AMC;

                             (ii)  the summary authority proceeded with the trial of the person on the basis that the person had not elected (or had withdrawn an election) to have the charge tried by the AMC; and

                     (b)  a reviewing authority did not purport to quash or revoke the original punishment or order (except as mentioned in subitem (2)) before the High Court decision date; and

                     (c)  the AMC did not purport to do any of the following under Part IX of the old Defence Force Discipline Act:

                              (i)  quash the conviction;

                             (ii)  quash, vary, revoke or confirm the original punishment or order; and

                     (d)  the original punishment or order is invalid because:

                              (i)  the person was required to be given an opportunity to elect to have the charge of the service offence tried by the AMC; and

                             (ii)  the AMC was not a validly created court.

Note:       If, before the High Court decision date, the AMC purported to quash the conviction, or to quash, vary, revoke or confirm the original punishment or order, Part 3 of this Schedule applies.

(2)       If, before the High Court decision date, a reviewing authority purported to:

                     (a)  quash or revoke the original punishment or order; and

                     (b)  take action (the substituted action) under Part VIIIA of the old Defence Force Discipline Act (as mentioned in subsection 159(2) of that Act);

this item applies as if the summary authority had taken the substituted action, instead of imposing or making the punishment or Part IV order referred to in paragraph (1)(a) of this item.

(3)       If this item applies, the rights and liabilities of all persons are, by force of this item (subject to subitem (4)), declared to be, and always to have been, the same as if:

                     (a)  the amended Defence Force Discipline Act had been in force on and after the time when the opportunity referred to in paragraph (1)(a) was required to be given; and

                     (b)  under that Act as so in force, the person:

                              (i)  had been given an opportunity to make an election to have the charge tried by a court martial or a Defence Force magistrate; and

                             (ii)  had not made such an election; and

                     (c)  the original punishment or order had instead been properly imposed or made by the summary authority, under that Act as so in force, at the time (the punishment time) when the original punishment or order was purportedly imposed or made; and

                     (d)  the following were the case, under Part VIIIA of that Act as so in force, immediately after the punishment time:

                              (i)  a competent reviewing authority had reviewed the punishment or order imposed or made by the summary authority;

                             (ii)  the reviewing authority had approved the punishment or order, or had decided not to quash or revoke the punishment or order;

                            (iii)  any possibility of further review (other than review provided for by Part 7 of this Schedule) had been exhausted; and

                     (e)  if:

                              (i)  the punishment is detention or a fine; and

                             (ii)  the summary authority also purported to make an order (the suspension order) under section 78 or 79 of the old Defence Force Discipline Act suspending the whole or part of the punishment;

                            in addition to paragraphs (c) and (d) of this subitem, the summary authority had, immediately after the punishment time, made an order under section 78 or 79 of the amended Defence Force Discipline Act as so in force in the same terms as the suspension order.

(4)       If:

                     (a)  the original punishment or order was a punishment of a kind that, under section 172 of the old Defence Force Discipline Act, did not take effect unless approved by a reviewing authority; and

                     (b)  the punishment had not been purportedly approved by a reviewing authority before the High Court decision date;

subitem (3) of this item does not have effect in relation to the original punishment or order unless it is approved under Part VIIIA of the amended Defence Force Discipline Act.

Note:       Items 30 and 31 provide for Part VIIIA of the amended Defence Force Discipline Act to apply.

(5)       The rights and liabilities of persons as declared by this item are subject to the outcome of any review provided for by Part 7 of this Schedule.

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

(1)       Subject to subitem (2), this item applies if, before the High Court decision date:

                     (a)  a summary authority purported to try a person for a service offence in the following circumstances:

                              (i)  the person was required to be given the opportunity to elect to have the charge of the service offence tried by the AMC;

                             (ii)  the summary authority proceeded with the trial of the person on the basis that the person had not elected (or had withdrawn an election) to have the charge tried by the AMC; and

                     (b)  either:

                              (i)  the summary authority purported to acquit the person; or

                             (ii)  the summary authority purported to convict the person, and the AMC did not purport to quash the conviction under Part IX of the old Defence Force Discipline Act; and

                     (c)  the purported conviction or acquittal is invalid because:

                              (i)  the person was required to be given an opportunity to elect to have the charge of the service offence tried by the AMC; and

                             (ii)  the AMC was not a validly created court.

(2)       This item does not apply to a purported conviction:

                     (a)  if:

                              (i)  a punishment or Part IV order was purportedly imposed or made by the summary authority in respect of the conviction; and

                             (ii)  item 15 does not have effect, for any reason, in relation to the purported punishment or order; or

                     (b)  in relation to which the summary authority had not, by the High Court decision date, imposed a punishment or made an order under Part IV of the old Defence Force Discipline Act.

(3)       If this item applies, the person is not liable to be tried, under the amended Defence Force Discipline Act, for the same offence or for an offence that is substantially the same offence.

(4)       For the purposes of this item, the purported dismissal of a charge under section 130 of the old Defence Force Discipline Act is taken to be a purported acquittal by a summary authority of the service offence that was the subject of the charge.

(5)       This item does not affect the jurisdiction of a civil court (as defined in the amended Defence Force Discipline Act) to try a charge of a civil court offence (as defined in that Act).

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

If, before the High Court decision date:

                     (a)  a summary authority purported to try a person for a service offence in the following circumstances:

                              (i)  the person was required to be given the opportunity to elect to have the charge of the service offence tried by the AMC;

                             (ii)  the summary authority proceeded with the trial of the person on the basis that the person had not elected (or had withdrawn an election) to have the charge tried by the AMC; and

                     (b)  the summary authority purported to convict the person of the service offence; and

                     (c)  the purported conviction is invalid because:

                              (i)  the person was required to be given an opportunity to elect to have the charge of the service offence tried by the AMC; and

                             (ii)  the AMC was not a validly created court;

then item 7 applies in relation to the purported conviction in the same way as it applies in relation to a purported conviction by the AMC.


 

Part 6Other matters

18  Protection of members of military juries etc.

If, because the AMC was not a validly created court, section 193 of the old Defence Force Discipline Act would not (apart from this item) apply in relation to a person or act referred to in that section, that section is taken to have had the effect it would have had, and to continue to have the effect it would have, if it applied to that person or act.

19  Contempt of the AMC etc.

(1)       If, because the AMC was not a validly created court, either of the following provisions:

                     (a)  section 53 of the old Defence Force Discipline Act;

                     (b)  section 89 of the Defence Act 1903 as in force immediately before the High Court decision date;

would not (apart from this item) apply to conduct that is or was engaged in by a person, that section is taken to have had the effect it would have had, and to continue to have the effect it would have, if it applied to that conduct.

Note:       For example, a former member of a military jury may be liable to be prosecuted for an offence if the member discloses information about the deliberations of the jury.

(2)       Without limiting the generality of subitem (1), that subitem applies to conduct engaged in contrary to an order purportedly made by the AMC (whether under section 140 of the old Defence Force Discipline Act or otherwise):

                     (a)  prohibiting or restricting the publication of a report of, or relating to, the whole or a part of proceedings; or

                     (b)  prohibiting or restricting the publication or disclosure of the identity of a person, or of information that might enable the identification of a person.

20  Effect of Summary Authority Rules

(1)       If the Summary Authority Rules are invalid because the AMC was not a validly created court, those Rules are taken to have, and always to have had, the effect they would have during the relevant period if they had been valid.

(2)       In this item:

relevant period means the period:

                     (a)  starting on 1 October 2007; and

                     (b)  ending immediately before the commencement of the Military Justice (Interim Measures) Act (No. 1) 2009.

Summary Authority Rules means the Summary Authority Rules, as purportedly made, and from time to time amended, by the Chief Military Judge of the AMC under section 149 of the old Defence Force Discipline Act.

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

If:

                     (a)  before the High Court decision date, the AMC purportedly caused a certificate under section 128 of the Evidence Act 1995 to be given to a person; and

                     (b)  the certificate was not validly given because the AMC was not a validly created court;

the certificate is taken always to have had the effect it would have had, and to continue to have the effect it would have, if it had been validly given.

22  Operation of the Privacy Act 1988

If conduct that is or was engaged in would (apart from this item) contravene a provision of the Privacy Act 1988 because the AMC was not a validly created court, the conduct is taken not to contravene, and never to have contravened, that provision.

23  Regulations may deal with other matters

(1)       The Governor‑General may make regulations dealing with the effect and consequences, whether before, on or after the High Court decision date, of any of the following:

                     (a)  things purportedly done, before the High Court decision date, by the AMC;

                     (b)  things purportedly done, before the High Court decision date, by a summary authority in election‑system proceedings;

                     (c)  things purportedly done, before the High Court decision date, by a person or persons in, in relation to, or by reference to:

                              (i)  the AMC; or

                             (ii)  without limiting subparagraph (i)—proceedings purportedly before the AMC or orders or determinations (however described) purportedly made by the AMC; or

                            (iii)  a summary authority dealing with election‑system proceedings; or

                            (iv)  without limiting subparagraph (iii)—orders or determinations (however described) purportedly made by a summary authority in election‑system proceedings.

(2)       Without limiting subitem (1), the regulations may deal with the effect of an order, purportedly made under subsection 176(1) or (2) of the old Defence Force Discipline Act, staying the execution of a punishment.

(3)       For the purpose of this item, election‑system proceedings are a trial (or proceedings related to a trial) in the following circumstances:

                     (a)  a person was required to be given an opportunity to elect to have the charge of a service offence tried by the AMC;

                     (b)  a summary authority purported to proceed with the trial of the charge on the basis that the person had not elected (or had withdrawn an election) to have the charge tried by the AMC.


 

Part 7Transitional provisions

Division 1—Preliminary

24  Meaning of punishment review

(1)       For the purposes of this Part, a punishment review is a review of a punishment or a Part IV order that is declared by a provision of Part 2, 3, 4 or 5 of this Schedule to be a liability of the person.

(2)       The provisions of Part VIIIA of the amended Act apply in relation to a punishment review in the same way (as nearly as possible) as they would apply in relation to:

                     (a)  in a case to which a provision of Division 2 of this Part applies—the review of proceedings of a general court martial that imposed a punishment or made a Part IV order; or

                     (b)  in a case to which a provision of Division 3 of this Part applies—the review of proceedings of a summary authority that imposed a punishment or made a Part IV order.

(3)       To avoid doubt, a punishment review may modify or affect a punishment or Part IV order that is declared by a provision of Part 2, 3, 4 or 5 of this Schedule to be a liability of the person.

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

25  Punishment or Part IV order imposed or made by AMC

(1)       This item applies in relation to a charge of a service offence against a person if, on or before the High Court decision date, the AMC purported to convict the person and:

                     (a)  impose a punishment, other than imprisonment as mentioned in paragraph 68(1)(a) or (b) of the old Defence Force Discipline Act, in respect of the conviction; or

                     (b)  make a Part IV order in respect of the conviction.

(2)       The person may lodge with a competent reviewing authority a petition, for a punishment review, under section 153 of the amended Defence Force Discipline Act.

(3)       The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.

Automatic review of punishments of detention

(4)       Without limiting the right to lodge a petition for a punishment review as provided for by this item, if this item applies in relation to a punishment of detention, a reviewing authority must as soon as practicable on or after the commencement day, undertake a punishment review in relation to that punishment.

26  Appeals on punishments and orders purportedly decided by the AMC

(1)       This item applies in relation to an appeal purportedly made to the AMC against a punishment imposed, or a Part IV order made, by a summary authority in respect of a person’s purported conviction by the summary authority of a service offence if:

                     (a)  the appeal was purportedly lodged on or before the High Court decision date; and

                     (b)  on or before that date, the AMC had purportedly:

                              (i)  confirmed or varied the punishment, or taken action under Part IV of the old Defence Force Discipline Act (as mentioned in paragraph 167(2)(b) of that Act); or

                             (ii)  confirmed or varied the Part IV order, or taken action under Part IV of the old Defence Force Discipline Act (as mentioned in paragraph 167A(2)(b) of that Act).

(2)       The person may lodge with a competent reviewing authority a petition, for a punishment review, under section 153 of the amended Defence Force Discipline Act.

(3)       The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.

Automatic review of punishments of detention

(4)       Without limiting the right to lodge a petition for a punishment review as provided for by this item, if this item applies in relation to a punishment of detention, a reviewing authority must as soon as practicable on or after the commencement day, undertake a punishment review in relation to that punishment.

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

(1)       This item applies in relation to an appeal purportedly made to the AMC against a person’s conviction by a summary authority for a service offence if:

                     (a)  the appeal was purportedly lodged on or before the High Court decision date; and

                     (b)  on or before that date, the AMC had purportedly quashed the conviction and ordered a new trial.

(2)       The charge is taken to be referred to the Director of Military Prosecutions on the commencement day, and the Director of Military Prosecutions may deal with the charge under section 103 of the amended Defence Force Discipline Act.

(3)       To avoid doubt, the person is not deemed to have been acquitted of the offence under section 159 of the amended Defence Force Discipline Act.

28  Appeals to the DFDAT from purported AMC decisions—finalised appeals

(1)       This item applies if:

                     (a)  before the High Court decision date, a person purported to appeal to the DFDAT against a punishment purportedly imposed or a Part IV order purportedly made by the AMC; and

                     (b)  on or before that date, the DFDAT had purportedly confirmed or varied the punishment or Part IV order.

(2)       The person may lodge with a competent reviewing authority a petition, for a punishment review, under section 153 of the amended Defence Force Discipline Act.

(3)       The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.

Automatic review of punishments of detention

(4)       Without limiting the right to lodge a petition for a punishment review as provided for by this item, if this item applies in relation to a punishment of detention, a reviewing authority must, as soon as practicable on or after the commencement day, undertake a punishment review in relation to that punishment.

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

29  Application of Division

This Division applies in relation to the charge of a service offence against a person if, before the commencement day:

                     (a)  the person was required to be given an opportunity to elect to have the charge tried by the AMC; and

                     (b)  a summary authority proceeded with the trial of the charge on the basis that the person had not elected (or had withdrawn an election) to have the charge tried by the AMC.

30  Summary authority proceedings started but not completed before commencement day

(1)       This item applies if:

                     (a)  before the commencement day, the summary authority had commenced dealing with the charge; and

                     (b)  on or before the commencement day:

                              (i)  the proceedings of the summary authority had not been completed; or

                             (ii)  the proceedings of the summary authority had been completed, but no action had been taken by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act in relation to the proceedings of the summary authority.

(2)       If the proceedings of the summary authority had not been completed on or before the commencement day, the proceedings of the summary authority are to continue under the amended Defence Force Discipline Act.

(3)       If:

                     (a)  the proceedings of the summary authority had been completed on or before the commencement day; and

                     (b)  the summary authority:

                              (i)  imposed, or purported to impose, a punishment on the person; or

                             (ii)  made, or purported to make, a Part IV order in relation to the person;

a reviewing authority must, as soon as reasonably practicable on or after the commencement day, undertake a review of the punishment or order under Part VIIIA of the amended Defence Force Discipline Act.

31  Summary authority proceedings completed before commencement day: review proceedings started but not completed

(1)       This item applies if, on or before the commencement day:

                     (a)  the summary authority:

                              (i)  imposed, or purported to impose, a punishment on the person; or

                             (ii)  made, or purported to make, a Part IV order in relation to the person; and

                     (b)  action had commenced in relation to the proceedings of the summary authority by a reviewing authority under Part VIIIA of the old Defence Force Discipline Act, but review under that Part had not been completed.

(2)       A reviewing authority must, as soon as reasonably practicable on or after the commencement day, complete the review under Part VIIIA of the amended Defence Force Discipline Act.

32  Summary authority proceedings completed before commencement day: punishments or Part IV orders to which item 15 applies

(1)       This item applies if:

                     (a)  before the commencement day, the summary authority:

                              (i)  purported to impose a punishment on the person; or

                             (ii)  purported to make a Part IV order in relation to the person; and

                     (b)  item 15 applies in relation to the punishment or order.

Note:       Item 15 applies if the punishment or order is invalid because the AMC was not a validly created court.

(2)       The person may lodge with a competent reviewing authority a petition, for a punishment review, under section 153 of the amended Defence Force Discipline Act.

(3)       The petition must be lodged within the period of 60 days beginning on the commencement day, or within such extended period as the competent reviewing authority allows.

Automatic review of punishments of detention

(4)       Without limiting the right to lodge a petition for a punishment review as provided for by this item, if this item applies in relation to a punishment of detention, a reviewing authority must, as soon as practicable on or after the commencement day, undertake a punishment review in relation to the detention punishment.

 

 

[Minister’s second reading speech made in—

Senate on 9 September 2009

House of Representatives on 14 September 2009]

(168/09)