Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Defence Force Discipline Act 1982 and other laws, and to deal with transitional matters, in connection with the Military Court of Australia Act 2012, and for other purposes
Administered by: Attorney-General's
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 21 Jun 2012
Introduced HR 21 Jun 2012
Table of contents.

2010‑2011‑2012

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

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

 

No.      , 2012

 

(Attorney‑General)

 

 

 

A Bill for an Act to amend the Defence Force Discipline Act 1982 and other laws, and to deal with transitional matters, in connection with the Military Court of Australia Act 2012, and for other purposes

  

  


Contents

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

2............ Commencement................................................................................... 1

3............ Schedule(s)......................................................................................... 6

Schedule 1—Amendment of the Defence Force Discipline Act 1982     7

Part 1—Main amendments                                                                                         7

Defence Force Discipline Act 1982                                                                         7

Part 2—Amendment of offences                                                                        103

Defence Force Discipline Act 1982                                                                     103

Part 3—Other amendment                                                                                      106

Defence Force Discipline Act 1982                                                                     106

Schedule 2—Amendments of other Defence legislation                             107

Defence Act 1903                                                                                                     107

Defence Force Retirement and Death Benefits Act 1973                                 111

Schedule 3—Amendments of other Acts                                                             112

Part 1—Main amendments                                                                                     112

Acts Interpretation Act 1901                                                                                 112

Administrative Decisions (Judicial Review) Act 1977                                     112

Age Discrimination Act 2004                                                                                113

Australian Crime Commission Act 2002                                                             113

Australian Security Intelligence Organisation Act 1979                                113

Crimes Act 1914                                                                                                       113

Federal Court of Australia Act 1976                                                                   114

Federal Magistrates Act 1999                                                                              115

Federal Proceedings (Costs) Act 1981                                                                115

Geneva Conventions Act 1957                                                                              116

Judges (Long Leave Payments) Act 1979                                                            116

Judges’ Pensions Act 1968                                                                                    116

Judiciary Act 1903                                                                                                  116

Legislative Instruments Act 2003                                                                         118

Military Court of Australia Act 2012                                                                  119

National Security Information (Criminal and Civil Proceedings) Act 2004 119

Trans‑Tasman Proceedings Act 2010                                                                  120

Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010        120

Part 2—Contingent amendments                                                                        121

Division 1—Amendments relating to judicial misbehaviour and incapacity 121

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012               121

Division 2—Amendments relating to judicial complaints                                121

Freedom of Information Act 1982                                                                        121

Military Court of Australia Act 2012                                                                  122

Division 3—Amendments relating to suppression and non‑publication orders 125

Australian Crime Commission Act 2002                                                             125

Military Court of Australia Act 2012                                                                  126

Schedule 4—Repeal                                                                                                          133

Defence Force Discipline Appeals Act 1955                                                      133

Schedule 5—Application, saving and transitional provisions                 134

Part 1—Definitions                                                                                                    134

Part 2—Proceedings in respect of service offences                                   136

Part 3—Office‑holders                                                                                             144

Part 4—Abolition of Defence Force Discipline Appeal Tribunal       149

Part 5—Other provisions                                                                                         153

Part 6—Regulations                                                                                                   157

 


A Bill for an Act to amend the Defence Force Discipline Act 1982 and other laws, and to deal with transitional matters, in connection with the Military Court of Australia Act 2012, and for other purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Military Court of Australia (Transitional Provisions and Consequential Amendments) Act 2012.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1, Part 1

A single day to be fixed by Proclamation.

However, if the provision(s) do not commence within the period of 10 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

3.  Schedule 1, Part 2

The 28th day after this Act receives the Royal Assent.

 

4.  Schedule 1, Part 3

The later of:

(a) immediately after the commencement of the provision(s) covered by table item 2; and

(b) immediately after the commencement of item 1 of Schedule 2 to the Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

5.  Schedule 2, items 1 to 5

At the same time as the provision(s) covered by table item 2.

 

6.  Schedule 2, items 6 and 7

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

7.  Schedule 2, items 8 to 15

At the same time as the provision(s) covered by table item 2.

 

8.  Schedule 2, item 16

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

9.  Schedule 2, item 17

At the same time as the provision(s) covered by table item 2.

 

10.  Schedule 3, items 1 to 3

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

11.  Schedule 3, item 4

At the same time as the provision(s) covered by table item 2.

 

12.  Schedule 3, item 5

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

13.  Schedule 3, item 6

At the same time as the provision(s) covered by table item 2.

 

14.  Schedule 3, items 7 to 10

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

15.  Schedule 3, item 11

At the same time as the provision(s) covered by table item 2.

 

16.  Schedule 3, items 12 to 22

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

17.  Schedule 3, items 23 to 28

At the same time as the provision(s) covered by table item 2.

 

18.  Schedule 3, items 29 to 32

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

19.  Schedule 3, items 33 to 36

At the same time as the provision(s) covered by table item 2.

 

20.  Schedule 3, item 37

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

21.  Schedule 3, items 38 to 40

The later of:

(a) immediately after the commencement of section 3 of the Military Court of Australia Act 2012; and

(b) immediately after the commencement of item 1 of Schedule 2 to the Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

22.  Schedule 3, items 41 to 45

At the same time as the provision(s) covered by table item 2.

 

23.  Schedule 3, item 46

The later of:

(a) immediately after the commencement of the provision(s) covered by table item 2; and

(b) immediately after the commencement of section 109 of the Trans‑Tasman Proceedings Act 2010.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

24.  Schedule 3, items 47 and 48

Immediately before the commencement of item 1 of Schedule 2 to the Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010.

However, the provision(s) do not commence at all if item 1 of Schedule 2 to the Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010 commences before the commencement of the provision(s) covered by table item 2.

 

25.  Schedule 3, Part 2, Division 1

The later of:

(a) immediately after the commencement of section 3 of the Military Court of Australia Act 2012; and

(b) immediately after the commencement of section 3 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

26.  Schedule 3, Part 2, Division 2

The later of:

(a) immediately after the commencement of section 3 of the Military Court of Australia Act 2012; and

(b) immediately after the commencement of Schedule 1 to the Courts Legislation Amendment (Judicial Complaints) Act 2012.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

27.  Schedule 3, Part 2, Division 3

The later of:

(a) immediately after the commencement of section 3 of the Military Court of Australia Act 2012; and

(b) immediately after the commencement of Schedule 2 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

 

28.  Schedule 4

At the same time as the provision(s) covered by table item 2.

 

29.  Schedule 5, items 1 to 33

At the same time as the provision(s) covered by table item 2.

 

30.  Schedule 5, item 34

The 28th day after this Act receives the Royal Assent.

 

31.  Schedule 5, item 35

At the same time as section 3 of the Military Court of Australia Act 2012 commences.

 

32.  Schedule 5, item 36

The day this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

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 1Amendment of the Defence Force Discipline Act 1982

Part 1Main amendments

Defence Force Discipline Act 1982

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

Repeal the subparagraph, substitute:

                              (i)  the convening superior authority for the court martial; or

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

Repeal the subparagraph, substitute:

                              (i)  the superior authority who referred the charge to which the proceedings relate to the Defence Force magistrate; or

                            (ia)  if that superior authority is replaced by another superior authority—the other superior authority; or

3  Subsection 3(1) (at the end of the definition of authorized officer)

Add “or has effect”.

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

Add:

Note:          The expression “authorized officer” has effect in sections 90, 101X and 101Y because an authorized officer is an issuing officer for the purposes of those sections.

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

Repeal the definition.

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

Omit “in a civil court”, substitute “in respect of a civil court offence”.

7  Subsection 3(1)

Insert:

convening superior authority, for a court martial, means:

                     (a)  the superior authority who convened the court martial; or

                     (b)  if that superior authority is replaced by another superior authority—the other superior authority.

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

Omit “Defence Force Discipline Appeal Tribunal”, substitute “Military Court”.

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

Omit “section 149A”, substitute “clause 46 of Schedule 3B”.

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

Repeal the definition.

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

Omit “section 127”, substitute “clause 24 of Schedule 3B”.

12  Subsection 3(1)

Insert:

Director of Defence Counsel Services has the same meaning as in the Defence Act 1903.

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

Repeal the definition.

14  Subsection 3(1)

Insert:

issuing officer means:

                     (a)  an authorized officer; or

                     (b)  a Judge, or a Federal Magistrate, of the Military Court.

15  Subsection 3(1)

Insert:

mental impairment has the same meaning as in section 7.3 of the Criminal Code.

16  Subsection 3(1)

Insert:

Military Court means the Military Court of Australia created by the Military Court Act.

17  Subsection 3(1)

Insert:

Military Court Act means the Military Court of Australia Act 2012.

18  Subsection 3(1)

Insert:

Military Court Rules has the same meaning as in the Military Court Act.

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

Repeal the definition.

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

Omit “on the ground of unsoundness of mind”, substitute “under Schedule 3B, because of mental impairment”.

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

Add:

Note:          See subclause 35(1) of Schedule 3B.

22  Subsection 3(1)

Insert:

prescribed acquitted person means a person who has been acquitted of a service offence, by a court martial or a Defence Force magistrate under Schedule 3B, because of mental impairment.

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

Repeal the definition.

24  Subsection 3(1) (definition of Registrar)

Repeal the definition.

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

Repeal the definition.

26  Subsection 3(1) (subparagraph (b)(ii) of the definition of service offence)

Omit “civilian; or”, substitute “civilian.”.

27  Subsection 3(1) (paragraph (c) of the definition of service offence)

Repeal the paragraph.

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

Add:

Note:          A service offence is an offence against a law of the Commonwealth but is not an indictable offence: see section 3A.

29  Subsection 3(1)

Insert:

unfit to be tried includes unfit to plead.

30  Subsection 3(15)

Repeal the subsection.

31  After section 3

Insert:

3A  Character of service offences

             (1)  For the purposes of any law of the Commonwealth other than this Act or the regulations, a service offence is an offence against a law of the Commonwealth.

             (2)  A service offence is not an indictable offence.

32  After paragraph 5A(a)

Insert:

                    (aa)  referring a charge or case to a Defence Force magistrate if directed to do so by the Director of Military Prosecutions under subparagraph 103C(2)(c)(i) or 103E(2)(c)(i) or paragraph 31(4)(c) of Schedule 3B; and

                   (ab)  convening a court martial if directed to do so by the Director of Military Prosecutions under subparagraph 103C(2)(c)(ii) or 103E(2)(c)(ii) or subclause 19(6) or paragraph 31(4)(d) of Schedule 3B; and

33  After section 6

Insert:

6A  Chaplains—notional rank

                   For the purposes of this Act, the regulations and the Military Court Act, a member of the Defence Force who is a chaplain referred to in column 1 of an item in the following table is taken to have the rank referred to in column 2 of that item.

 

Item

Column 1

Chaplain

Column 2

Notional rank

1

Chaplain in the Navy with less than 4 years service in the Defence Force as a Chaplain

Lieutenant in the Navy

2

Chaplain 4th Class in the Army

Captain in the Army

3

Chaplain in the Air Force with less than 4 years service in the Defence Force as a Chaplain

Flight Lieutenant

4

Chaplain in the Navy with at least 4 years service, but less than 14 years service, in the Defence Force as a Chaplain

Lieutenant Commander

5

Chaplain 3rd Class in the Army

Major

6

Chaplain in the Air Force with at least 4 years service, but less than 14 years service, in the Defence Force as a Chaplain

Squadron Leader

7

Chaplain in the Navy with at least 14 years service, but less than 20 years service, in the Defence Force as a Chaplain

Commander

8

Chaplain 2nd Class in the Army

Lieutenant‑Colonel

9

Chaplain in the Air Force with at least 14 years service, but less than 20 years service, in the Defence Force as a Chaplain

Wing Commander

10

Chaplain in the Navy with at least 20 years service in the Defence Force as a Chaplain

Captain in the Navy

11

Chaplain 1st Class in the Army

Colonel

12

Chaplain in the Air Force with at least 20 years service in the Defence Force as a Chaplain

Group Captain

13

Principal Naval Chaplain

Commodore

14

Principal Chaplain in the Army

Brigadier

15

Principal Air Chaplain

Air Commodore

 

34  Subsection 7(1)

Omit “applies”, substitute “and the Military Court Act (including the regulations and the Military Court Rules) apply”.

35  Section 10

Omit “, other than old system offences”.

36  Subsection 11(4)

Repeal the subsection.

37  Subsection 63(1)

Omit “proceedings under this Act shall not be instituted”, insert “proceedings must not be instituted in the Military Court or a service tribunal”.

38  Section 65

Repeal the section.

39  Subsection 66(1)

After “particular conviction”, insert “by a service tribunal”.

40  Subsection 67(1)

After “conviction”, insert “by a court martial or a Defence Force magistrate”.

41  Subsection 67(2)

After “conviction”, insert “by a summary authority”.

42  Paragraph 70(1)(a)

After “civil courts”, insert “in relation to civil court offences”.

43  Paragraph 74(2)(b)

After “prescribed punishment” (first occurring), insert “imposed by a service tribunal or the Military Court”.

44  Paragraph 74(2)(c)

After “prescribed punishment” (first occurring), insert “imposed by a service tribunal”.

45  Paragraph 74(4)(b)

After “prescribed punishment” (first occurring), insert “imposed by a service tribunal or the Military Court”.

46  Paragraph 74(4)(c)

After “prescribed punishment” (first occurring), insert “imposed by a service tribunal”.

47  Paragraph 74(4A)(a)

After “prescribed punishment” (first occurring), insert “imposed by a service tribunal”.

48  Paragraph 74(4B)(a)

After “prescribed punishment” (first occurring), insert “imposed by a service tribunal”.

49  Paragraph 74(6)(a)

After “detention”, insert “imposed by a service tribunal or the Military Court”.

50  After subsection 76(1)

Insert:

          (1A)  If:

                     (a)  a person has, in accordance with subsection 75(2), given an undertaking to a summary authority (the first summary authority) that he or she will be of good behaviour for a period of 12 months; and

                     (b)  the Military Court convicts the person of a service offence that was committed during that period;

a summary authority of the same kind as the first summary authority may, subject to subsection (3) and if it is satisfied that, because of the person’s commission of that service offence, the person has failed to be of good behaviour, take action under this Part in relation to the person for the service offence in relation to which the undertaking was given.

51  Subsection 76(2)

Omit “subsection (1), shall”, insert “subsection (1) or (1A), must”.

52  Paragraph 77(3)(c)

After “service tribunal”, insert “or the Military Court”.

53  Subsection 80(1)

Omit “is suspended”, substitute “has been suspended under this Act”.

54  Paragraph 81(1)(a)

After “imposed”, insert “by a service tribunal”.

55  Subsection 81(2)

After “in part”, insert “under this Act”.

56  Subsection 81(3)

After “in part”, insert “under this Act”.

57  Section 82

Repeal the section, substitute:

82  Remission of punishment of detention on imprisonment

             (1)  If a service tribunal imposes a punishment of imprisonment on a convicted person who is already subject to a punishment of detention, that punishment of detention, or such part of that punishment of detention as has not been served, is remitted.

             (2)  Subsection (1) applies:

                     (a)  whether the punishment of detention was imposed by a service tribunal or by the Military Court; and

                     (b)  whether or not that punishment, or a part of that punishment, has been suspended.

58  Section 87 (heading)

Repeal the heading, substitute:

87  Power to charge person with service offence and issue summons, etc.

59  Subsections 87(1) and (1A)

Repeal the subsections, substitute:

             (1)  If the Director of Military Prosecutions or an authorised member of the Defence Force believes, on reasonable grounds, that a person has committed a service offence, the Director of Military Prosecutions or the authorised member (as the case may be) may:

                     (a)  if the person is a defence member:

                              (i)  charge the defence member with the service offence; and

                             (ii)  cause a copy of the charge to be given to the defence member; and

                            (iii)  order the defence member to appear before a commanding officer or a subordinate summary authority at a specified time and place to be dealt with in accordance with section 110 or 111, unless the defence member makes an election under Division 1 of Part VII in relation to the charge before that time; or

                     (b)  whether or not the person is a defence member—cause to be prepared a summons directed to the person that:

                              (i)  specifies the service offence that the person is alleged to have committed; and

                             (ii)  requires the person to appear before a commanding officer at a time and place specified in the summons to be dealt with in accordance with section 110, unless the person makes an election under Division 1 of Part VII in relation to the charge before that time.

Note:          Division 1 of Part VII provides for an accused person to elect to have a charge against the person tried by the Military Court.

          (1A)  If the Director of Military Prosecutions believes, on reasonable grounds, that a person has committed a service offence, the Director of Military Prosecutions may, instead of acting under paragraph (1)(a) or (b):

                     (a)  charge the person with the service offence; and

                     (b)  cause a copy of the charge to be given to the person; and

                     (c)  either:

                              (i)  refer the charge to a superior summary authority who has jurisdiction under section 106, or a commanding officer who has jurisdiction under section 107, to try the charge; or

                             (ii)  subject to subsection (1B), institute a proceeding in respect of the charge in the Military Court.

          (1B)  The Director of Military Prosecutions must not institute a proceeding in respect of a charge of a custodial offence in the Military Court.

Note:          The Military Court does not have jurisdiction to try a charge of a custodial offence: see subsection 63(2) of the Military Court Act.

60  Subsection 87(6)

Repeal the subsection, substitute:

             (6)  A proceeding must not be instituted against a person in respect of a service offence except as provided by this Act or the Military Court Act.

             (7)  In this section:

authorised member of the Defence Force means a member of the Defence Force, or a member of the Defence Force included in a class of members of the Defence Force, authorised, in writing, by a commanding officer for the purposes of this section.

61  After section 87

Insert:

87A  Notice of right to elect to have charge tried by the Military Court

             (1)  The Director of Military Prosecutions or an authorised member of the Defence Force must notify a person who has been charged with a service offence that the person may elect to have the charge tried by the Military Court.

Note:          Division 1 of Part VII deals with how to make an election to have a charge tried by the Military Court.

             (2)  The notice:

                     (a)  must be in writing; and

                     (b)  must also inform the accused person of the following:

                              (i)  the period within which an election may be made;

                             (ii)  the right to obtain legal advice in relation to an election;

                            (iii)  how an election may be made;

                            (iv)  the right to withdraw an election.

             (3)  In this section:

authorised member of the Defence Force means a person who is an authorised member of the Defence Force for the purposes of section 87.

service offence does not include:

                     (a)  a prescribed offence (within the meaning of section 104); or

                     (b)  a custodial offence.

62  Subsection 88(1)

Omit “or the Registrar”.

63  Subsection 88(1A)

Repeal the subsection.

64  Section 90

Omit “authorized officer” (wherever occurring), substitute “issuing officer”.

65  Subsections 95(3) to 95(9)

Repeal the subsections, substitute:

             (3)  If a person (the accused person) is charged with a service offence under subsection (2), the commanding officer must, as soon as practicable:

                     (a)  cause a copy of the charge to be given to the person; and

                     (b)  either:

                              (i)  cause proceedings to be commenced to deal with the charge; or

                             (ii)  refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103.

             (4)  If the commanding officer does not comply with subparagraph (3)(b)(i) or (ii) within 48 hours after the accused person has been delivered into the custody of the commanding officer, the commanding officer must, at the end of that period, report, in writing, to a superior authority and the Director of Military Prosecutions his or her reasons for failing to so comply.

             (5)  If:

                     (a)  the accused person makes an election under Division 1 of Part VII to have the charge against the person tried by the Military Court; and

                     (b)  the election is made before the commanding officer has complied with subparagraph (3)(b)(i) or (ii);

the commanding officer:

                     (c)  must not cause proceedings to be commenced to deal with the charge; and

                     (d)  must refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103A.

             (6)  If the accused person remains in the custody of the commanding officer for 8 days or more without proceedings being commenced to deal with the charge against the person, the commanding officer must:

                     (a)  at the end of the first 8‑day period of such custody; and

                     (b)  at the end of each subsequent 8‑day period of such custody;

report, in writing, to a superior authority and the Director of Military Prosecutions the reasons why proceedings have not been commenced to deal with the charge.

Note:          The commanding officer must make a report under this section in relation to a person who remains in the custody of the commanding officer for 8 days or more even if the commanding officer is not required to cause proceedings to be commenced to deal with the charge against the person.

             (7)  If, due to the exigencies of service, it is not reasonably practicable for the commanding officer to make a report in accordance with subsection (6) on the date the report is due, the commanding officer must:

                     (a)  make the report as soon as it becomes reasonably practicable to do so; and

                     (b)  state in the report why it was not reasonably practicable to report on the due date.

             (8)  If the accused person remains in the custody of the commanding officer for 30 days or more without proceedings being commenced to deal with the charge against the person, the superior authority to whom a report under subsection (6) or (7) has been made must:

                     (a)  at the end of the first 30‑day period of such custody; and

                     (b)  at the end of each subsequent 30‑day period of such custody;

notify the Director of Military Prosecutions and the Chief of the Defence Force or a service chief or an authorized officer of the reasons why proceedings have not been commenced to deal with the charge.

             (9)  On receiving a notification under subsection (8), the Chief of the Defence Force, the service chief or the authorized officer (as the case may be) must order the release of the accused person from custody unless this is not reasonably practicable due to the exigencies of service.

66  Subsection 96(5)

Repeal the subsection.

67  Subsection 101F(2)

Omit “Chief of the Defence Force shall”, substitute “Director of Defence Counsel Services must”.

68  Subsection 101F(2)

Omit “Chief of the Defence Force thinks”, substitute “Director thinks”.

69  Subsection 101F(2A)

Repeal the subsection.

70  Section 101X

Omit “authorized officer” (wherever occurring), substitute “issuing officer”.

71  Section 101Y

Omit “authorized officer” (wherever occurring), substitute “issuing officer”.

72  Part VII (heading)

Repeal the heading, substitute:

Part VIIPre‑trial matters

73  Division 1 of Part VII

Repeal the Division, substitute:

Division 1Election by accused person for trial by Military Court

102  Application

                   This Division does not apply in relation to a charge of:

                     (a)  a prescribed offence (within the meaning of section 104); or

                     (b)  a custodial offence.

Note 1:       A summary authority does not have jurisdiction to try a charge of a prescribed offence: see sections 106, 107 and 108.

Note 2:       The Military Court does not have jurisdiction to try a charge of a custodial offence: see subsection 63(2) of the Military Court Act.

102A  Accused person may elect to have charge tried by the Military Court

Right to make an election

             (1)  An accused person may, in accordance with subsection (3), elect to have a charge against the person tried by the Military Court.

             (2)  Subsection (1) does not apply if:

                     (a)  the Director of Military Prosecutions has instituted a proceeding in respect of the charge in the Military Court; and

                     (b)  the proceeding has not been discontinued.

Procedure for making an election

             (3)  An election under subsection (1) must be made by notifying the Director of Military Prosecutions in writing.

Note:          The Director of Military Prosecutions may direct that the charge be not proceeded with or institute a proceeding in respect of the charge in the Military Court: see section 103A.

Election may relate to 2 or more charges

             (4)  If:

                     (a)  an accused person is charged with 2 or more service offences; and

                     (b)  the charges arise from the same facts or circumstances; and

                     (c)  the accused person makes an election under subsection (1) in relation to one or more of the charges;

the election is taken to relate to all the charges.

Period within which election may be made

             (5)  An accused person may make an election under subsection (1) in relation to a charge at any time:

                     (a)  after the person is charged with the service offence and before the person is required to enter a plea to the charge; or

                     (b)  if the person has been tried for the service offence by a summary authority and a reviewing authority has, under section 160, ordered a new trial of the person for the service offence—after the person is given written notice of the review and before the person is required to enter a plea to the charge at the new trial.

             (6)  The accused person must not be required to enter a plea to the charge:

                     (a)  within the first 24 hours after the person is charged; or

                     (b)  if paragraph (5)(b) applies—within the first 24 hours after the person is given written notice of the review referred to in that paragraph.

Legal advice

             (7)  An accused person must be given an opportunity to obtain legal advice in relation to making an election under subsection (1) if a legal officer is reasonably available to give such advice.

102B  Withdrawal of election to have charge tried by the Military Court

                   If:

                     (a)  an accused person has made an election under subsection 102A(1) to have a charge against the person tried by the Military Court; and

                     (b)  the Director of Military Prosecutions has not instituted a proceeding in respect of the charge in the Military Court;

the accused person may withdraw the election by written notice to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103A.

Division 2Powers of the Director of Military Prosecutions

103  Charges referred to the Director of Military Prosecutions—general

             (1)  This section applies in relation to a charge that is referred to the Director of Military Prosecutions under any of the following provisions:

                     (a)  subparagraph 95(3)(b)(ii);

                     (b)  subsection 105A(2);

                     (c)  paragraph 109(b);

                     (d)  paragraph 110(1)(d);

                     (e)  subsection 129D(2);

                      (f)  subsection 130(5);

                     (g)  section 131A;

                     (h)  subsection 141(8);

                      (i)  section 145 or 146;

                      (j)  subsection 158A(1);

                     (k)  subsection 164(3);

                      (l)  clause 34 of Schedule 3B.

             (2)  The Director of Military Prosecutions may:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  subject to subsection (3), refer the charge to:

                              (i)  a superior summary authority who has jurisdiction under section 106 to try the charge; or

                             (ii)  a commanding officer who has jurisdiction under section 107 to try the charge; or

                     (c)  subject to subsection (4), institute a proceeding in respect of the charge in the Military Court.

             (3)  The Director of Military Prosecutions must not refer the charge to a superior summary authority or a commanding officer if:

                     (a)  the accused person has made an election under Division 1 to have the charge tried by the Military Court and has not withdrawn the election; or

                     (b)  the charge was referred to the Director of Military Prosecutions under:

                              (i)  section 145 or 146; or

                             (ii)  subsection 158A(1); or

                            (iii)  subsection 164(3); or

                            (iv)  clause 34 of Schedule 3B.

             (4)  The Director of Military Prosecutions must not institute a proceeding in respect of a charge of a custodial offence in the Military Court.

Note:          The Military Court does not have jurisdiction to try a charge of a custodial offence: see subsection 63(2) of the Military Court Act.

             (5)  If:

                     (a)  a charge is referred to the Director of Military Prosecutions under subsection 158A(1) or 164(3); and

                     (b)  the Director of Military Prosecutions does not, within 2 months after the conviction was quashed under subsection 158A(1), or the prescribed acquittal was quashed under subsection 164(3) (as the case may be):

                              (i)  direct that the charge be not proceeded with; or

                             (ii)  institute a proceeding for a new trial in respect of the charge in the Military Court;

the Director of Military Prosecutions is taken to have directed, on the day after the end of the 2‑month period, that the charge against the person be not proceeded with.

Note:          If the charge against the person is not proceeded with, the person is taken to have been acquitted of the service offence to which the charge relates: see subsections 159(2) and 165(2).

103A  Charges in relation to which accused person has elected to be tried by the Military Court

             (1)  This section applies if an accused person has elected, under Division 1, to have a charge against the person tried by the Military Court.

             (2)  The Director of Military Prosecutions may:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  institute a proceeding in respect of the charge in the Military Court.

             (3)  If the election is withdrawn under section 102B, the Director of Military Prosecutions may:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  refer the charge to:

                              (i)  a superior summary authority who has jurisdiction under section 106 to try the charge; or

                             (ii)  a commanding officer who has jurisdiction under section 107 to try the charge; or

                     (c)  institute a proceeding in respect of the charge in the Military Court.

103B  Charges in relation to which a new trial is ordered by a reviewing authority

             (1)  This section applies if, in a review of proceedings before a court martial or a Defence Force magistrate, a reviewing authority orders, under section 160 or 166, a new trial of a person.

             (2)  The Director of Military Prosecutions may:

                     (a)  direct that the charge to which the proceeding relates be not proceeded with; or

                     (b)  if the Director of Military Prosecutions is satisfied there is sufficient cogent evidence to justify a new trial of the person—institute a proceeding in respect of the charge in the Military Court.

103C  Charges that the Military Court cannot deal with outside Australia

             (1)  This section applies if a charge is taken to have been withdrawn from the Military Court under paragraph 51(5)(d) of the Military Court Act.

Note:          A charge is taken to have been withdrawn from the Military Court under paragraph 51(5)(d) of the Military Court Act if the Military Court has determined that it is necessary, but not possible, for it to sit at a place outside Australia to hear and determine a proceeding, or a part of a proceeding, in respect of the charge.

             (2)  The Director of Military Prosecutions may:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  subject to subsection (3), refer the charge to:

                              (i)  a superior summary authority who has jurisdiction under section 106 to try the charge; or

                             (ii)  a commanding officer who has jurisdiction under section 107 to try the charge; or

                     (c)  direct a superior authority:

                              (i)  to refer the charge to a Defence Force magistrate for trial under Schedule 3B; or

                             (ii)  to convene a court martial to try the charge under Schedule 3B; or

                     (d)  if circumstances have changed since the charge was taken to have been withdrawn from the Military Court—institute a new proceeding in respect of the charge in the Military Court.

Note:          If the Director of Military Prosecutions gives a direction under subparagraph (2)(c)(i), the charge must be referred to the Defence Force magistrate nominated by the Judge Advocate General: see clause 22 of Schedule 3B.

             (3)  The Director of Military Prosecutions must not refer the charge to a superior summary authority or a commanding officer if the accused person had elected, under Division 1, to have the charge tried by the Military Court.

103D  Proceeding in the Military Court discontinued by the Director of Military Prosecutions

             (1)  This section applies if the Director of Military Prosecutions discontinues a proceeding in respect of a charge against an accused person in the Military Court.

             (2)  The Director of Military Prosecutions may:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  subject to subsection (3), refer the charge to:

                              (i)  a superior summary authority who has jurisdiction under section 106 to try the charge; or

                             (ii)  a commanding officer who has jurisdiction under section 107 to try the charge; or

                     (c)  institute a new proceeding in respect of the charge in the Military Court.

Note:          It may be appropriate for the Director of Military Prosecutions to institute a new proceeding in respect of the charge in the Military Court if circumstances have changed since the first proceeding was discontinued.

             (3)  The Director of Military Prosecutions must not refer the charge to a superior summary authority or a commanding officer if the accused person has elected, under Division 1, to have the charge tried by the Military Court.

103E  Charges referred after court martial dissolved or proceeding before Defence Force magistrate discontinued

General

             (1)  Subsection (2) applies if a superior authority:

                     (a)  has dissolved a court martial and referred the charge being tried by the court martial to the Director of Military Prosecutions under subclause 19(5) of Schedule 3B; or

                     (b)  has terminated a reference of a charge to a Defence Force magistrate and referred the charge to the Director of Military Prosecutions under subclause 31(3) of Schedule 3B.

             (2)  The Director of Military Prosecutions may:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  subject to subsection (3), refer the charge to:

                              (i)  a superior summary authority who has jurisdiction under section 106 to try the charge; or

                             (ii)  a commanding officer who has jurisdiction under section 107 to try the charge; or

                     (c)  direct a superior authority:

                              (i)  to refer the charge to a Defence Force magistrate for trial under Schedule 3B; or

                             (ii)  to convene a court martial to try the charge under Schedule 3B; or

                     (d)  institute a proceeding in respect of the charge in the Military Court.

Note 1:       If the Director of Military Prosecutions gives a direction under subparagraph (2)(c)(i), the charge must be referred to the Defence Force magistrate nominated by the Judge Advocate General: see clause 22 of Schedule 3B.

Note 2:       It may be appropriate for a proceeding in respect of the charge to be instituted in the Military Court if circumstances have changed since the charge was taken to have been withdrawn from the Military Court under paragraph 51(5)(d) of the Military Court Act.

             (3)  The Director of Military Prosecutions must not refer the charge to a superior summary authority or a commanding officer if the accused person had elected, under Division 1, to have the charge tried by the Military Court.

Application by accused person to have charge tried by Military Court

             (4)  Subsection (5) applies if a superior authority:

                     (a)  has dissolved a court martial and referred the charge being tried by the court martial to the Director of Military Prosecutions under subclause 20(3) of Schedule 3B; or

                     (b)  has terminated a reference of a charge to a Defence Force magistrate and referred the charge to the Director of Military Prosecutions under subclause 32(3) of Schedule 3B.

Note:          A charge is referred to the Director of Military Prosecutions under subclause 20(3) or 32(3) of Schedule 3B if the judge advocate of the court martial or the Defence Force magistrate (as the case may be) grants an application by the accused person to have the charge tried by the Military Court.

             (5)  The Director of Military Prosecutions may:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  institute a proceeding in respect of the charge in the Military Court.

103F  Conviction or prescribed acquittal by court martial or Defence Force magistrate set aside on appeal to Military Court

             (1)  This section applies if the Military Court, under Division 3 of Part 4 of Schedule 3B, sets aside a conviction or a prescribed acquittal of a person of a service offence by a court martial or a Defence Force magistrate.

             (2)  The Director of Military Prosecutions may:

                     (a)  direct that the charge of the service offence be not proceeded with; or

                     (b)  institute a proceeding for a new trial in respect of the charge in the Military Court.

             (3)  If the Director of Military Prosecutions does not, within 2 months after the Military Court order was made:

                     (a)  direct that the charge be not proceeded with; or

                     (b)  institute a proceeding for a new trial in respect of the charge in the Military Court;

the Director of Military Prosecutions is taken to have directed, on the day after the end of the 2‑month period, that the charge against the person be not proceeded with.

Note:          If the charge against the person is not proceeded with, the person is taken to have been acquitted of the service offence to which the charge relates: see clause 66 of Schedule 3B.

74  Division 2 of Part VII (heading)

Repeal the heading, substitute:

Part VIIIProcedure of service tribunals

Division 1Summary authorities

75  Subsection 105A(3)

Omit “Subject to paragraph 103(1)(b), if”, substitute “If”.

76  Subsection 105A(3) (note)

Repeal the note.

77  Section 106

Before “A superior”, insert “(1)”.

78  At the end of section 106

Add:

             (2)  A superior summary authority has jurisdiction to take action under Part IV in relation to a person in the circumstances referred to in subsection 76(1A).

Note:          A superior summary authority may be disqualified from taking such action because of subsection 108A(3).

79  At the end of section 107

Add:

             (3)  A commanding officer has jurisdiction to take action under Part IV in relation to a person in the circumstances referred to in subsection 76(1A).

Note:          A commanding officer may be disqualified from taking such action because of subsection 108A(3).

80  After subsection 108(3)

Insert:

          (3A)  A subordinate summary authority has jurisdiction to take action under Part IV in relation to a person in the circumstances referred to in subsection 76(1A).

Note:          A subordinate summary authority may be disqualified from taking such action because of subsection 108A(3).

81  Section 108A (heading)

Repeal the heading, substitute:

108A  Disqualification of summary authority from trying a charge or taking action under Part IV

82  At the end of section 108A

Add:

             (3)  A summary authority must not take action under Part IV in relation to a person for a service offence in the circumstances referred to in subsection 76(1A) if, because of subsection (1), the summary authority would not have been permitted to try the charge of the service offence.

83  Sections 111B and 111C

Repeal the sections, substitute:

111B  Election by accused person to have charge tried by the Military Court

                   A summary authority who is dealing with, or trying, a charge against an accused person must refer the charge to the Director of Military Prosecutions if the accused person elects, under Division 1 of Part VII, to have the charge tried by the Military Court.

Note:          The Director of Military Prosecutions may deal with the charge under section 103A.

84  Divisions 3, 4 and 5 of Part VII

Repeal the Divisions.

85  Part VIII (heading)

Repeal the heading.

86  Division 1 of Part VIII (heading)

Repeal the heading.

87  Subparagraph 130(1)(a)(ii)

Omit “, subject to subsection 131(3),”.

88  Sections 131 and 131AA

Repeal the sections.

89  Section 131B

Repeal the section.

90  Division 2 of Part VIII

Repeal the Division.

91  Subsection 139(1)

After “(5)”, insert “and Division 2 of Part 3 of Schedule 3B”.

92  Paragraph 139(4)(a)

Repeal the paragraph, substitute:

                     (a)  is satisfied that the accused person:

                              (i)  (except in relation to a charge of a custodial offence) was given an opportunity to obtain legal advice in relation to the right to elect to have the charge tried by the Military Court; and

                             (ii)  was not required to enter a plea to the charge within the first 24 hours after being charged; and

                            (iii)  understands the effect of the plea; and

93  Section 140

Repeal the section.

94  Subparagraph 141(1)(b)(i)

Omit “section 144”, substitute “section 190A”.

95  Paragraph 141A(1)(b)

Omit “section 103”, substitute “Division 2 of Part VII”.

96  At the end of paragraphs 142(1)(a), (b), (ba) and (c)

Add “and”.

97  Paragraph 142(1)(d)

Omit “offence; and”, substitute “offence.”.

98  Paragraph 142(1)(e)

Repeal the paragraph.

99  Section 144

Repeal the section.

100  Sections 145, 145A and 146

Repeal the sections, substitute:

145  Unfitness to be tried—proceedings before a summary authority

                   If, in a trial of a charge of a service offence by a summary authority, it appears to the summary authority (whether on the basis of evidence or otherwise) that the accused person may not be able to understand the proceedings against him or her and accordingly may be unfit to be tried, the summary authority must refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103.

146  Mental impairment at time of conduct constituting service offence—proceedings before a summary authority

                   If, in a trial of a charge of a service offence by a summary authority, evidence is adduced that shows, or tends to show, that the accused person, at the time of carrying out the conduct constituting the service offence, was suffering from such mental impairment as not to be responsible for that conduct, the summary authority must refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103.

101  After subsection 146A(2)

Insert:

          (2A)  The summary authority must take judicial notice of all matters within the general service knowledge of the summary authority.

102  Section 147

Repeal the section.

103  Subdivision B of Division 3 of Part VIII

Repeal the Subdivision.

104  Subdivision C of Division 3 of Part VIII (heading)

Repeal the heading, substitute:

Subdivision CRules of procedure for summary authorities

105  Section 149A

Repeal the section.

106  Subsection 152(1)

Repeal the subsection, substitute:

             (1)  As soon as practicable after a service tribunal:

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

                     (b)  acquits a person of a service offence under subclause 35(1) of Schedule 3B; or

                     (c)  takes action under Part IV in relation to a person in the circumstances referred to in subsection 76(1A);

the service tribunal must send the record of the proceedings to a competent reviewing authority.

107  Subsection 152(3)

Repeal the subsection, substitute:

             (3)  After reviewing the proceedings, the reviewing authority must give written notice of the results of the review to:

                     (a)  the person to whom the proceedings relate; and

                     (b)  the service tribunal.

108  Subsection 153(1)

Repeal the subsection, substitute:

             (1)  If a service tribunal:

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

                     (b)  acquits a person of a service offence under subclause 35(1) of Schedule 3B; or

                     (c)  takes action under Part IV in relation to a person in the circumstances referred to in subsection 76(1A);

the person may lodge with a competent reviewing authority a petition for a review of the proceedings concerned.

Note:          This subsection is affected by clause 54 of Schedule 3B, which deals with the effect of an appeal to the Military Court on a review of proceedings of a court martial or a Defence Force magistrate.

109  Subsection 153(1A)

Omit “within”, substitute “before the end of”.

110  Subsection 153(2)

Repeal the subsection.

111  Subsections 153(3) and (4)

Omit “or (2)”.

112  Subsection 153(5)

Repeal the subsection.

113  Paragraph 154(1)(a)

Omit “a direction given under subsection 145(2) or (5)”, substitute “an acquittal under subclause 35(1) of Schedule 3B”.

114  At the end of subsection 155(1)

Add:

Note:          This subsection is affected by clause 54 of Schedule 3B, which deals with the effect of an appeal to the Military Court on a review of proceedings of a court martial or a Defence Force magistrate.

115  Section 156

Repeal the section.

116  Section 157

After “Division”, insert “(other than section 162)”.

117  Section 158 (heading)

Repeal the heading, substitute:

158  Quashing of conviction—general

118  Subsections 158(1) and (2)

Omit “Subject to subsection (5), where”, substitute “If”.

119  Subsections 158(3), (4) and (5)

Repeal the subsections.

120  After section 158

Insert:

158A  Quashing of conviction—unfitness to be tried or mental impairment at time of conduct constituting service offence

Unfitness to be tried

             (1)  Subject to subsection (9), if in a review it appears to the reviewing authority that the service tribunal should have referred the charge to which the conviction relates to the Director of Military Prosecutions, under section 145 or clause 34 of Schedule 3B, on the basis that the accused person was unfit to be tried, the reviewing authority must:

                     (a)  quash the conviction; and

                     (b)  refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103.

Mental impairment at time of conduct constituting service offence

             (2)  Subject to subsection (9), if in a review the reviewing authority is satisfied that, at the time of carrying out the conduct constituting the service offence to which the conviction relates, the convicted person was suffering from such mental impairment as not to be responsible for that conduct, the reviewing authority must:

                     (a)  quash the conviction; and

                     (b)  find the person not guilty of the service offence because of mental impairment; and

                     (c)  acquit the person of the service offence.

             (3)  For the purpose of applying section 7.3 of the Criminal Code in relation to a review, subsection 7.3(4) is taken to be omitted.

             (4)  If a reviewing authority acquits a person (the acquitted person) of a service offence under subsection (2), the reviewing authority may:

                     (a)  by order, release the acquitted person:

                              (i)  into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or

                             (ii)  on condition that the acquitted person attend on another person, or at a place, specified by the reviewing authority, for assessment of the acquitted person’s mental impairment or for treatment (or both), but so that the total period for which the acquitted person is required to attend on that other person or at that place does not exceed 3 years; or

                            (iii)  unconditionally; or

                     (b)  make any other order the reviewing authority considers necessary, having regard to:

                              (i)  the best interests of the acquitted person; and

                             (ii)  the safety of any other person to whom the order relates; and

                            (iii)  the safety of the community generally.

             (5)  An order under paragraph (4)(b) must specify the period, not exceeding 3 years, during which it is to have effect.

Order relating to acquitted person may be varied or set aside

             (6)  The Director of Military Prosecutions or an acquitted person to whom an order subsection (4) relates may apply for the order to be varied or set aside.

             (7)  An application under subsection (6) must be made:

                     (a)  if the acquitted person is a defence member at the time of the application—to a service chief; or

                     (b)  in any other case—to the Attorney‑General.

             (8)  If an application is made under subsection (6) to a service chief or the Attorney‑General, the service chief or the Attorney‑General (as the case may be) may vary or set aside the order to which the application relates.

Restriction on quashing a conviction under this section

             (9)  A reviewing authority must not quash a conviction under this section if there are grounds for quashing the conviction under section 158.

121  Section 159

Repeal the section, substitute:

159  Person taken to have been acquitted

             (1)  For the purposes of this Act, if a reviewing authority:

                     (a)  quashes a conviction of a person of a service offence under section 158; and

                     (b)  does not order a new trial of the person for the offence;

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

             (2)  For the purposes of this Act, if:

                     (a)  a reviewing authority quashes a conviction of a person of a service offence (other than a custodial offence) under subsection 158A(1); and

                     (b)  the Director of Military Prosecutions directs that the charge of the offence be not proceeded with;

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

Note:          See section 103 in relation to the powers of the Director of Military Prosecutions in relation to the charge.

             (3)  For the purposes of this Act, if a reviewing authority quashes a conviction of a person of a custodial offence under subsection 158A(1), the person is taken to have been acquitted of the offence.

122  Paragraph 160(1)(a)

Before “quashes”, insert “under section 158,”.

123  At the end of section 160

Add:

             (4)  If, in a review of proceedings of a summary authority, a reviewing authority makes an order under subsection (1) for a new trial of a person for a service offence, the reviewing authority must notify the person, in writing, that the person may elect to have the charge tried by the Military Court. The notice must include the information referred to in paragraph 87A(2)(b).

Note:          Division 1 of Part VII deals with how to elect to have a charge tried by the Military Court.

124  Subsection 162(3)

Repeal the subsection.

125  Subsection 162(5)

Omit “or (3)”.

126  Subsection 162(5)

Omit “convicted the convicted person of the service offence of which he or she was convicted”, substitute “imposed the punishment or made the order”.

127  At the end of paragraphs 162(5)(a) and (b)

Add “or”.

128  At the end of section 162

Add:

Definition of review

           (10)  In this section, review means a review under this Part of:

                     (a)  proceedings of a service tribunal that have resulted in a conviction; or

                     (b)  proceedings in which a summary authority has taken action under Part IV in relation to a person in the circumstances referred to in subsection 76(1A).

129  Division 4 of Part VIIIA (heading)

Repeal the heading, substitute:

Division 4Action on review of proceedings that have resulted in a prescribed acquittal

130  Subsection 164(3)

Repeal the subsection, substitute:

             (3)  If in a review it appears to the reviewing authority that the service tribunal should have referred the charge to which the prescribed acquittal relates to the Director of Military Prosecutions, under clause 34 of Schedule 3B, on the basis that the accused person was unfit to be tried, the reviewing authority must:

                     (a)  quash the prescribed acquittal; and

                     (b)  refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103.

131  At the end of section 164

Add:

             (5)  If a reviewing authority quashes a prescribed acquittal under this section, any order in force in relation to the prescribed acquitted person under:

                     (a)  subparagraph 158A(4)(a)(i) or (ii) or paragraph 158A(4)(b); or

                     (b)  subparagraph 35(3)(a)(i) or (ii) or paragraph 35(3)(b) of Schedule 3B;

is taken to be revoked.

132  Section 165

Repeal the section, substitute:

165  Person taken to have been acquitted

             (1)  For the purposes of this Act, if a reviewing authority:

                     (a)  quashes a prescribed acquittal of a person of a service offence under subsection 164(1) or (2); and

                     (b)  does not order a new trial of the person for the offence;

the person is taken to have been acquitted of the offence without qualification.

             (2)  For the purposes of this Act, if:

                     (a)  a reviewing authority quashes a prescribed acquittal of a person of a service offence (other than a custodial offence) under subsection 164(3); and

                     (b)  the Director of Military Prosecutions directs that the charge of the offence be not proceeded with;

the person is taken to have been acquitted of the offence without qualification.

Note:          See section 103 in relation to the powers of the Director of Military Prosecutions in relation to the charge.

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

133  Paragraph 166(1)(a)

Before “quashes”, insert “under subsection 164(1) or (2),”.

134  Subsection 169(2)

Omit “convicted the convicted person of the service offence of which he or she was convicted”, substitute “imposed the punishment or made the order”.

135  At the end of paragraphs 169(2)(a) and (b)

Add “or”.

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

Repeal the cell, substitute:

Any discipline officer

137  Subsection 169E(4)

Omit all the words after paragraph (b), substitute “a relevant officer may refer the matter to the Director of Military Prosecutions, or an authorised member of the Defence Force for the purposes of section 87, to be dealt with under that section”.

138  Section 169J

Omit “other Part”, substitute “provision of this Act other than this Part, or under the Military Court Act,”.

139  Subsection 171(1)

Omit “, a reviewing authority or the Defence Force Discipline Appeal Tribunal”, substitute “or a reviewing authority”.

140  Section 173

Repeal the section.

141  Subsection 174(1)

Omit “or the Defence Force Discipline Appeals Act 1955”.

142  Subsection 175(1)

Omit “The Registrar, an”, substitute “An”.

143  Paragraph 175(1)(a)

Omit “or the Defence Force Discipline Appeals Act 1955”.

144  Subsection 175(2)

Omit “the Registrar,”.

145  After section 175

Insert:

175A  Release from custody pending approval of punishment or dismissal from Defence Force

             (1)  This section applies in relation to:

                     (a)  a person who is being kept in custody under subsection 172(3A), (4) or (5) pending approval by a reviewing authority of a punishment imposed on the person; and

                     (b)  a person who is being kept in custody under subsection 171(1C) until the dismissal of the person from the Defence Force takes effect.

             (2)  A reviewing authority may release the person from custody:

                     (a)  in the case of a person referred to in paragraph (1)(a)—pending the decision under Division 5 of Part VIIIA to approve or to not approve the punishment; and

                     (b)  in the case of a person referred to in paragraph (1)(b)—until the dismissal of the person from the Defence Force takes effect.

             (3)  The reviewing authority:

                     (a)  may impose on the person, in relation to the release, such conditions or restrictions (being conditions or restrictions of a kind authorised by the Chief of the Defence Force or a service chief, by instrument in writing, for the purposes of this section), as he or she considers necessary; and

                     (b)  may vary or revoke any such condition or restriction.

             (4)  If the reviewing authority:

                     (a)  imposes a condition or restriction on the person under this section; or

                     (b)  varies or revokes such a condition or restriction;

the reviewing authority must notify the person of the condition or restriction, or the variation or revocation of the condition or restriction, as soon as practicable.

             (5)  A person who is released from custody by a reviewing authority under subsection (2) may again be taken into custody if:

                     (a)  the person is in breach of a condition or restriction in force in relation to the person under this section; or

                     (b)  the person is arrested for another service offence.

             (6)  An instrument made by the Chief of the Defence Force or a service chief under paragraph (3)(a) is not a legislative instrument.

146  Section 176

Repeal the section, substitute:

176  Stay of execution of punishment pending review

             (1)  If a service tribunal has imposed a punishment on a convicted person, the reviewing authority who is reviewing the proceedings under section 152 may order that the execution of the punishment be stayed in whole or in part pending the completion of the review under that section.

             (2)  If:

                     (a)  a service tribunal has imposed a punishment on a convicted person; and

                     (b)  the convicted person lodges a petition under section 153 for review of the proceedings with respect to the conviction or punishment;

the reviewing authority may order that the execution of the punishment be stayed in whole or in part pending the completion of the review.

Note:          An order under this section may be appropriate in relation to a punishment that can take effect without being approved by a reviewing authority. Certain punishments do not take effect unless they are approved by a reviewing authority: see section 172 and Division 5 of Part VIIIA.

147  Part XI (heading)

Repeal the heading, substitute:

Part XIJudge Advocate General and Deputy Judge Advocates General

148  Division 1 of Part XI (heading)

Repeal the heading.

149  Divisions 2 and 3 of Part XI

Repeal the Divisions.

150  Paragraph 188GA(1)(a)

Repeal the paragraph, substitute:

                    (aa)  to institute and carry on proceedings in the Military Court;

                     (a)  to carry on prosecutions for service offences in proceedings before a court martial or a Defence Force magistrate;

151  Paragraph 188GA(1)(d)

Repeal the paragraph.

152  After section 188GA

Insert:

188GAA  Minister may issue directions and guidelines

             (1)  In performing the functions and exercising the powers of the Director of Military Prosecutions, the Director of Military Prosecutions is subject to such directions and guidelines as the Minister, after consultation with the Attorney‑General and the Director of Military Prosecutions, issues, in writing, to the Director of Military Prosecutions.

             (2)  Without limiting subsection (1), directions or guidelines may:

                     (a)  relate to the circumstances in which the Director of Military Prosecutions should institute or carry on proceedings in respect of service offences; and

                     (b)  relate to the circumstances in which undertakings should be given under section 188GD; and

                     (c)  be issued in relation to particular cases.

             (3)  If the Minister issues a direction or a guideline, the Minister must:

                     (a)  as soon as practicable after the relevant time in relation to the direction or guideline, cause a copy of the direction or guideline to be published in the Gazette; and

                     (b)  cause a copy of that direction or guideline to be laid before each House of the Parliament within 15 sitting days of that House after that time.

             (4)  Subject to subsection (5), the relevant time for the purposes of subsection (3), in relation to a direction or guideline, is the time when the direction or guideline is made.

             (5)  If:

                     (a)  a direction or guideline relates to a matter in relation to which proceedings may be instituted or are being carried on; and

                     (b)  the Minister is satisfied that the interests of justice require that the contents of the direction or guideline not be disclosed;

the relevant time for the purposes of subsection (3), in relation to the direction or guideline, is the earlier of the following:

                     (c)  the time when the Minister ceases to be satisfied as to the matter mentioned in paragraph (b);

                     (d)  the time when (as the case may be):

                              (i)  it is decided that no proceedings will be instituted in relation to the matter; or

                             (ii)  all proceedings in relation to the matter (including proceedings by way of appeal from, or otherwise arising out of, proceedings in relation to the matter) are determined or discontinued.

             (6)  A direction or guideline issued under this section is not a legislative instrument.

153  Section 188GB

After “proceedings before”, insert “the Military Court,”.

154  Paragraph 188GJ(2)(b)

Omit “General; or”, substitute “General.”.

155  Paragraph 188GJ(2)(c)

Repeal the paragraph.

156  At the end of section 190

Add:

             (5)  In this section, civil court does not include the Military Court.

157  After section 190

Insert:

190A  Previous acquittal or conviction

             (1)  If a person has been acquitted or convicted of a service offence in respect of an act or omission, the person is not liable to be tried for that service offence, or for a service offence that is substantially the same as that service offence, in respect of that act or omission.

             (2)  If:

                     (a)  under subsection 144(1) of the Military Court Act, the Military Court has taken a service offence into consideration in relation to a convicted person; or

                     (b)  under subsection 77(1) of this Act, a court martial or a Defence Force magistrate has taken a service offence into consideration in relation to a convicted person;

the person is not liable to be tried for that service offence, or for a service offence that is substantially the same offence as that service offence.

             (3)  If:

                     (a)  a person has been acquitted or convicted by a civil court of a civil court offence; or

                     (b)  a person has been acquitted or convicted by an overseas court of an overseas offence;

the person is not liable to be tried for a service offence that is substantially the same as the civil court offence or the overseas offence (as the case may be).

             (4)  If a defence member has been dealt with by a discipline officer under Part IXA in respect of an act or omission constituting a disciplinary infringement for the purposes of that Part, the member is not liable to be tried for a service offence corresponding to the disciplinary infringement.

             (5)  For the purpose of subsection (4), the exercise by a discipline officer of the power conferred by subsection 169F(3) does not constitute dealing with a defence member under Part IXA.

             (6)  For the purposes of this section:

                     (a)  the dismissal of a charge under section 130 or clause 14 or 28 of Schedule 3B is taken to be an acquittal of the service offence the subject of the charge; and

                     (b)  a direction under Division 2 of Part VII or section 110 or 111 that a charge be not proceeded with is taken not to be an acquittal of the service offence the subject of the charge; and

                     (c)  the dismissal of a charge of a service offence against a person, or the discharge of a person in proceedings on a charge of a service offence, by the Military Court under section 19B of the Crimes Act 1914 is taken to be an acquittal of the offence; and

                     (d)  the dismissal of a charge of a civil court offence against a person, or the discharge of a person in proceedings on a charge of a civil court offence, by a civil court, under section 19B of the Crimes Act 1914 or any corresponding provision of a law of a State or Territory, is taken to be an acquittal of the offence.

190B  Effect of conviction (other than of certain disciplinary offences) by the Military Court, a court martial or a Defence Force magistrate

             (1)  This section applies in relation to a conviction of a person of a service offence (other than a service offence referred to in Schedule 7) by:

                     (a)  the Military Court; or

                     (b)  a court martial; or

                     (c)  a Defence Force magistrate.

             (2)  If a record of the conviction is kept, the record must state that the conviction is a conviction of a service offence.

             (3)  A service chief or an authorized officer may disclose the fact that a person has been convicted of a service offence, and any information relating to the conviction, to an authority of the Commonwealth, or of a State or a Territory, for purposes connected with investigating, prosecuting or keeping records in relation to offences against laws of the Commonwealth, the State or the Territory.

             (4)  For the purpose of complying with a requirement or an authorisation to disclose, for a lawful purpose, the fact that a person has been convicted of an offence against a law of the Commonwealth that is a service offence, the disclosure must expressly refer to the offence as a service offence.

Note:          Part VIIC of the Crimes Act 1914 exempts a person from having to disclose a spent conviction.

             (5)  This section applies in relation to a conviction that occurs after the commencement of this section.

190C  Effect of conviction by a summary authority and certain convictions by the Military Court, a court martial or a Defence Force magistrate

             (1)  This section applies in relation to:

                     (a)  a conviction of a person of a service offence by a summary authority; and

                     (b)  a conviction of a person of a service offence referred to in Schedule 7 by:

                              (i)  the Military Court; or

                             (ii)  a court martial; or

                            (iii)  a Defence Force magistrate.

             (2)  The conviction has effect for service purposes only.

             (3)  The convicted person is not required to disclose to any person, for any purpose (other than a service purpose), the fact that the person has been convicted of the service offence.

Note:          A person who has been convicted of a service offence to which this section applies is not required to disclose the conviction for service purposes if the conviction is spent within the meaning of Part VIIC of the Crimes Act 1914.

             (4)  Subsections (2) and (3) have effect despite subsection 3A(1).

             (5)  This section applies in relation to a conviction whether it occurs before or after the commencement of this section.

190D  Representation of accused person

             (1)  An accused person who:

                     (a)  is advised by a legal officer in relation to a proceeding (including an appeal) in the Military Court, or a proceeding before a court martial or a Defence Force magistrate; or

                     (b)  is represented at such a proceeding by a legal officer;

must be so advised or represented without expense to the accused person.

             (2)  Subsection (1) does not prevent the operation of any scheme of legal aid, advice or assistance under a law of the Commonwealth or of a State or Territory.

158  Paragraphs 191(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

                     (a)  the acquittal or conviction by a service tribunal of a person of a service offence; or

                     (b)  the dismissal of a charge of a service offence against a person under section 130 or clause 14 or 28 of Schedule 3B; or

159  Subsection 193(4)

Repeal the subsection, substitute:

             (4)  An action, suit or proceeding does not lie against the Director of Military Prosecutions, or a person assisting the Director of Military Prosecutions, in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, conferred by or under this Act or any other law of the Commonwealth.

             (5)  An action, suit or proceeding does not lie against a superior authority in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, as a superior authority.

160  Section 194

Repeal the section.

161  Section 195

Repeal the section, substitute:

195  Access to record of proceedings before court martial or Defence Force magistrate

Application by accused person or convicted person

             (1)  A person who is or was the accused person or the convicted person in proceedings before a court martial or a Defence Force magistrate may apply to a service chief or an authorized officer for a copy of the record of the proceedings.

Application by representative of deceased person

             (2)  If the person (the deceased person) has died, either of the following may apply to a service chief or an authorized officer for a copy of the record of the proceedings:

                     (a)  the deceased person’s legal personal representative;

                     (b)  a person approved by the service chief or the authorized officer as the deceased person’s representative.

             (3)  If the deceased person has a legal personal representative, a service chief or an authorized officer must not approve a person under paragraph (2)(b) unless the service chief or the authorized officer is satisfied that the deceased person’s legal personal representative has declined to make an application under subsection (2).

Record of proceedings to be given

             (4)  If a person applies for a copy of a record of proceedings under subsection (1) or (2), the service chief or the authorized officer must give a copy of the record to the person.

             (5)  Nothing in this section authorises or requires a copy of a record of proceedings, or of part of such a record, to be given if an order under subsection 148(2) or paragraph 33(2)(b) of Schedule 3B prohibits the publication of the record or the part of the record.

Proceedings in civil courts not affected

             (6)  Nothing in this section affects:

                     (a)  the power of a civil court to make an order for the discovery of documents; or

                     (b)  the giving of evidence in, or the production of documents to, a civil court.

162  Subsection 196A(4)

Repeal the subsection, substitute:

             (4)  A report under subsection (1) must not relate to:

                     (a)  decisions of the Military Court; or

                     (b)  the operation or management of the administrative affairs of the Military Court; or

                     (c)  any other matters relating to the Military Court.

Note:          The Chief Justice of the Military Court is required to prepare an annual report on the management of the administrative affairs of the Military Court: see section 47 of the Military Court Act.

163  Schedules 1A and 1

Repeal the Schedules.

164  Schedule 3

Repeal the Schedule, substitute:

Schedule 3Punishments that may be imposed by a summary authority

Note:       See subsection 67(2).

  

 

Table A—Punishments that may be imposed by a superior summary authority on certain officers

Item

Column 1

Convicted person

Column 2

Punishment

1

Officer:

(a) of or below the rank of rear admiral but above the rank of lieutenant commander; or

(b) of or below the rank of major‑general but above the rank of major; or

(c) of or below the rank of air vice‑marshal but above the rank of squadron leader

Fine not exceeding the amount of the convicted person’s pay for 7 days

Severe reprimand

Reprimand

 

Table B—Punishments that may be imposed by a superior summary authority on other persons

Item

Column 1

Convicted person

Column 2

Punishment

1

Officer of or below the rank of lieutenant commander, major or squadron leader

Warrant officer

Fine not exceeding the amount of the convicted person’s pay for 14 days

Severe reprimand

Reprimand

2

Person who is not a member of the Defence Force

Fine not exceeding 7 penalty units

 

Table C—Punishments that may be imposed by a commanding officer on convicted persons

Item

Column 1

Convicted person

Column 2

Punishment

1

Officer of or below the naval rank of lieutenant, the rank of captain in the Army or the rank of flight lieutenant

Warrant officer

Fine not exceeding the amount of the convicted person’s pay for 14 days

Severe reprimand

Reprimand

2

Non‑commissioned officer

Reduction in rank by one rank or, in the case of a corporal of the Army, reduction in rank by one or 2 ranks

Forfeiture of seniority

Fine not exceeding the amount of the convicted person’s pay for 14 days

Severe reprimand

Reprimand

3

Member below non‑commissioned rank who, at the time he or she committed the service offence of which he or she has been convicted, was on active service

Detention for a period not exceeding 42 days

Fine not exceeding the amount of the convicted person’s pay for 28 days

Severe reprimand

Restriction of privileges for a period not exceeding 14 days

Extra duties for a period not exceeding 7 days

Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days

Reprimand

4

Member below non‑commissioned rank who, at the time he or she committed the service offence of which he or she has been convicted, was not on active service

Detention for a period not exceeding 28 days

Fine not exceeding the amount of the convicted person’s pay for 28 days

Severe reprimand

Restriction of privileges for a period not exceeding 14 days

Extra duties for a period not exceeding 7 days

Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days

Reprimand

5

Person who is not a member of the Defence Force

Fine not exceeding 7 penalty units

 

Table D—Punishments that may be imposed by a subordinate summary authority on convicted persons

Item

Column 1

Convicted person

Column 2

Punishment

1

Non‑commissioned officer of, or below, the rank of leading seaman or corporal

Fine not exceeding the amount of the convicted person’s pay for 3 days

Severe reprimand

Reprimand

2

Member below non‑commissioned rank

Fine not exceeding the amount of the convicted person’s pay for 3 days

Severe reprimand

Restriction of privileges for a period not exceeding 7 days

Stoppage of leave for a period not exceeding 7 days

Extra duties for a period not exceeding 7 days

Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days

Reprimand

 

165  After Schedule 3A

Insert:

Schedule 3BCourts martial and Defence Force magistrates

Note:       See paragraphs 103C(2)(c) and 103E(2)(c).

Part 1Courts martial

Division 1Convening a court martial and jurisdiction

1  Convening order and appointment of court martial

             (1)  A superior authority must make an order convening a court martial if the Director of Military Prosecutions directs the superior authority to do so under subparagraph 103C(2)(c)(ii) or 103E(2)(c)(ii) or under subclause 19(6) or paragraph 31(4)(d) of this Schedule.

Note 1:       Subparagraph 103C(2)(c)(ii) provides for the Director of Military Prosecutions to direct a superior authority to convene a court martial to try a charge if the charge is taken to have been withdrawn from the Military Court under paragraph 51(5)(d) of the Military Court Act because the Military Court has determined that it is necessary, but not possible, for it to sit at a place outside Australia to hear and determine a proceeding, or a part of a proceeding, in respect of the charge.

Note 2:       Subparagraph 103E(2)(c)(ii) provides for the Director of Military Prosecutions to direct a superior authority to convene a court martial to try a charge against a person if a trial of the charge under this Schedule is discontinued before the charge is dismissed or the person is convicted or acquitted of the charge.

Note 3:       Subclause 19(6) and paragraph 31(4)(d) of this Schedule provide for the Director of Military Prosecutions to direct a superior authority to convene a court martial to take action under Part IV in relation to a convicted person if a proceeding under this Schedule is discontinued after the person has been convicted but before such action has been taken.

             (2)  A superior authority must, in an order convening a court martial:

                     (a)  appoint:

                              (i)  the President and the other members; and

                             (ii)  an adequate number of reserve members; and

                            (iii)  the judge advocate; and

                     (b)  fix, or provide for the fixing of, the time and place for the assembling of the court martial.

Note:          Division 2 sets out provisions relating to the membership of a court martial.

             (3)  The appropriate service chief must make available, for the purposes of a court martial, a defence member who is appointed to be a member of the court martial.

             (4)  At any time before a court martial assembles to try a charge, the convening superior authority may, after consulting the Director of Military Prosecutions:

                     (a)  vary the order convening the court martial; or

                     (b)  make an order convening a new court martial.

             (5)  A court martial must not be convened otherwise than under this clause.

2  Types of court martial

             (1)  A court martial is to be either a general court martial or a restricted court martial.

             (2)  A general court martial consists of a President and not fewer than 4 other members.

             (3)  A restricted court martial consists of a President and not fewer than 2 other members.

3  Jurisdiction of court martial

             (1)  A court martial has, subject to section 63 and to subclause (3) of this clause, jurisdiction to try any charge against any person.

Note:          A court martial can only be convened under clause 1 of this Schedule: see subclause 1(5).

             (2)  A court martial also has jurisdiction to take action under Part IV in relation to a convicted person if the court martial has been convened for that purpose because of a direction under subclause 19(6) or paragraph 31(4)(d) of this Schedule.

Note:          A court martial convened because of a direction under subclause 19(6) or paragraph 31(4)(d) must hear evidence before taking action under Part IV: see subclauses 19(7) and 31(5).

             (3)  A court martial does not have jurisdiction to try a charge of a custodial offence.

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

             (1)  The convening superior authority for a court martial must, as soon as practicable after making the order convening the court martial, give a copy of the order to the accused person.

             (2)  If the convening superior authority for a court martial varies the order convening the court martial, he or she must notify the accused person accordingly.

Division 2Membership of court martial

5  Eligibility to be member of court martial

             (1)  For the purposes of this Act, a person is eligible to be a member, or a reserve member, of a court martial only if:

                     (a)  the person is an officer; and

                     (b)  the person has been an officer for a continuous period of not less than 3 years or for periods amounting in the aggregate to not less than 3 years; and

                     (c)  the person holds a rank that is not lower than the rank held by the accused person (being a member of the Defence Force) or by any of the accused persons (being members of the Defence Force).

             (2)  For the purposes of this Act, an officer is eligible to be the President of a court martial only if the officer holds a rank that is not lower than:

                     (a)  in the case of a general court martial—the naval rank of captain or the rank of colonel or group captain; or

                     (b)  in the case of a restricted court martial—the rank of commander, lieutenant‑colonel or wing commander.

             (3)  Subclause (2) does not apply in relation to a person who becomes the President of a court martial because of:

                     (a)  an appointment made under paragraph 10(1)(e) of this Schedule; or

                     (b)  subclause 11(1) of this Schedule.

             (4)  The requirements set out in paragraph (1)(c) and subclause (2) apply only if, and to the extent that, the exigencies of service permit.

6  Eligibility to be judge advocate

                   For the purposes of this Act, a person is eligible to be the judge advocate of a court martial only if the person is a member of the judge advocates’ panel.

Note:          A member of the judge advocates’ panel is appointed for a maximum period of 3 years but is eligible for reappointment: see subsection 196(2A).

7  Restrictions on appointment of members of courts martial

             (1)  The convening superior authority for a court martial must not appoint a person as:

                     (a)  the President of the court martial; or

                     (b)  a member or reserve member of the court martial; or

                     (c)  the judge advocate of the court martial;

if the convening superior authority believes the person to be:

                     (d)  biased or likely to be biased; or

                     (e)  likely to be thought, on reasonable grounds, to be biased.

             (2)  The convening superior authority for a court martial must not appoint a person as the judge advocate of the court martial unless the Judge Advocate General has nominated the person for that position.

8  Notification of belief of bias

                   A member or reserve member, or the judge advocate, of a court martial who believes himself or herself:

                     (a)  to be biased, or likely to be biased; or

                     (b)  likely to be thought, on reasonable grounds, to be biased;

must notify the convening superior authority as soon as practicable after forming that belief.

9  Substitution of members etc.

                   At any time before a court martial is sworn or affirmed, the convening superior authority may:

                     (a)  revoke the appointment of an officer (the original officer) to be a member or reserve member of the court martial or the judge advocate; and

                     (b)  appoint another officer to be a member or reserve member or the judge advocate (as the case may be) in the place of the original officer.

Note:          The convening superior authority must not appoint a person as the judge advocate of the court martial unless the person has been nominated by the Judge Advocate General: see clause 7 of this Schedule.

10  Replacement of members etc.

             (1)  If, after a court martial has assembled but before it is sworn or affirmed, the judge advocate:

                     (a)  finds that a member of the court martial who has not appeared at the place of assembly is not, or is not likely to be, available; or

                     (b)  upholds an objection entered under subsection 141(2) to a member of the court martial; or

                     (c)  finds that, for some other reason, a member of the court martial should be excused from further attendance as such a member;

the judge advocate must:

                     (d)  if the member concerned is not the President—appoint a reserve member in the place of that member; or

                     (e)  if the member concerned is the President and the next senior member is not more than one rank junior to the President—appoint that next senior member to be the President in the place of the member concerned; or

                      (f)  if the member concerned is the President and the next senior member is more than one rank junior to the President—report the situation to the convening superior authority and request the convening superior authority to appoint a President in the place of the member concerned.

             (2)  If, after a court martial has assembled but before it is sworn or affirmed, the judge advocate finds that there are insufficient members and reserve members to properly constitute the court martial, the judge advocate must:

                     (a)  report the situation to the convening superior authority; and

                     (b)  request the convening superior authority to appoint as many new members or new reserve members, or both, as the convening superior authority considers necessary.

             (3)  If the judge advocate upholds an objection entered under subsection 141(3) to himself or herself, he or she must report the situation to the convening superior authority and request the convening superior authority to appoint another judge advocate in his or her place.

Note:          The convening superior authority must not appoint a person as the judge advocate of the court martial unless the person has been nominated by the Judge Advocate General: see clause 7 of this Schedule.

11  Inability to attend after plea

             (1)  If the President of a court martial is unable to attend at any time after the accused person’s plea of not guilty or guilty has been recorded by the court martial:

                     (a)  the next senior member becomes the President of the court martial; and

                     (b)  the first‑mentioned President must not take any further part in the proceeding.

             (2)  If a member of a court martial is unable to attend at any time after the accused person’s plea of not guilty or guilty has been recorded by the court martial, the member must not take any further part in the proceeding.

Division 3Trial by court martial

12  Application of this Division

                   This Division sets out certain provisions relating to the trial of a charge by a court martial.

Note:          Part 3 of this Schedule and Division 3 of Part VIII contain other provisions relating to the trial of a charge by a court martial.

13  Plea of guilty or not guilty

             (1)  Before the court martial begins to hear the evidence on the charge, the judge advocate must ask the accused person whether he or she pleads guilty or not guilty to the charge.

Plea of guilty

             (2)  If:

                     (a)  the accused person pleads guilty; and

                     (b)  the judge advocate is satisfied that the accused person understands the effect of the plea;

the court martial must convict the accused person.

             (3)  If:

                     (a)  the accused person pleads guilty; and

                     (b)  the judge advocate is not satisfied that the accused person understands the effect of the plea;

the court martial must record a plea of not guilty and proceed to hear the evidence on the charge.

             (4)  If the accused person pleads guilty to a service offence that is one (other than the first) of 2 or more charges stated in the charge sheet in the alternative, the court martial must:

                     (a)  if the Director of Military Prosecutions notifies the court martial that he or she does not object to the acceptance of the plea—accept the plea and convict the accused person; or

                     (b)  otherwise—record a plea of not guilty and proceed to hear the evidence on the charge.

Plea of not guilty etc.

             (5)  If the accused person pleads not guilty, the court martial must record a plea of not guilty and proceed to hear the evidence on the charge.

             (6)  If the accused person:

                     (a)  refuses to plead; or

                     (b)  does not plead intelligibly;

the court martial must record a plea of not guilty and proceed to hear the evidence on the charge.

             (7)  If:

                     (a)  the accused person pleads not guilty; and

                     (b)  the accused person later withdraws that plea and pleads guilty; and

                     (c)  the judge advocate is satisfied that the accused person understands the effect of the plea of guilty;

the court martial must substitute a plea of guilty for the plea of not guilty and proceed accordingly under this clause.

14  Sufficiency of evidence

             (1)  If the judge advocate, after hearing the evidence on the charge adduced by the prosecution, rules that the evidence is insufficient to support the charge, the court martial must dismiss the charge.

             (2)  If the judge advocate, after hearing the evidence on the charge adduced by the prosecution, rules that the evidence is sufficient to support the charge, the court martial must proceed with the trial.

             (3)  However, this clause does not require the judge advocate to give a ruling of the kind referred to in subclause (1) unless:

                     (a)  the accused person has submitted that the judge advocate should give a ruling of the kind referred to in subclause (1); or

                     (b)  the interests of justice require the judge advocate to give a ruling of the kind referred to in subclause (1).

             (4)  Also, this clause does not require the judge advocate to give a ruling of the kind referred to in subclause (2) unless the accused person has submitted that the judge advocate should give a ruling of the kind referred to in subclause (1).

15  Finding of guilty or not guilty

             (1)  If, after hearing evidence on the charge, the court martial finds the accused person guilty, the court martial must convict the accused person.

             (2)  If, after hearing evidence on the charge, the court martial finds the accused person not guilty, the court martial must acquit the accused person.

16  Action after conviction

             (1)  If the court martial convicts the accused person, the court martial must take action under Part IV in relation to the convicted person.

             (2)  Before taking action under Part IV, the court martial must hear any evidence relevant to the determination of the action that should be taken.

Division 4Determination of questions etc.

17  Determination of questions by court martial

             (1)  Subject to clause 18 of this Schedule, in a proceeding before a court martial:

                     (a)  the President must preside; and

                     (b)  every question must be determined by the members of the court martial.

             (2)  Every question determined by the members of the court martial must be decided by a majority of the votes of the members.

             (3)  Subject to subclauses (4) and (5), if the votes are equal on any question referred to in subclause (2), the President has a casting vote.

             (4)  If the votes are equal on the question whether an accused person is guilty or not guilty of a service offence, the court martial must find the accused person not guilty.

             (5)  If the votes are equal on the question whether an accused person, at the time of carrying out the conduct constituting the service offence, was suffering from such mental impairment as not to be responsible for that conduct, the court martial must find that the person was, at that time, suffering from that mental impairment.

             (6)  Despite any other provision of this Act, the members of a court martial must sit without any other person present:

                     (a)  in determining the question whether an accused person:

                              (i)  is guilty or not guilty of a service offence; or

                             (ii)  was suffering from such mental impairment at the time of carrying out the conduct constituting the service offence as not to be responsible for that conduct; or

                     (b)  in determining the action that is to be taken under Part IV in relation to a convicted person.

18  Powers of judge advocate

             (1)  In a proceeding before a court martial, the judge advocate must give any ruling, and exercise any discretion, that, in accordance with the law in force in the Jervis Bay Territory, would be given or exercised by a judge in a trial by jury.

             (2)  If a judge in a trial by jury in the Jervis Bay Territory would sit in the absence of the jury for any purpose in relation to the giving of a ruling, or the exercise of a discretion, under the law in force in that Territory, then the judge advocate must sit without the members of the court martial for any purpose in relation to the giving of such a ruling, or the exercise of such a discretion, by the judge advocate.

             (3)  Despite subclauses (1) and (2), in a proceeding before a court martial:

                     (a)  the members of the court martial must determine the action that is to be taken under Part IV in relation to a convicted person; and

                     (b)  the judge advocate must give a ruling on any question of law arising in connection with the making of such a determination.

             (4)  A ruling given by the judge advocate in accordance with subclause (1) or (3), or a decision made by the judge advocate under subsection 141(5) or (6) or under subclause 20(2) of this Schedule, is binding on the court martial.

             (5)  The judge advocate, if sitting without the members of a court martial, may exercise such of the powers of the court martial or the President as are necessary for the performance of his or her duties.

             (6)  The powers conferred on the judge advocate by this clause are in addition to any other powers conferred on the judge advocate by any other provision of this Act, the regulations or the rules of procedure.

Division 5Dissolution of court martial

19  General provisions

             (1)  If, after a court martial has assembled but before it is sworn or affirmed, the judge advocate considers that by reason of the exigencies of service or for any other reason it is desirable to do so, the judge advocate may direct the convening superior authority to dissolve the court martial.

             (2)  If, at any time after a court martial is sworn or affirmed, the judge advocate considers that, in the interests of justice, the court martial should be dissolved, the judge advocate must direct the convening superior authority to dissolve the court martial.

             (3)  If:

                     (a)  at any time after a court martial is sworn or affirmed, there is an insufficient number of members to properly constitute the court martial; or

                     (b)  at any time after the accused person’s plea of guilty or not guilty has been recorded by a court martial, the judge advocate is unable to attend;

the convening superior authority must dissolve the court martial.

             (4)  If:

                     (a)  a court martial has adjourned the hearing of a proceeding before it; and

                     (b)  the judge advocate considers that, by reason of the exigencies of service, it will not be practicable to continue the hearing of the proceeding at a later date;

the judge advocate must direct the convening superior authority to dissolve the court martial.

             (5)  If a court martial that is trying a charge is dissolved under this clause at any time before the dismissal of the charge or the acquittal or conviction of the accused person, the convening superior authority must refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103E.

             (6)  If a court martial is dissolved under subclause (2), (3) or (4) after it has convicted a person but before it has taken action under Part IV in relation to the convicted person, the Director of Military Prosecutions may direct the convening superior authority to convene another court martial for the purpose of taking such action.

             (7)  Before taking action in accordance with subclause (6), a court martial must hear any evidence relevant to the determination of the action that should be taken.

             (8)  For the purposes of this Act, a member of a court martial convened because of a direction under subclause (6) is not to be taken to be biased only because he or she was a member of the court martial that was dissolved as mentioned in that subclause.

20  Application for charge to be tried by the Military Court

             (1)  At any time before an accused person is asked to plead to a charge (the first charge) at a trial by a court martial, the accused person may apply for the court martial to be dissolved on the ground that, due to a change in circumstances, it would be possible for the first charge, and all other charges (if any) being dealt with together with the first charge, to be tried by the Military Court.

             (2)  If:

                     (a)  the accused person makes an application under subclause (1); and

                     (b)  the judge advocate of the court martial is satisfied that, due to the change in circumstances, it would be possible for the charge or charges to be tried by the Military Court;

the judge advocate must grant the application and direct the convening superior authority to dissolve the court martial.

             (3)  If a convening superior authority dissolves a court martial under subclause (2), the convening superior authority must refer the charge or charges to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge or charges under section 103E.

Part 2Defence Force magistrates

Division 1Referral of charge to Defence Force magistrate etc.

21  Referral of charge or case to Defence Force magistrate

             (1)  A superior authority must refer a charge to a Defence Force magistrate for trial if the Director of Military Prosecutions directs the superior authority to do so under subparagraph 103C(2)(c)(i) or 103E(2)(c)(i).

Note 1:       Subparagraph 103C(2)(c)(i) provides for the Director of Military Prosecutions to direct a superior authority to refer a charge to a Defence Force magistrate if the charge is taken to have been withdrawn from the Military Court under paragraph 51(5)(d) of the Military Court Act because the Military Court has determined that it is necessary, but not possible, for it to sit at a place outside Australia to hear and determine a proceeding, or a part of a proceeding, in respect of the charge.

Note 2:       Subparagraph 103E(2)(c)(i) provides for the Director of Military Prosecutions to direct a superior authority to refer a charge against a person to a Defence Force magistrate if a trial of the charge under this Schedule is discontinued before the charge is dismissed or the person is convicted or acquitted of the charge.

             (2)  A superior authority must refer a charge or a case to a Defence Force magistrate to take action under Part IV in relation to a convicted person if the Director of Military Prosecutions directs the superior authority to do so under paragraph 31(4)(c) of this Schedule.

Note:          Paragraph 31(4)(c) of this Schedule provides for the Director of Military Prosecutions to direct a superior authority to refer a charge or a case to a Defence Force magistrate to take action under Part IV in relation to a convicted person if a proceeding under this Division is discontinued after the person has been convicted but before such action has been taken.

             (3)  A charge or case must not be referred to a Defence Force magistrate otherwise than under this clause.

22  Judge Advocate General to nominate Defence Force magistrate

             (1)  A superior authority must not refer a charge to a Defence Force magistrate unless the Judge Advocate General has nominated the Defence Force magistrate to try the charge.

             (2)  A superior authority must not refer a case to a Defence Force magistrate to take action under Part IV in relation to a convicted person unless the Judge Advocate General has nominated the Defence Force magistrate to take action in relation to the person.

23  Jurisdiction and powers of Defence Force magistrate

             (1)  A Defence Force magistrate has the same jurisdiction and powers as a restricted court martial (including the powers of the judge advocate of a restricted court martial).

Note:          A charge or case may only be referred to a Defence Force magistrate under clause 21 of this Schedule: see subclause 21(3).

             (2)  A Defence Force magistrate also has jurisdiction to take action under Part IV in relation to a convicted person if the case has been referred to the magistrate under subclause 21(2) of this Schedule for that purpose.

Note:          If a case is referred to a Defence Force magistrate because of a direction under paragraph 31(4)(c) of this Schedule, the magistrate must hear evidence before taking action under Part IV: see subclause 31(5) of this Schedule.

24  Appointment of Defence Force magistrate

             (1)  The Judge Advocate General may, by instrument in writing, appoint an officer to be a Defence Force magistrate.

             (2)  An officer is not eligible to be a Defence Force magistrate unless the officer is a member of the judge advocates’ panel.

Note:          A member of the judge advocates’ panel is appointed for a maximum period of 3 years but is eligible for reappointment: see subsection 196(2A).

25  Oath or affirmation of Defence Force magistrate

             (1)  A Defence Force magistrate must, before proceeding to discharge the duties of his or her office, make and subscribe an oath or affirmation in accordance with the form in Schedule 4.

             (2)  An oath or affirmation under this clause must be made before the Judge Advocate General or an officer authorised, in writing, by the Judge Advocate General for the purpose.

Division 2Trial by Defence Force magistrate

26  Application of this Division

                   This Division sets out certain provisions relating to the trial of a charge by a Defence Force magistrate.

Note:          Part 3 of this Schedule and Division 3 of Part VIII contain other provisions relating to the trial.

27  Plea of guilty or not guilty

             (1)  Before the Defence Force magistrate begins to hear the evidence on the charge, the Defence Force magistrate must ask the accused person whether he or she pleads guilty or not guilty to the charge.

Plea of guilty

             (2)  If:

                     (a)  the accused person pleads guilty; and

                     (b)  the Defence Force magistrate is satisfied that the accused person understands the effect of the plea;

the Defence Force magistrate must convict the accused person.

             (3)  If:

                     (a)  the accused person pleads guilty; and

                     (b)  the Defence Force magistrate is not satisfied that the accused person understands the effect of the plea;

the Defence Force magistrate must record a plea of not guilty and proceed to hear the evidence on the charge.

             (4)  If the accused person pleads guilty to a service offence that is one (other than the first) of 2 or more charges stated in the charge sheet in the alternative, the Defence Force magistrate must:

                     (a)  if the Director of Military Prosecutions notifies the Defence Force magistrate that he or she does not object to the acceptance of the plea—accept the plea and convict the accused person; or

                     (b)  otherwise—record a plea of not guilty and proceed to hear the evidence on the charge.

Plea of not guilty etc.

             (5)  If the accused person pleads not guilty, the Defence Force magistrate must record a plea of not guilty and proceed to hear the evidence on the charge.

             (6)  If the accused person:

                     (a)  refuses to plead; or

                     (b)  does not plead intelligibly;

the Defence Force magistrate must record a plea of not guilty and proceed to hear the evidence on the charge.

             (7)  If:

                     (a)  the accused person pleads not guilty; and

                     (b)  the accused person later withdraws that plea and pleads guilty; and

                     (c)  the Defence Force magistrate is satisfied that the accused person understands the effect of the plea of guilty;

the Defence Force magistrate must substitute a plea of guilty for the plea of not guilty and proceed accordingly under this clause.

28  Sufficiency of evidence

             (1)  If the Defence Force magistrate, after hearing the evidence on the charge adduced by the prosecution, rules that the evidence is insufficient to support the charge, the Defence Force magistrate must dismiss the charge.

             (2)  If the Defence Force magistrate, after hearing the evidence on the charge adduced by the prosecution, rules that the evidence is sufficient to support the charge, the Defence Force magistrate must proceed with the trial.

             (3)  However, this clause does not require the Defence Force magistrate to give a ruling of the kind referred to in subclause (1) unless:

                     (a)  the accused person has submitted that the Defence Force magistrate should give a ruling of the kind referred to in subclause (1); or

                     (b)  the interests of justice require the Defence Force magistrate to give a ruling of the kind referred to in subclause (1).

             (4)  Also, this clause does not require the Defence Force magistrate to give a ruling of the kind referred to in subclause (2) unless the accused person has submitted that the Defence Force magistrate should give a ruling of the kind referred to in subclause (1).

29  Finding of guilty or not guilty

             (1)  If, after hearing evidence on the charge, the Defence Force magistrate finds the accused person guilty, the Defence Force magistrate must convict the accused person.

             (2)  If, after hearing evidence on the charge, the Defence Force magistrate finds the accused person not guilty, the Defence Force magistrate must acquit the accused person.

30  Action after conviction

             (1)  If the Defence Force magistrate convicts the accused person, the Defence Force magistrate must take action under Part IV in relation to the convicted person.

             (2)  Before taking action under Part IV, the Defence Force magistrate must hear any evidence relevant to the determination of the action that should be taken.

Division 3Discontinuance of proceeding

31  General provisions

             (1)  If a superior authority has referred a charge or case to a Defence Force magistrate under subclause 21(1) or (2) of this Schedule, the superior authority must terminate the reference if:

                     (a)  at a time before the Defence Force magistrate begins to try the charge or hear the case, it appears to the superior authority that, by reason of the exigencies of service, or for any other reason, it is desirable to terminate the reference; or

                     (b)  at a time after the Defence Force magistrate begins to try the charge or hear the case:

                              (i)  it appears to the Defence Force magistrate that it would not be in the interests of justice for the Defence Force magistrate to continue; and

                             (ii)  the Defence Force magistrate directs the superior authority to terminate the reference.

             (2)  If:

                     (a)  a superior authority has referred a charge or case to a Defence Force magistrate under subclause 21(1) or (2) of this Schedule; and

                     (b)  at a time after the Defence Force magistrate begins to try the charge or hear the case, the Defence Force magistrate is unable to conclude the trial of the charge or the hearing of the case because of death, illness, the exigencies of service or other circumstances;

the superior authority must terminate the reference.

             (3)  If a superior authority terminates a reference of a charge under subclause (1) or (2) at a time before the dismissal of the charge or the acquittal or conviction of the accused person, the superior authority must refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103E.

             (4)  If:

                     (a)  a superior authority terminates a reference of a charge under subclause (1) or (2) after an accused person has been convicted but before action has been taken under Part IV in relation to the person; or

                     (b)  a superior authority terminates a reference of a case under subclause (1) or (2) before action has been taken under Part IV in relation to a convicted person;

the Director of Military Prosecutions may direct the superior authority:

                     (c)  to refer the charge or case to a Defence Force magistrate to take action under Part IV in relation to the person; or

                     (d)  if the Director of Military Prosecutions considers that it would be more appropriate for the matter to be dealt with by a court martial—to convene a court martial to take action under Part IV in relation to the person.

Note:          A charge or case referred to a Defence Force magistrate must be referred to the Defence Force magistrate nominated by the Judge Advocate General: see clause 22 of this Schedule.

             (5)  Before taking action in accordance with subclause (4), a court martial or a Defence Force magistrate must hear any evidence relevant to the determination of the action that should be taken.

             (6)  In this clause, a reference to a superior authority (the first superior authority) includes a reference to any superior authority who replaces the first superior authority.

32  Application for charge to be tried by the Military Court

             (1)  At any time before an accused person is asked to plead to a charge (the first charge) at a trial by a Defence Force magistrate, the accused person may apply for the reference of the first charge to the Defence Force magistrate to be terminated on the ground that, due to a change in circumstances, it would be possible for the charge, and all other charges (if any) being dealt with together with the first charge, to be tried by the Military Court.

             (2)  If:

                     (a)  the accused person makes an application under subclause (1); and

                     (b)  the Defence Force magistrate is satisfied that, due to the change in circumstances, it would be possible for the charge or charges to be tried by the Military Court;

the Defence Force magistrate must grant the application and direct the superior authority who referred each charge to the Defence Force magistrate to terminate the reference.

             (3)  If a superior authority terminates a reference of a charge under subclause (2), the superior authority must refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103E.

Part 3Procedure for trials

Division 1General

Note:       See also Division 3 of Part VIII.

33  Public hearings

             (1)  Subject to this clause, the hearing of proceedings before a court martial or a Defence Force magistrate must be in public.

             (2)  In proceedings before a court martial or a Defence Force magistrate, the President of the court martial or the Defence Force magistrate (as the case may be) may, if he or she considers it necessary in the interests of the security or defence of Australia, the proper administration of justice or public morals:

                     (a)  order that some or all of the members of the public be excluded during the whole or a specified part of the proceedings; or

                     (b)  order that no report of, or relating to, the whole or a specified part of the proceedings be published.

             (3)  The President of a court martial must not make an order under subclause (2) unless the President has first consulted the judge advocate.

             (4)  If proceedings before a court martial or a Defence Force magistrate are held in a secure place, the appropriate service chief must cause such steps to be taken as will permit the public to have reasonable access, subject to an order (if any) in force under subclause (2), to the proceedings.

             (5)  In subclause (4), secure place means a place the entry to which is controlled by guards who are constables or members of the Defence Force.

34  Unfitness to be tried

                   If, in a trial of a charge of a service offence, it appears to the court martial or the Defence Force magistrate (whether on the basis of evidence or otherwise) that the accused person may not be able to understand the proceedings against him or her and accordingly may be unfit to be tried, the court martial or the Defence Force magistrate must refer the charge to the Director of Military Prosecutions.

Note:          The Director of Military Prosecutions may deal with the charge under section 103.

35  Mental impairment at time of conduct constituting service offence

Prescribed acquittal

             (1)  If, in a trial of a charge of a service offence, the court martial or the Defence Force magistrate finds that the accused person, at the time of carrying out the conduct constituting the service offence, was suffering from such mental impairment as not to be responsible for that conduct, the court martial or the Defence Force magistrate must:

                     (a)  find the accused person not guilty of the service offence because of mental impairment; and

                     (b)  acquit the person of the service offence.

             (2)  For the purpose of applying section 7.3 of the Criminal Code in relation to a proceeding before a court martial or a Defence Force magistrate, subsection 7.3(4) has effect as if the reference to the court were a reference to the court martial or the Defence Force magistrate (as the case may be).

             (3)  If a court martial or a Defence Force magistrate acquits a person (the prescribed acquitted person) of a service offence under subclause (1), the court martial or the Defence Force magistrate may:

                     (a)  by order, release the prescribed acquitted person:

                              (i)  into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or

                             (ii)  on condition that the prescribed acquitted person attend on another person, or at a place, specified by the court martial or the Defence Force magistrate for assessment of the prescribed acquitted person’s mental impairment, or for treatment, or both, but so that the total period for which the prescribed acquitted person is required to attend on that other person or at that place does not exceed 3 years; or

                            (iii)  unconditionally; or

                     (b)  make any other order the court martial or the Defence Force magistrate considers necessary, having regard to:

                              (i)  the best interests of the prescribed acquitted person; and

                             (ii)  the safety of any other person to whom the order relates; and

                            (iii)  the safety of the community generally.

             (4)  An order under paragraph (3)(b) must specify the period, not exceeding 3 years, during which it is to have effect.

Order relating to prescribed acquitted person may be varied or set aside

             (5)  The Director of Military Prosecutions or a prescribed acquitted person to whom an order subsection (3) relates may apply for the order to be varied or set aside.

             (6)  An application under subsection (5) must be made:

                     (a)  if the prescribed acquitted person is a defence member at the time of the application—to a service chief; or

                     (b)  in any other case—to the Attorney‑General.

             (7)  If an application is made under subsection (5) to a service chief or the Attorney‑General, the service chief or the Attorney‑General (as the case may be) may vary or set aside the order to which the application relates.

36  Notice of alibi

             (1)  If a superior authority:

                     (a)  convenes a court martial to try a charge; or

                     (b)  refers a charge to a Defence Force magistrate for trial;

the superior authority must:

                     (c)  inform the accused person of the requirements of subclauses (2), (3) and (5); and

                     (d)  give a copy of this clause to the accused person.

             (2)  In a trial of a charge by a court martial or a Defence Force magistrate, the accused person must not, without the leave of the judge advocate of the court martial or the Defence Force magistrate (as the case may be):

                     (a)  adduce evidence in support of an alibi; or

                     (b)  assert in any statement made by him or her otherwise than on oath or affirmation that he or she has an alibi;

unless he or she gives notice of particulars of the alibi before the end of the period of 14 days that starts on the day of the making of the order convening the court martial or the referring of the charge to the Defence Force magistrate (as the case may be).

             (3)  In a trial of a charge by a court martial or a Defence Force magistrate, the accused person must not, without the leave of the judge advocate of the court martial or the Defence Force magistrate (as the case may be), call a person to give evidence in support of an alibi unless:

                     (a)  the notice given under subclause (2) includes the name and address of the person or, if the name or address of the person is not known to the accused person at the time he or she gives the notice, all information then in his or her possession that may be of material assistance in ascertaining the identity of, or in locating, the person; and

                     (b)  if the name or address of the person is not included in the notice—the judge advocate of the court martial or the Defence Force magistrate (as the case may be) is satisfied that, before giving notice, the accused person took, and, after giving the notice, the accused person continued to take, all reasonable steps to ascertain the name and address of the person; and

                     (c)  if the name or address of the person is not included in the notice, but the accused person subsequently ascertains the name or address of the person or receives information that may be of material assistance in ascertaining the identity of, or in locating, the person—the accused person gives notice of the name, address or other information (as the case may be) within a reasonable time; and

                     (d)  if the accused person is notified by or on behalf of the prosecution that the person has not been found by the name, or at the address, given by the accused person:

                              (i)  the accused person gives notice of all information that is then in his or her possession that may be of material assistance in ascertaining the identity of, or in locating, the person; and

                             (ii)  if the accused person subsequently receives any such information, the accused person gives notice of the information within a reasonable time.

             (4)  Evidence to disprove an alibi may, subject to any direction by the judge advocate of a court martial or a Defence Force magistrate, be adduced before or after evidence is adduced in respect of the alibi.

             (5)  A notice under this clause must be given in writing to the Director of Military Prosecutions and the superior authority.

             (6)  In this clause, evidence in support of an alibi means evidence tending to show that by reason only of the presence of the accused person at a particular place, or in a particular area, at a particular time the accused person was not, or was unlikely to have been, at the place where the service offence is alleged to have been committed at the time of the alleged commission of the service offence.

37  Rules of evidence etc.

             (1)  The rules of evidence that apply in relation to proceedings before the Military Court apply in relation to proceedings before a court martial or a Defence Force magistrate as if:

                     (a)  the court martial or the Defence Force magistrate were a court; and

                     (b)  the proceedings before the court martial or the Defence Force magistrate were criminal proceedings before a court.

             (2)  In addition to the matters of which judicial notice may be taken by a court under the rules of evidence referred to in subclause (1), a court martial or a Defence Force magistrate must take judicial notice of all matters within the general service knowledge of:

                     (a)  in the case of a court martial—the judge advocate or the members of the court martial; or

                     (b)  in the case of a Defence Force magistrate—the Defence Force magistrate.

38  Representatives of parties before court martial or Defence Force magistrate

                   A person must not represent a party in a trial before a court martial or a Defence Force magistrate unless the person is:

                     (a)  a member of the Defence Force; or

                     (b)  a legal practitioner; or

                     (c)  a person qualified to practise before the courts of the place where the trial is held.

Division 2Use of video links and audio links

39  Testimony by video link or audio link

             (1)  The President of a court martial or a Defence Force magistrate may, for the purposes of proceedings before the court martial or the Defence Force magistrate, direct or allow testimony to be given by video link or audio link.

             (2)  The testimony must be given on oath or affirmation unless:

                     (a)  the person giving the testimony is in a foreign country; and

                     (b)  either:

                              (i)  the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceedings; or

                             (ii)  the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceedings; and

                     (c)  the President or the Defence Force magistrate is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

             (3)  If the testimony is given otherwise than on oath or affirmation, the court martial or the Defence Force magistrate is to give the testimony such weight as the court martial or the Defence Force magistrate thinks fit in the circumstances.

             (4)  The power conferred on the President of a court martial or a Defence Force magistrate by subclause (1) may be exercised:

                     (a)  on the application of the accused person or the Director of Military Prosecutions; or

                     (b)  on the initiative of the President of the court martial or the Defence Force magistrate.

             (5)  This clause applies whether the person giving testimony is in or outside Australia.

40  Appearance of persons or submissions made by video link or audio link

             (1)  The President of a court martial or a Defence Force magistrate may, for the purposes of proceedings before the court martial or the Defence Force magistrate, direct or allow a person:

                     (a)  to appear before the court martial or the Defence Force magistrate; or

                     (b)  to make a submission to the court martial or the Defence Force magistrate;

by way of video link or audio link.

             (2)  The power conferred by subclause (1) may be exercised:

                     (a)  on the application of the accused person or the Director of Military Prosecutions; or

                     (b)  on the initiative of the President of the court martial or the Defence Force magistrate.

             (3)  This clause applies whether the person appearing is in or outside Australia.

41  Conditions for use of video links and audio links

Video link

             (1)  The President of a court martial or a Defence Force magistrate must not exercise the power conferred by subclause 39(1) or 40(1) of this Schedule in relation to a video link unless the President or the Defence Force magistrate is satisfied that the following conditions are met in relation to the video link:

                     (a)  the courtroom or other place where the court martial or the Defence Force magistrate is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is:

                              (i)  giving the testimony; or

                             (ii)  appearing; or

                            (iii)  making the submission;

                            by way of the video link;

                     (b)  the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the court martial or the Defence Force magistrate is sitting;

                     (c)  such other conditions (if any) as are prescribed by the Court Martial and Defence Force Magistrate Rules in relation to the video link;

                     (d)  such other conditions (if any) as are imposed by the court martial or the Defence Force magistrate.

             (2)  The conditions that may be prescribed by the Court Martial and Defence Force Magistrate Rules in accordance with paragraph (1)(c) include conditions relating to:

                     (a)  the form of the video link; and

                     (b)  the equipment, or class of equipment, used to establish the link; and

                     (c)  the layout of cameras; and

                     (d)  the standard of transmission; and

                     (e)  the speed of transmission; and

                      (f)  the quality of communication.

Audio link

             (3)  The President of a court martial or a Defence Force magistrate must not exercise the power conferred by subclause 39(1) or 40(1) of this Schedule in relation to an audio link unless the President or the Defence Force magistrate is satisfied that the following conditions are met in relation to the audio link:

                     (a)  the courtroom or other place where the court martial or the Defence Force magistrate is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person) who is:

                              (i)  giving the testimony; or

                             (ii)  appearing; or

                            (iii)  making the submission;

                            by way of the audio link;

                     (b)  the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the court martial or the Defence Force magistrate is sitting;

                     (c)  such other conditions (if any) as are prescribed by the Court Martial and Defence Force Magistrate Rules in relation to the audio link;

                     (d)  such other conditions (if any) as are imposed by the court martial or the Defence Force magistrate.

             (4)  The conditions that may be prescribed by the Court Martial and Defence Force Magistrate Rules in accordance with paragraph (3)(c) include conditions relating to:

                     (a)  the form of the audio link; and

                     (b)  the equipment, or class of equipment, used to establish the audio link; and

                     (c)  the standard of transmission; and

                     (d)  the speed of transmission; and

                     (e)  the quality of communication.

Eligible persons

             (5)  For the purposes of the application of this clause to particular proceedings, eligible persons are such persons as the court martial or the Defence Force magistrate conducting the proceedings considers should be treated as eligible persons for the purposes of the proceedings.

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

                   If, in the course of an examination or appearance of a person by video link or audio link in accordance with this Division, it is necessary to put a document to the person, the President or the Defence Force magistrate may direct or allow the document to be put to the person:

                     (a)  if the document is physically present in the courtroom or other place where the court martial or the Defence Force magistrate is sitting:

                              (i)  by causing a copy of the document to be transmitted to the place where the person is located; and

                             (ii)  by causing the transmitted copy to be put to the person; or

                     (b)  if the document is physically present in the place where the person is located:

                              (i)  by causing the document to be put to the person; and

                             (ii)  by causing a copy of the document to be transmitted to the courtroom or other place where the court martial or the Defence Force magistrate is sitting.

43  Administration of oaths and affirmations

                   An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give testimony by video link or audio link in accordance with this Division may be administered:

                     (a)  by means of the video link or audio link (as the case may be) in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the court martial or the Defence Force magistrate is sitting; or

                     (b)  if the court martial or the Defence Force magistrate allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

44  Powers conferred on President

                   A President must seek the advice of a judge advocate before exercising a power conferred upon the President by this Division.

45  Evidence of certain New Zealand matters

                   This Division does not affect the operation of the Evidence and Procedure (New Zealand) Act 1994.

Division 3Rules of procedure

46  The Court Martial and Defence Force Magistrate Rules

                   The Judge Advocate General may, by legislative instrument, make rules, to be known as the Court Martial and Defence Force Magistrate Rules, providing for:

                     (a)  the practice and procedure to be followed by a court martial or a Defence Force magistrate and, in particular, providing for:

                              (i)  pre‑trial hearings and directions; and

                             (ii)  the attendance of witnesses; and

                            (iii)  the giving of testimony and other evidence; and

                            (iv)  the production of documents; and

                             (v)  the administration of oaths and affirmations; and

                            (vi)  the forms to be used in relation to proceedings before the court martial or the Defence Force magistrate; and

                           (vii)  the service of any process of the court martial or the Defence Force magistrate; and

                          (viii)  charge sheets in proceedings before the court martial or the Defence Force magistrate; and

                            (ix)  the manner and form of charges brought before the court martial or the Defence Force magistrate; and

                             (x)  the recording of proceedings of the court martial or the Defence Force magistrate; and

                            (xi)  the duties of a superior authority in respect of the practice and procedure of the court martial or the Defence Force magistrate; and

                           (xii)  the maintenance of the customs and traditions of the Defence Force in proceedings before the court martial or the Defence Force magistrate; and

                     (b)  any matter required or permitted by this Act to be prescribed by the Rules.

Part 4Appeals and references to the Military Court

Division 1Interpretation

47  Interpretation

             (1)  In this Part:

appeal means an appeal under this Part.

convicted person means a person who has been convicted of a service offence by a court martial or a Defence Force magistrate under this Schedule.

conviction means a conviction of a person of a service offence by a court martial or a Defence Force magistrate under this Schedule.

Full Court has the same meaning as in the Military Court Act.

Judge has the same meaning as in the Military Court Act.

judgement has the same meaning as in the Military Court Act.

Military Court Rules has the same meaning as in the Military Court Act.

trial proceedings, in relation to an appeal, means the proceedings before a court martial or a Defence Force magistrate that resulted in the conviction, punishment, prescribed acquittal or order being appealed against.

             (2)  For the purposes of this Part, if:

                     (a)  a person is convicted of a service offence in proceedings before a court martial or a Defence Force magistrate; and

                     (b)  in a review of the proceedings, the reviewing authority substitutes for the conviction a conviction of another service offence;

the conviction is taken to have been determined by the court martial or the Defence Force magistrate.

             (3)  For the purposes of this Part, if:

                     (a)  a person is convicted of a service offence in proceedings before a court martial or a Defence Force magistrate; and

                     (b)  in a review of the proceedings, the reviewing authority takes such action in relation to the convicted person as could have been taken under Part IV by the court martial or the Defence Force magistrate;

the action taken by the reviewing authority is taken to have been taken under Part IV by the court martial or the Defence Force magistrate.

             (4)  For the purposes of this Part, if:

                     (a)  a person is convicted of a service offence in proceedings before a court martial or a Defence Force magistrate; and

                     (b)  in a review of the proceedings, the reviewing authority:

                              (i)  substitutes for the conviction an acquittal of the person of the service offence because of mental impairment; and

                             (ii)  makes an order under subsection 158A(4) in respect of the acquitted person;

the acquittal by the reviewing authority is taken to have been a prescribed acquittal determined by the court martial or the Defence Force magistrate, and the order is taken to have been made by the court martial or the Defence Force magistrate under subclause 35(3) of this Schedule.

Division 2Bringing appeals

48  Allowable appeals

                   The Military Court has jurisdiction to hear and determine appeals, brought in accordance with this Part, from certain determinations and orders of a court martial or a Defence Force magistrate.

Note 1:       The jurisdiction is part of the Military Court’s original jurisdiction: see subsection 63(3) of the Military Court Act. Except in relation to certain matters, the jurisdiction must be exercised by a Full Court: see paragraph 65(2)(b) and subsection 65(4) of the Military Court Act, and clause 55 and subclauses 64(2) and 68(2) of this Schedule.

Note 2:       This provision is affected by subclauses 47(2), (3) and (4) of this Schedule.

49  Leave to appeal

                   An appeal must not be brought to the Military Court unless:

                     (a)  a Judge gives leave to appeal; or

                     (b)  the appeal involves a question of law alone.

50  Who may appeal

Appeal by convicted person

             (1)  A convicted person may do any of the following:

                     (a)  make an application referred to in clause 55 of this Schedule in relation to:

                              (i)  the conviction; or

                             (ii)  a punishment imposed on the person in respect of the conviction; or

                            (iii)  a restitution order or a reparation order made in respect of the conviction;

                     (b)  in accordance with this Part, bring an appeal against a conviction, punishment or order referred to in paragraph (a).

Appeal by prescribed acquitted person

             (2)  A prescribed acquitted person may do any of the following:

                     (a)  make an application referred to in clause 55 of this Schedule in relation to:

                              (i)  the prescribed acquittal; or

                             (ii)  an order made under subclause 35(3) (other than under subparagraph 35(3)(a)(iii)) of this Schedule;

                     (b)  in accordance with this Part, bring an appeal against:

                              (i)  the prescribed acquittal; or

                             (ii)  an order made under subclause 35(3) (other than under subparagraph 35(3)(a)(iii)) of this Schedule.

             (3)  However, a prescribed acquitted person must not:

                     (a)  make an application under subparagraph (2)(a)(i); or

                     (b)  bring an appeal under subparagraph (2)(b)(i);

if, in the trial proceedings that resulted in the prescribed acquittal or in a review of those proceedings, evidence of the mental impairment of the prescribed acquitted person was adduced by the defence.

Appeal by Director of Military Prosecutions

             (4)  The Director of Military Prosecutions may do any of the following:

                     (a)  make an application referred to in clause 55 of this Schedule in relation to:

                              (i)  a punishment imposed in respect of a conviction; or

                             (ii)  an order that a conviction be recorded without punishment; or

                            (iii)  a restitution order or a reparation order made in respect of a conviction;

                     (b)  in accordance with this Part, bring an appeal against a punishment or order referred to in paragraph (a).

Note:          The Director of Military Prosecutions may not make an application in relation to or bring an appeal against:

(a)    a determination of a court martial or a Defence Force magistrate acquitting a person of a service offence (including a prescribed acquittal); or

(b)    an order made under subclause 35(3) of this Schedule in relation to a prescribed acquitted person; or

(c)    a decision not to make such an order.

51  Instituting an appeal

             (1)  An appeal is to be instituted by filing a notice of appeal in the Military Court.

             (2)  The notice of appeal must:

                     (a)  be in accordance with the Military Court Rules; and

                     (b)  specify the grounds on which the appeal is instituted.

52  Time for appealing—convicted person or prescribed acquitted person

             (1)  This clause applies in relation to:

                     (a)  an application for leave to appeal; or

                     (b)  a notice of appeal for an appeal involving a question of law alone;

proposed to be filed by a convicted person or a prescribed acquitted person (the appellant).

             (2)  The application or notice must be filed in the Military Court within the period (the initial appeal period) of 30 days beginning at the end of the day on which the appellant is given notice of the results of the review under section 152 of the trial proceedings to which that appeal relates.

             (3)  However, if before the end of the initial appeal period the appellant lodges a petition under section 153 for a review of the trial proceedings, the application or notice may be filed in the Military Court at any time before the end of the period (the extended appeal period) of 30 days beginning at the end of the day on which the appellant is given notice of the results of that review.

             (4)  Also, if a review of the trial proceedings under section 155 commences during the initial appeal period or, if applicable, the extended appeal period, the application or notice may be filed in the Military Court within the period of 30 days beginning at the end of the day on which the appellant is given notice of the results of that review.

             (5)  The Military Court may, by order, extend (or further extend) the period within which the application or notice may be filed if the Military Court is satisfied it is in the interests of justice to do so.

             (6)  Despite anything else in this clause, the application or notice must not be filed in the Military Court before the day on which the appellant is given notice of the results of the review of the trial proceedings under section 152.

53  Time for appealing—Director of Military Prosecutions

             (1)  This clause applies in relation to:

                     (a)  an application for leave to appeal; or

                     (b)  a notice of appeal for an appeal involving a question of law alone;

proposed to be filed by the Director of Military Prosecutions in relation to trial proceedings that have resulted in a conviction.

             (2)  The application or notice must be filed in the Military Court within the period (the initial prosecution appeal period) of 30 days beginning at the end of the initial appeal period under subclause 52(2) of this Schedule.

             (3)  However, if the convicted person lodges a petition under section 153 for a review of the trial proceedings before the end of the initial prosecution appeal period, the application or notice may be filed within the period (the extended prosecution appeal period) of 30 days beginning at the end of the day on which that review is completed.

             (4)  Also, if a review of the trial proceedings under section 155 commences before the end of the initial prosecution appeal period or, if applicable, during the extended prosecution appeal period, the application or notice may be filed in the Military Court within the period of 30 days beginning at the end of the day on which that review is completed.

             (5)  The Military Court may, by order, extend (or further extend) the period within which the application or notice may be filed if the Military Court is satisfied it is in the interests of justice to do so.

             (6)  Despite anything else in this clause, if a petition for review under section 153 is lodged or a review under section 155 is commenced in relation to the trial proceedings, the application or notice must not be filed in the Military Court at any time:

                     (a)  after the petition under section 153 is lodged or the review under section 155 is commenced (as the case may be); and

                     (b)  before the end of the day on which the review is completed.

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

             (1)  If a convicted person appeals to the Military Court against his or her conviction, or against a punishment imposed or an order made in respect of his or her conviction:

                     (a)  any review of the trial proceedings relating to the appeal that was in progress under Part VIIIA on the day the notice of appeal is filed must be discontinued, to the extent that the review relates to the conviction or to any punishment imposed or order made in respect of the conviction; and

                     (b)  no further review of the trial proceedings relating to the appeal, to the extent that the trial proceedings relate to the conviction or to any punishment imposed or order made in respect of the conviction, may be conducted under that Part.

             (2)  If a prescribed acquitted person appeals to the Military Court against his or her prescribed acquittal or against an order made in respect of his or her prescribed acquittal:

                     (a)  any review of the trial proceedings relating to the appeal that was in progress under Part VIIIA on the day the notice of appeal is filed must be discontinued, to the extent that the review relates to the prescribed acquittal; and

                     (b)  no further review of the trial proceedings relating to the appeal, to the extent that the trial proceedings relate to the prescribed acquittal, may be conducted under that Part.

             (3)  If the Director of Military Prosecutions appeals to the Military Court against a punishment imposed or an order made in respect of a conviction, no review of the trial proceedings relating to the appeal, to the extent that the trial proceedings relate to the conviction or to any punishment imposed or order made in respect of the conviction, may be conducted under Part VIIIA.

             (4)  For the purposes of this clause, trial proceedings includes any review of those proceedings completed under Part VIIIA before the notice of appeal was filed.

55  Certain applications to be heard by single Judge

                   An application:

                     (a)  for leave to appeal to the Military Court; or

                     (b)  for an extension of time within which to file:

                              (i)  an application for leave to appeal to the Military Court; or

                             (ii)  a notice of appeal to the Military Court; or

                     (c)  for leave to amend the grounds of an appeal to the Military Court; or

                     (d)  for the Military Court to make an order under clause 57 of this Schedule (which deals with stay of a determination or order); or

                     (e)  for leave under paragraph 64(1)(c) of this Schedule to adduce further evidence in the Military Court;

must be heard and determined by a single Judge unless:

                      (f)  a Judge directs that the application be heard and determined by a Full Court; or

                     (g)  the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

56  Suspension of operation of restitution orders and reparation orders

                   The operation of a restitution order or a reparation order made by a court martial or a Defence Force magistrate is suspended:

                     (a)  unless paragraph (b) applies, until the end of the period during which, under subclause 52(2) of this Schedule, an application for leave to appeal, or a notice of appeal, against the order, or against the conviction in relation to which the order was made, may be filed; and

                     (b)  if an application for leave to appeal, or a notice of appeal, against the order or the conviction is filed by the convicted person before the end of the period referred to in subclause 52(2) of this Schedule—until the appeal is finally determined or is dismissed, withdrawn or abandoned.

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

             (1)  If an application for leave to appeal, or a notice of appeal, is filed, the Military Court may make an order, on such conditions (if any) as the Military Court thinks fit, to stay or otherwise affect the operation or implementation of a determination or order made in, or in relation to, the trial proceedings to which the application or notice of appeal relates.

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

58  Right to attend

                   The convicted person or the prescribed acquitted person (as the case may be) and the Director of Military Prosecutions are each entitled to be present at the hearing of an appeal, unless:

                     (a)  the Military Court orders otherwise; or

                     (b)  the Military Court directs or allows the convicted person, the prescribed acquitted person or the Director of Military Prosecutions (as the case may be) to appear by video link, audio link or other appropriate means in accordance with Division 5 of Part 11 of the Military Court Act.

59  Custody and bail

                   Part 8 of the Military Court Act (which deals with custody and bail) applies in relation to an appeal as if:

                     (a)  a reference to an accused person were a reference to the person who was the accused person in the proceeding appealed from; and

                     (b)  a reference to a proceeding in respect of the charge of a service offence were a reference to the appeal.

Division 3Powers of Military Court on appeal

60  Military Court may give such judgement as is appropriate

             (1)  The Military Court may, by order, when exercising its jurisdiction under this Part:

                     (a)  dismiss or allow the appeal; and

                     (b)  take such other action as it thinks appropriate in the circumstances.

             (2)  Without limiting subclause (1), the other action the Military Court may take if it allows an appeal includes the action set out in clauses 61, 62 and 63 of this Schedule.

61  Appeals against convictions

             (1)  The Military Court must allow an appeal against a conviction if the Military Court is satisfied:

                     (a)  that the conviction should be set aside on the ground of a wrong decision of any question of law; or

                     (b)  that there has been a substantial miscarriage of justice.

             (2)  However, the Military Court may dismiss the appeal if the Military Court is satisfied:

                     (a)  of the matter in paragraph (1)(a); and

                     (b)  that there has not been a substantial miscarriage of justice.

             (3)  If the Military Court allows an appeal against a person’s conviction, the Military Court may:

                     (a)  set aside the conviction; or

                     (b)  acquit the person of the charge.

Note:          If the Military Court sets aside a conviction, the Director of Military Prosecutions may institute a proceeding for a new trial in respect of the charge in the Military Court or direct that the charge be not proceeded with: see section 103F.

62  Appeals against punishments and orders

Appeals against punishments

             (1)  The Military Court must allow an appeal against a punishment imposed on a convicted person if the Military Court is satisfied that some other punishment (whether more or less severe) is warranted in law.

             (2)  If the Military Court allows an appeal against a punishment imposed on a convicted person, the Military Court may do one or both of the following:

                     (a)  set aside the punishment;

                     (b)  take action under Part 9 of the Military Court Act in relation to the person.

             (3)  For the purposes of taking action in relation to a convicted person under paragraph (2)(b), Part 9 of the Military Court Act applies as if the person had been convicted by the Military Court.

             (4)  The Military Court may set aside a punishment under paragraph (2)(a) only if:

                     (a)  the Military Court could have imposed the punishment on the person under Part 9 of the Military Court Act if the person had been convicted by the Military Court; or

                     (b)  the punishment was imposed as the result of an error of law.

Appeals against orders that conviction be recorded without punishment

             (5)  The Military Court must allow an appeal against an order that a conviction be recorded without punishment if the Military Court is satisfied that a punishment is warranted in law.

             (6)  If the Military Court allows an appeal against an order that a conviction be recorded without punishment, the Military Court may:

                     (a)  set aside the order; and

                     (b)  if the convicted person gave an undertaking under subsection 75(2) of this Act in relation to the order—set aside the undertaking; and

                     (c)  take action under Part 9 of the Military Court Act in relation to the convicted person.

             (7)  For the purposes of taking action in relation to a convicted person under paragraph (6)(c), Part 9 of the Military Court Act applies as if the person had been convicted by the Military Court.

Appeals against restitution orders or reparation orders

             (8)  The Military Court may allow an appeal against a restitution order or a reparation order if the Military Court is satisfied it is in the interests of justice to do so.

             (9)  If the Military Court allows an appeal against a restitution order or a reparation order, the Military Court may:

                     (a)  set aside the order; or

                     (b)  vary the order.

63  Appeals against prescribed acquittals and orders

Appeals against prescribed acquittals

             (1)  The Military Court may allow an appeal against a prescribed acquittal if the Military Court is satisfied it is in the interests of justice to do so.

             (2)  If the Military Court allows an appeal against a prescribed acquittal, the Military Court may set aside the prescribed acquittal.

Note:          If the Military Court sets aside a prescribed acquittal, the Director of Military Prosecutions may institute a proceeding for a new trial in respect of the charge in the Military Court or direct that the charge be not proceeded with: see section 103F.

Appeals against other orders

             (3)  The Military Court may allow an appeal against an order made under subclause 35(3) of this Schedule in relation to a prescribed acquitted person if the Military Court is satisfied it is in the interests of justice to do so.

             (4)  If the Military Court allows an appeal against an order made under subclause 35(3) of this Schedule in relation to a prescribed acquitted person, the Military Court may:

                     (a)  set aside the order; and

                     (b)  make an order under subsection 154(2) of the Military Court Act in relation to the prescribed acquitted person.

             (5)  For the purposes of making an order in relation to a prescribed acquitted person under subsection 154(2) of the Military Court Act, that subsection applies as if the person had been acquitted by the Military Court in the circumstances referred to in subsection (1) of that section.

64  Evidence on appeal

             (1)  In an appeal, the Military Court:

                     (a)  must have regard to the evidence given in the trial proceedings and any additional evidence considered by a reviewing authority; and

                     (b)  may draw inferences of fact; and

                     (c)  may, if satisfied it is in the interests of justice to do so, grant leave for further evidence to be adduced, which may be taken:

                              (i)  on affidavit; or

                             (ii)  by video link, audio link or other appropriate means in accordance with Division 5 of Part 11 of the Military Court Act or another law of the Commonwealth; or

                            (iii)  by oral examination before the Military Court.

Note:          Paragraph (c) does not require the Military Court to receive further evidence, for example, if the failure to adduce the evidence during the trial is not satisfactorily explained.

             (2)  The Military Court may receive further evidence under paragraph (1)(c) by:

                     (a)  directing the evidence be taken by a single Judge; and

                     (b)  having regard to the findings of that Judge in relation to that evidence.

65  Costs

Appeals by convicted persons or prescribed acquitted persons

             (1)  If the Military Court allows an appeal by a convicted person or a prescribed acquitted person (the appellant), the Military Court may, if it considers it appropriate, order the Commonwealth to pay to the appellant such amount as the Military Court considers to be reasonably sufficient to compensate the appellant for expenses properly incurred by him or her:

                     (a)  in the prosecution of his or her appeal and any proceedings preliminary or incidental to the appeal; or

                     (b)  in carrying on his or her defence against the charge or charges out of which the appeal arose.

             (2)  If the Military Court dismisses an appeal, or an application for leave to appeal, by a convicted person or a prescribed acquitted person (the appellant), the Military Court may, if it considers it appropriate, order the appellant to pay to the Commonwealth the whole or any part of the costs of the appeal or application, including:

                     (a)  any allowances paid to a witness; and

                     (b)  the costs of copying or transcribing any documents for the use of the Military Court.

Appeals by Director of Military Prosecutions

             (3)  If the Military Court allows an appeal by the Director of Military Prosecutions in relation to a conviction, the Military Court may, if it considers it appropriate, order the convicted person to pay to the Commonwealth the whole or any part of the costs of the appeal, including:

                     (a)  any allowances paid to a witness; and

                     (b)  the costs of copying or transcribing any documents for the use of the Military Court.

             (4)  If the Military Court dismisses an appeal, or an application for leave to appeal, by the Director of Military Prosecutions in relation to a conviction, the Military Court may, if it considers it appropriate, order the Commonwealth to pay to the convicted person such amount as the Military Court considers to be reasonably sufficient to compensate the convicted person for expenses properly incurred by him or her:

                     (a)  in responding to the appeal and any proceedings preliminary or incidental to the appeal; or

                     (b)  in carrying on his or her defence against the charge or charges out of which the appeal arose.

66  Person taken to have been acquitted

                   For the purposes of this Act and the Military Court Act:

                     (a)  if the Military Court makes an order setting aside a conviction of a person of a service offence and the Director of Military Prosecutions directs that the charge of the service offence be not proceeded with, the person is taken to have been acquitted of the service offence; and

                     (b)  if the Military Court makes an order setting aside a prescribed acquittal of a person of a service offence and the Director of Military Prosecutions directs that the charge of the service offence be not proceeded with, the person is taken to have been acquitted of the service offence without qualification.

Note:          If the Director of Military Prosecutions does not direct that the charge be not proceeded with, or institute a proceeding in respect of the charge in the Military Court, within 2 months after the order setting aside the conviction or prescribed acquittal of the service offence was made, the Director of Military Prosecutions is taken to have directed, on the day after the end of the 2 month period, that the charge against the person be not proceeded with: see subsection 103F(3).

Division 4References to the Military Court

67  Reference of question of law during trial

             (1)  The judge advocate of a court martial, or a Defence Force magistrate, may refer to the Military Court for decision a question of law arising in a proceeding before the court martial or the Defence Force magistrate.

             (2)  A question of law may be referred under subclause (1) on the initiative of the judge advocate or the Defence Force magistrate, or at the request of any of the following:

                     (a)  the accused person;

                     (b)  the Director of Military Prosecutions;

                     (c)  the Chief of the Defence Force;

                     (d)  a service chief.

             (3)  The Military Court has jurisdiction to hear and determine a question of law referred to it under this clause, and that jurisdiction must be exercised by a Full Court.

             (4)  If a question of law arising in a proceeding before a court martial or a Defence Force magistrate has been referred to the Military Court under this clause, the court martial or the Defence Force magistrate must not, in that proceeding:

                     (a)  give a decision to which the question is relevant while the reference is pending; or

                     (b)  proceed in a manner, or make a decision, that is inconsistent with the opinion of the Military Court on the question.

68  Reference of question of law after trial

             (1)  The Director of Military Prosecutions may apply to the Military Court for leave to refer, to a Full Court for its determination, a question of law arising from:

                     (a)  a determination of a court martial or a Defence Force magistrate acquitting a person (including because of mental impairment); or

                     (b)  a determination of a reviewing authority, made in a review of proceedings before a court martial or a Defence Force magistrate, that:

                              (i)  acquits a person of a service offence because of mental impairment; or

                             (ii)  because of section 159 or 165, results in a person being taken to have been acquitted of a service offence for the purposes of this Act.

             (2)  The application must be heard and determined by a single Judge unless a Judge directs that the application be heard and determined by a Full Court.

             (3)  If leave is granted, both the Director of Military Prosecutions and the person may make submissions to the Full Court in relation to the Military Court’s determination on the question of law.

             (4)  A determination made by the Military Court on the question of law does not affect the person’s acquittal.

             (5)  The Military Court has jurisdiction to hear and determine a question of law referred to the Military Court under this clause.

Division 5Other matters

69  Sending documents to the Military Court

                   If a notice of appeal is filed in the Military Court, or a question of law is referred to the Military Court under clause 67 or 68 of this Schedule:

                     (a)  the Director of Military Prosecutions must give the Military Court all documents and other records relating to the trial proceedings to which the appeal or reference relates; and

                     (b)  the Chief of the Defence Force must give the Military Court all documents and other records relating to any review of the trial proceedings to which the appeal or reference relates; and

                     (c)  at the conclusion of the appeal or the trial proceedings relating to the reference, the Military Court must return each document or other record to the Director of Military Prosecutions or the Chief of the Defence Force (as the case may be).

70  Appeals not to be brought against certain judgements

Appeals to a Full Court

             (1)  Despite section 94 of the Military Court Act, an appeal must not be brought to a Full Court from:

                     (a)  a judgement of a single Judge exercising the jurisdiction of the Military Court in an appeal under this Part; or

                     (b)  a judgement of the Military Court under Part 8 of the Military Court Act (which deals with bail) made in relation to an appeal under this Part.

Appeals to the High Court

             (2)  An appeal must not be brought to the High Court from a judgement of the Military Court exercising its jurisdiction in an appeal under this Part if the judgement is:

                     (a)  a determination of an application referred to in clause 55 or subclause 68(1) of this Schedule; or

                     (b)  a decision to reinstate, or not to reinstate, an appeal under this Part that was taken to have been abandoned or dismissed.

             (3)  To avoid doubt, subclause (2) has effect in addition to Part 7 of the Military Court Act.

166  Schedule 4 (heading)

Repeal the heading, substitute:

Schedule 4Oath or affirmation for holders of certain offices

Note:       See sections 184 and 188GJ and Schedule 3B, clause 25.

167  At the end of the Act

Add:

Schedule 7Certain disciplinary offences

Note:       See subsections 190B(1) and 190C(1).

  

 

Item

Offence against:

Subject matter

1

Subsection 23(1)

Absence from duty

2

Subsection 23(2)

Absence from duty

3

Subsection 24(1)

Absence without leave

4

Subsection 26(1)

Insubordinate conduct

5

Subsection 26(2)

Insubordinate conduct

6

Subsection 27(1)

Disobeying a lawful command

7

Subsection 29(1)

Failing to comply with a general order

8

Subsection 32(1)

Person on guard or on watch

9

Subsection 35(1)

Negligence in performance of a duty

10

Subsection 37(1)

Intoxicated while on duty etc.

11

Subsection 54A(1)

Custodial offences

12

Subsection 54A(2)

Custodial offences

13

Subsection 60(1)

Prejudicial conduct

14

Subsection 60(1A)

Prejudicial conduct

 


 

Part 2Amendment of offences

Defence Force Discipline Act 1982

168  Paragraphs 40D(1)(d) and (2)(d)

Omit “$100”, substitute “3 penalty units”.

169  Paragraphs 59(3)(f), (5)(e) and (6)(e)

Omit “$100”, substitute “3 penalty units”.

170  Section 62

Repeal the section, substitute:

62  Commanding or ordering a service offence to be committed

             (1)  A defence member who commands or orders a person to commit a service office (the relevant service offence) is guilty of an offence.

Maximum punishment:

                     (a)  if the relevant service offence is punishable by a fixed punishment—that fixed punishment; or

                     (b)  otherwise—a punishment that is not more severe than the maximum punishment for the relevant service offence.

             (2)  For the defence member to be guilty, the defence member must intend that the relevant service offence be committed.

             (3)  Subsection (2) has effect subject to subsection (6).

             (4)  The defence member may be found guilty even if committing the relevant service offence is impossible.

             (5)  Any defences, procedures, limitations or qualifying provisions that apply to the relevant service offence apply also to the offence of commanding or ordering a person to commit the relevant service offence.

             (6)  Any special liability provisions (within the meaning of the Criminal Code) that apply to the relevant service offence apply also to the offence of commanding or ordering a person to commit the relevant service offence.

             (7)  It is not an offence to command or order a person to commit an offence against any of the following provisions of the Criminal Code:

                     (a)  section 11.1 (attempt);

                     (b)  section 11.4 (incitement);

                     (c)  section 11.5 (conspiracy).

171  Subparagraph 68(1)(h)(ii)

Omit “$500”, substitute “15 penalty units”.

172  Subsection 72(1)

Omit “Sections 16, 19A to 19AZD (other than section 19AH), 20, 20A and 20AA of the Crimes Act 1914”, substitute “Sections 16 and 19A to 19AZD (other than section 19AH) of the Crimes Act 1914 (the applied Crimes Act provisions)”.

173  After subsection 72(1)

Insert:

          (1A)  Despite the applied Crimes Act provisions, a service tribunal that imposes a punishment of imprisonment for a specific period (the sentence) on a convicted person:

                     (a)  must not make a recognizance release order in relation to the person; and

                     (b)  may fix a non‑parole period in respect of the sentence, even if:

                              (i)  the sentence does not exceed 3 years; or

                             (ii)  if 2 or more sentences are imposed—the sentences in the aggregate do not exceed 3 years.

174  Subsection 72(2)

Omit “the provisions of the Crimes Act 1914 as applied by virtue of subsection (1) to the service tribunal shall”, substitute “the applied Crimes Act provisions, as modified by subsection (1A), is to”.

175  At the end of section 72

Add:

             (3)  In addition to the effect of the provisions of Division 5 of Part IB of the Crimes Act 1914 (as applied by subsection (1) and modified by subsection (1A)), those provisions have the same effect in relation to a non‑parole period fixed by a service tribunal in respect of a sentence of, or sentences aggregating, 3 years or less as those provisions have in relation to a non‑parole period fixed by a service tribunal in respect of a sentence of, or sentences aggregating, more than 3 years but less than 10 years.

176  Subsection 79(2)

Omit “an amount not less than $100”, substitute “3 penalty units or more”.

177  Clause 2 of Schedule 2 (table, column 2)

Omit “of an amount not exceeding $500.”, substitute “not exceeding 15 penalty units”.

178  Subclause 1(4) of Schedule 3 (table, item 2, column 2)

Omit “exceeding $100 but not exceeding $250”, substitute “not exceeding 7 penalty units”.

179  Subclause 1(4) of Schedule 3 (table, item 2, column 3)

Omit “$100”, substitute “3 penalty units”.

180  Subclause 2(3) of Schedule 3 (table, item 5, column 2)

Omit “exceeding $100 but not exceeding $250”, substitute “not exceeding 7 penalty units”.

181  Subclause 2(3) of Schedule 3 (table, item 5, column 3)

Omit “$100”, substitute “3 penalty units”.


 

Part 3Other amendment

Defence Force Discipline Act 1982

182  Clause 45 of Schedule 3B

Omit “the Evidence and Procedure (New Zealand) Act 1994”, substitute “the Trans‑Tasman Proceedings Act 2010”.


 

Schedule 2Amendments of other Defence legislation

  

Defence Act 1903

1  Subsection 4(1)

Insert:

accused person has the same meaning as in the Defence Force Discipline Act 1982.

2  Subsection 4(1)

Insert:

court martial has the same meaning as in Schedule 3B to the Defence Force Discipline Act 1982.

3  Subsection 4(1)

Insert:

Defence Force magistrate has the same meaning as in the Defence Force Discipline Act 1982.

4  Subsection 4(1)

Insert:

Director of Defence Counsel Services means the person appointed under subsection 110ZA(2) as the Director of Defence Counsel Services or a person acting as the Director of Defence Counsel Services.

5  Subsection 4(1)

Insert:

legal officer has the same meaning as in the Defence Force Discipline Act 1982.

6  Subsection 4(1)

Insert:

Military Court means the Military Court of Australia created by the Military Court Act.

7  Subsection 4(1)

Insert:

Military Court Act means the Military Court of Australia Act 2012.

8  Subsection 9A(5)

Omit “, the Defence Force Discipline Appeal Tribunal,”.

9  Subsection 89(2)

Repeal the subsection, substitute:

             (2)  In this section:

judge advocate has the same meaning as in the Defence Force Discipline Act 1982.

summary authority has the same meaning as in the Defence Force Discipline Act 1982.

10  Section 90 (heading)

Repeal the heading, substitute:

90  Failure to comply with order to exclude members of the public etc. in hearing before court martial or Defence Force magistrate

11  Paragraph 90(1)(a)

Omit “section 140 of”, substitute “subclause 33(2) of Schedule 3B to”.

12  Subsection 90(2)

Omit “section 140 of”, substitute “subclause 33(2) of Schedule 3B to”.

13  Section 108

Omit all the words after “against the defence member or defence civilian”, substitute “in respect of a service offence within the meaning of the Defence Force Discipline Act 1982”.

14  After Part VIIIC

Insert:

Part VIIIDDirector of Defence Counsel Services

  

110ZA  Director of Defence Counsel Services

             (1)  There is to be a Director of Defence Counsel Services.

             (2)  The Director of Defence Counsel Services is to be appointed by the Chief of the Defence Force.

             (3)  The Chief of the Defence Force must not appoint a person to be the Director of Defence Counsel Services unless the person is a legal officer.

110ZB  Functions and powers of the Director of Defence Counsel Services

             (1)  The Director of Defence Counsel Services has the following functions:

                     (a)  to provide for an accused person awaiting trial by the Military Court, or a court martial or a Defence Force magistrate, to be given the opportunity to be advised before the trial, and to be represented at the trial, by a legal officer, to the extent that the exigencies of service permit;

                     (b)  to arrange for the attendance of witnesses, to the extent that the exigencies of service permit, on behalf of an accused person referred to in paragraph (a);

                     (c)  to manage the provision of legal advice, representation and assistance by legal officers in relation to:

                              (i)  appeals to the Military Court under Part 6 of the Military Court Act; and

                             (ii)  cases stated, questions reserved or questions of law referred to the Military Court under Division 4 of Part 6 of the Military Court Act; and

                            (iii)  appeals to the Military Court under Part 4 of Schedule 3B to the Defence Force Discipline Act 1982; and

                            (iv)  references of questions of law to the Military Court under Division 4 of Part 4 of Schedule 3B to the Defence Force Discipline Act 1982;

                     (d)  to establish and maintain, in accordance with subsection 101F(2) of the Defence Force Discipline Act 1982, lists of legal officers willing to assist persons in custody;

                     (e)  to manage the provision of legal representation and advice by legal officers to persons entitled to such representation or advice, for the purposes of a court of inquiry, a board of inquiry or a Chief of the Defence Force commission of inquiry conducted under regulations made under paragraph 124(1)(gc);

                      (f)  such other functions as the Chief of the Defence Force directs in writing;

                     (g)  to do anything incidental or conducive to the performance of any of the preceding functions.

             (2)  The Director of Defence Counsel Services may, in writing, give directions, or provide guidelines, of a general nature to legal officers in relation to the provision of representation, legal advice and other assistance referred to in subsection (1).

             (3)  The Director of Defence Counsel Services is not subject to military command or to the Defence Force Discipline Act 1982 in the performance of his or her functions, or the exercise of his or her powers, as the Director of Defence Counsel Services.

             (4)  An action, suit or proceeding does not lie against the Director of Defence Counsel Services, or a person assisting the Director of Defence Counsel Services, in relation to an act done, or omitted to be done, in good faith in the performance or purported performance of a function, or the exercise or purported exercise of a power, conferred on the Director of Defence Counsel Services by or under this Act or any other law of the Commonwealth.

             (5)  A direction given under paragraph (1)(f) is not a legislative instrument.

             (6)  A direction given or a guideline provided under subsection (2) is not a legislative instrument.

15  Subsection 122B(2) (definition of legal officer)

Repeal the definition.

16  Before section 123F

Insert:

123E  Judges and Federal Magistrates of the Military Court not to enlist in or be appointed to the Australian Defence Force

                   A person who is a Judge of the Military Court (including the Chief Justice), or a Federal Magistrate of the Military Court, must not enlist, and must not be appointed as an officer, in the Australian Defence Force.

Defence Force Retirement and Death Benefits Act 1973

17  Paragraph 6(5)(a)

Omit “under the Defence Force Discipline Act 1982”.


 

Schedule 3Amendments of other Acts

Part 1Main amendments

Acts Interpretation Act 1901

1  Section 2B

Insert:

Federal Magistrate: see subsection 16C(4).

2  Section 16C (heading)

Repeal the heading, substitute:

16C  References to Stipendiary Magistrate, Magistrate and Federal Magistrate

3  At the end of section 16C

Add:

             (4)  A reference in an Act to a Federal Magistrate means a Federal Magistrate of the Federal Magistrates Court or the Military Court of Australia.

Administrative Decisions (Judicial Review) Act 1977

4  At the end of paragraph (o) of Schedule 1

Add “(other than decisions by the Attorney‑General under subsection 158A(8) of that Act or subclause 35(7) of Schedule 3B to that Act)”.

5  At the end of Schedule 1

Add:

                  ; (zg)  the following decisions under the Military Court of Australia Act 2012:

                              (i)  decisions of the Chief Justice in the exercise of the powers or the performance of the functions mentioned in subsection 53(2) of that Act;

                             (ii)  decisions of the Chief Justice or the Attorney‑General whether to consent as mentioned in paragraph 14(2)(a) of that Act.

Age Discrimination Act 2004

6  Schedule 1 (table item 22)

Repeal the item.

7  Schedule 1 (after table item 30)

Insert:

30A

Military Court of Australia Act 2012

Australian Crime Commission Act 2002

8  Schedule 1

Before:

National Health Act 1953, section 135A

insert:

Military Court of Australia Act 2012, section 168

Australian Security Intelligence Organisation Act 1979

9  Section 34A (definition of Federal Magistrate)

Repeal the definition.

10  Section 34A (after paragraph (b) of the definition of superior court)

Insert:

                   (ba)  the Military Court of Australia; or

Crimes Act 1914

11  Subsection 3C(1) (paragraph (a) of the definition of offence)

After “other than”, insert “a service offence within the meaning of”.

12  Section 3ZQL (heading)

Repeal the heading, substitute:

3ZQL  Definition

13  Section 3ZQL (definition of Federal Magistrate)

Repeal the definition.

14  At the end of paragraph 4AAA(1)(aa)

Add “or the Military Court of Australia”.

15  Subsection 4AAA(1) (note 1)

Repeal the note, substitute:

Note 1:       Federal Magistrate and Magistrate are defined in section 16C of the Acts Interpretation Act 1901.

16  Subsection 4AAA(2)

Omit “the Federal Court of Australia”, insert “a federal court referred to in paragraph (1)(aa)”.

17  Subsection 4AAA(3A)

Omit “the Federal Court of Australia”, insert “a federal court referred to in paragraph (1)(aa)”.

Federal Court of Australia Act 1976

18  Section 18C

Before “The Registrar”, insert “(1)”.

19  At the end of section 18C

Add:

             (2)  A person who is a member of the Australian Defence Force must not be appointed, and cannot hold office, as the Registrar.

Note:          The Registrar also has functions and powers under the Military Court of Australia Act 2012.

20  Subsection 18J(1)

Omit “(1)”.

21  Subsection 18J(2)

Repeal the subsection.

Federal Magistrates Act 1999

22  Section 5 (after paragraph (c) of the definition of prior judicial service)

Insert:

                    (ca)  a Federal Magistrate of the Military Court of Australia;

Federal Proceedings (Costs) Act 1981

23  Subsection 3(1) (after paragraph (b) of the definition of Federal appeal)

Insert:

                   (ba)  an appeal to the High Court from a judgement of the Military Court; or

24  Subsection 3(1)

Insert:

Military Court means the Military Court of Australia.

25  Subsection 10(1)

After “the Federal Court”, insert “, the Military Court”.

26  Schedule

After:

Federal Court .................................................................................

3000

insert:

Military Court ................................................................................

6000

27  At the end of the Schedule

Add:

Note:          Higher amounts than the prescribed maximum amounts specified in this Schedule may be prescribed by regulations made under subsection 18(1) of this Act.

Geneva Conventions Act 1957

28  Subsection 5(2) (definition of court)

Repeal the definition, substitute:

court does not include a service tribunal within the meaning of the Defence Force Discipline Act 1982.

Judges (Long Leave Payments) Act 1979

29  Section 3 (paragraph (a) of the definition of Judge)

Omit “the High Court or the Federal Magistrates Court”, substitute “a Justice of the High Court or a Federal Magistrate”.

30  Section 3 (paragraph (b) of the definition of Judge)

Omit “of a court referred to in paragraph (a)”, substitute “covered by paragraph (a)”.

Judges’ Pensions Act 1968

31  Subsection 4(1) (paragraph (a) of the definition of Judge)

Omit “the Federal Magistrates Court”, substitute “a Federal Magistrate”.

32  Subsection 4(1) (paragraph (b) of the definition of Judge)

Omit “of a court referred to in paragraph (a)”, substitute “covered by paragraph (a)”.

Judiciary Act 1903

33  Paragraph 23(2)(a)

Repeal the paragraph, substitute:

                     (a)  in the case of:

                              (i)  a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity); or

                             (ii)  a decision of a Supreme Court of a State or Territory or a Judge of such a Court; or

                            (iii)  a decision of the Federal Court of Australia or a Judge of that Court; or

                            (iv)  a decision of the Military Court of Australia or a Judge of that Court; or

                             (v)  a decision of the Family Court of Australia or a Judge of that Court;

                            that is called in question by appeal or otherwise—the decision appealed from is to be affirmed; and

34  Section 39B (heading)

Repeal the heading, substitute:

39B  Original jurisdiction of Federal Court of Australia—general

35  Subsection 39B(1)

After “(1EA)”, insert “and subsections 39C(1) and (2)”.

36  At the end of Part VI

Add:

39C  Original jurisdiction of Federal Court of Australia—certain writs relating to prosecutions for service offences

             (1)  If a decision to prosecute a person in the Military Court of Australia for a service offence under the Defence Force Discipline Act 1982 has been made by an officer or officers of the Commonwealth:

                     (a)  the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition, or an injunction, against the officer or officers in relation to that decision; and

                     (b)  the Military Court of Australia is invested with, or has conferred on it, jurisdiction with respect to any such matter.

             (2)  Subject to subsection (3), at any time when:

                     (a)  a prosecution for a service offence under the Defence Force Discipline Act 1982 is before the Military Court of Australia; or

                     (b)  an appeal arising out of such a prosecution is before the Military Court of Australia;

the following apply:

                     (c)  the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

                     (d)  the Military Court of Australia is invested with, or has conferred on it, jurisdiction with respect to any such matter.

             (3)  Subsection (2) does not apply if a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution in the Military Court of Australia for a service offence under the Defence Force Discipline Act 1982.

             (4)  If subsection (3) applies, the prosecutor may apply to the Military Court of Australia for a permanent stay of the proceedings referred to in that subsection, and the Military Court may grant such a stay if it determines that:

                     (a)  the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and

                     (b)  a stay of proceedings will not substantially prejudice the person.

             (5)  This section has effect despite anything in any other law.

             (6)  In this section:

related criminal justice process decision has the same meaning in relation to a service offence under the Defence Force Discipline Act 1982 as that expression has in relation to an offence in subsection 39B(3).

Legislative Instruments Act 2003

37  Section 9

After “Federal Court of Australia”, insert “, the Military Court of Australia”.

Military Court of Australia Act 2012

38  Subsection 170(5) (note)

Repeal the note, substitute:

Note:          See Part 6 of the Trans‑Tasman Proceedings Act 2010.

39  Subsection 171(3) (note)

Repeal the note, substitute:

Note:          See Part 6 of the Trans‑Tasman Proceedings Act 2010.

40  Section 175

Omit “the Evidence and Procedure (New Zealand) Act 1994”, substitute “the Trans‑Tasman Proceedings Act 2010”.

National Security Information (Criminal and Civil Proceedings) Act 2004

41  Section 7 (definition of prosecutor)

Repeal the definition, substitute:

prosecutor:

                     (a)  in relation to a federal criminal proceeding (other than a proceeding before the Military Court of Australia), means the Director of Public Prosecutions or a person representing the Director of Public Prosecutions in relation to the proceeding; and

                     (b)  in relation to a federal criminal proceeding before the Military Court of Australia, means the Director of Military Prosecutions or a person representing the Director of Military Prosecutions in relation to the proceeding.

42  Paragraph 13(2)(f)

After “39B(1B)”, insert “or 39C(1)”.

43  Subparagraph 13(2)(f)(ii)

Omit “of that Act”, insert “or 39C(6) of that Act, as the case requires”.

44  Section 14

Before “In this”, insert “(1)”.

45  At the end of section 14

Add:

             (2)  To avoid doubt, a proceeding before a court martial or a Defence Force magistrate in respect of a service offence under the Defence Force Discipline Act 1982 is not a federal criminal proceeding for the purposes of this Act. However, an appeal or other proceeding in the Military Court of Australia under Part 4 of Schedule 3B to the Defence Force Discipline Act 1982 is a federal criminal proceeding for the purposes of this Act.

Trans‑Tasman Proceedings Act 2010

46  Subsection 109(3)

Before “Family Court”, insert “Military Court of Australia, the”.

Trans‑Tasman Proceedings (Transitional and Consequential Provisions) Act 2010

47  Part 3 of Schedule 2 (heading relating to the Defence Force Discipline Act 1982)

Repeal the heading.

48  Items 10, 11 and 12 of Schedule 2

Repeal the items.


 

Part 2Contingent amendments

Division 1—Amendments relating to judicial misbehaviour and incapacity

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

49  Section 4

After “Federal Court of Australia”, insert “, the Military Court of Australia”.

50  Section 7 (paragraph (b) of the definition of Commonwealth judicial officer)

Omit “the Federal Magistrates Court”, substitute “a Federal Magistrate”.

51  Section 7 (definition of Federal Magistrate)

Repeal the definition.

52  After paragraph 19(6)(a)

Insert:

                   (ab)  an investigation into a complaint about a Judge or a Federal Magistrate within the meaning of the Military Court of Australia Act 2012; and

Division 2—Amendments relating to judicial complaints

Freedom of Information Act 1982

53  After subsection 5(1A)

Insert:

Certain documents relating to complaint handling—Military Court Judges and Federal Magistrates

       (1AA)  This Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to a complaint handler (or a body consisting of complaint handlers):

                     (a)  exercising powers or performing functions under paragraph 53(2)(c) and subsection 53(2A) of the Military Court of Australia Act 2012; or

                     (b)  assisting in exercising those powers or performing those functions.

For this purpose complaint handler has the meaning given by that Act.

Military Court of Australia Act 2012

54  Section 3

Insert:

complaint means a complaint mentioned in paragraph 53(2)(c).

55  Section 3

Insert:

complaint handler means:

                     (a)  the Chief Justice; or

                     (b)  a person who is authorised by the Chief Justice under subsection 53(2B); or

                     (c)  a person who is a member of a body that is authorised by the Chief Justice under subsection 53(2B).

56  Section 3

Insert:

handle a complaint means do one or more of the following acts relating to the complaint:

                     (a)  consider the complaint;

                     (b)  investigate the complaint;

                     (c)  report on an investigation of the complaint;

                     (d)  deal with a report of an investigation of the complaint;

                     (e)  dispose of the complaint;

                      (f)  refer the complaint to a person or body.

57  Section 3

Insert:

relevant belief: a person has a relevant belief in relation to a complaint about a Judge or a Federal Magistrate if:

                     (a)  the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated, justify consideration of the removal of the Judge or Federal Magistrate in accordance with paragraph 72(ii) of the Constitution; or

                     (b)  the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated:

                              (i)  adversely affect, or have adversely affected, the performance of judicial or official duties by the Judge or Federal Magistrate; or

                             (ii)  have the capacity to adversely affect, or have adversely affected, the reputation of the Military Court.

58  After section 48

Insert:

48A  Protection of persons involved in handling etc. complaints

             (1)  In exercising powers or performing functions under paragraph 53(2)(c) and subsection 53(2A), or assisting in exercising those powers or performing those functions, a complaint handler has the same protection and immunity as a Justice of the High Court.

             (2)  In authorising a person or body under subsection 53(2B), the Chief Justice has the same protection and immunity as a Justice of the High Court.

             (3)  A witness requested to attend, or appearing, before a complaint handler handling a complaint has the same protection, and is subject to the same liabilities in a proceeding, as a witness in a case tried by the High Court.

             (4)  A legal practitioner assisting, or appearing on behalf of a person before, a complaint handler handling a complaint has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

59  At the end of subsection 53(2)

Add:

             ; and (c)  may deal, as set out in subsection (2A), with a complaint about the performance by another Judge or a Federal Magistrate of his or her judicial or official duties; and

                     (d)  may take any measures that the Chief Justice believes are reasonably necessary to maintain public confidence in the Military Court, including, but not limited to, temporarily restricting another Judge or a Federal Magistrate to non‑sitting duties.

60  After subsection 53(2)

Insert:

          (2A)  The Chief Justice may, if a complaint is made about another Judge or a Federal Magistrate, deal with the complaint by doing either or both of the following in respect of the complaint:

                     (a)  deciding whether or not to handle the complaint and then doing one of the following:

                              (i)  dismissing the complaint;

                             (ii)  handling the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge or the Federal Magistrate;

                            (iii)  arranging for any other complaint handlers to assist the Chief Justice to handle the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge or the Federal Magistrate;

                     (b)  arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:

                              (i)  dismiss the complaint;

                             (ii)  handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge or the Federal Magistrate.

Note:          A complaint handler (other than the Chief Justice) may handle a complaint by referring it to the Chief Justice. The Chief Justice may then do either or both of the things referred to in paragraph (a) or (b) in respect of the complaint.

          (2B)  The Chief Justice may authorise, in writing, a person or a body to do one or more of the following:

                     (a)  assist the Chief Justice to handle complaints or a specified complaint;

                     (b)  decide whether or not to handle complaints or a specified complaint;

                     (c)  dismiss complaints or a specified complaint;

                     (d)  handle complaints or a specified complaint.

61  At the end of subsection 53(3)

Add:

Note:          See also section 48A.

62  At the end of subsection 53(4)

Add “, (2A) or (2B)”.

63  Application of items 55 to 63

The amendments made by items 55 to 63 of this Schedule apply on or after the commencement of this item in relation to a complaint, regardless of whether:

                     (a)  the complaint was made before, on or after that commencement; or

                     (b)  the circumstances that gave rise to the complaint occurred before, on or after that commencement.

Division 3—Amendments relating to suppression and non‑publication orders

Australian Crime Commission Act 2002

64  Schedule 1

Omit:

Military Court of Australia Act 2012, section 168

substitute:

Military Court of Australia Act 2012, Part 11A

Military Court of Australia Act 2012

65  Section 3

Insert:

information, in Part 11A, includes any document.

66  Section 3

Insert:

news publisher means a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.

67  Section 3

Insert:

non‑publication order means an order under Part 11A that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

68  Section 3 (definition of party)

Repeal the definition, substitute:

party, to a proceeding:

                     (a)  means the accused person and the Director of Military Prosecutions; and

                     (b)  in Part 11A, includes a victim (or alleged victim) in the proceeding and any person named in evidence given in a proceeding and, in relation to a proceeding that has concluded, means a person who was a party to the proceeding before the proceeding concluded.

69  Section 3

Insert:

publish, in Part 11A, means disseminate or provide access to the public or a section of the public by any means, including by:

                     (a)  publication in a book, newspaper, magazine or other written publication; or

                     (b)  broadcast by radio or television; or

                     (c)  public exhibition; or

                     (d)  broadcast or publication by means of the internet.

70  Section 3

Insert:

suppression order means an order under Part 11A that prohibits or restricts the disclosure of information (by publication or otherwise).

71  Subsection 79(1) (note)

Repeal the note, substitute:

Note:          The Military Court may make orders to protect witnesses, information, documents and other things (see section 167 and Part 11A).

72  Subsection 158(5)

Omit “subsection 157(3), 167(1) or 168(1)”, substitute “subsection 157(3) or 167(1) or Part 11A”.

73  Subsection 167(1) (note)

Repeal the note, substitute:

Note:          Part 11A deals with suppression and non‑publication orders.

74  Section 168

Repeal the section.

75  After Part 11

Insert:

Part 11ASuppression and non‑publication orders

Division 1Introduction

180A  Guide to this Part

This Part deals with suppression orders and non‑publication orders.

Division 2 deals with the interaction between this Part and other powers of the Military Court and other laws.

Division 3 provides for the Military Court to make suppression orders and non‑publication orders and deals with matters relating to those orders.

Division 2Effect of this Part on other powers and laws

180B  Powers of the Military Court not affected

                   This Part does not limit or otherwise affect any powers that the Military Court has apart from this Part to regulate its proceedings or to deal with a contempt of the Military Court.

180C  Other laws not affected

                   This Part does not limit or otherwise affect the operation of a provision made by or under any Act (other than this Act) that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.

180D  No limit on section 167

                   This Part does not limit section 167 (about protecting witnesses).

Division 3Suppression and non‑publication orders

180E  Safeguarding public interest in open justice

                   In deciding whether to make a suppression order or non‑publication order, the Military Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

180F  Power to make orders

             (1)  The Military Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

                     (a)  information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Military Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Military Court; or

                     (b)  information that relates to a proceeding before the Military Court and is:

                              (i)  information that comprises evidence or information about evidence; or

                             (ii)  information obtained by the process of discovery; or

                            (iii)  information produced under a subpoena; or

                            (iv)  information lodged with or filed in the Military Court.

             (2)  The Military Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

180G  Grounds for making an order

             (1)  The Military Court may make a suppression order or non‑publication order on one or more of the following grounds:

                     (a)  the order is necessary to prevent prejudice to the proper administration of justice;

                     (b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

                     (c)  the order is necessary to protect the safety of any person;

                     (d)  the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a proceeding involving an offence of a sexual nature (including an act of indecency).

             (2)  A suppression order or non‑publication order must specify the ground or grounds on which the order is made.

180H  Procedure for making an order

             (1)  The Military Court may make a suppression order or non‑publication order on its own initiative or on the application of:

                     (a)  a party to the proceeding concerned; or

                     (b)  any other person considered by the Military Court to have a sufficient interest in the making of the order.

             (2)  Each of the following persons is entitled to appear and be heard by the Military Court on an application for a suppression order or non‑publication order:

                     (a)  the applicant for the order;

                     (b)  a party to the proceeding concerned;

                     (c)  the Government (or an agency of the Government) of the Commonwealth or a State or Territory;

                     (d)  a news publisher;

                     (e)  any other person who, in the Military Court’s opinion, has a sufficient interest in the question of whether a suppression order or non‑publication order should be made.

             (3)  A suppression order or non‑publication order may be made at any time during a proceeding or after a proceeding has concluded.

             (4)  A suppression order or non‑publication order may be made subject to such exceptions and conditions as the Military Court thinks fit and specifies in the order.

             (5)  A suppression order or non‑publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which the order is made.

180J  Interim orders

             (1)  If an application is made to the Military Court for a suppression order or non‑publication order, the Military Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Military Court, until the application is determined.

             (2)  If an order is made as an interim order, the Military Court must determine the application as a matter of urgency.

180K  Duration of orders

             (1)  A suppression order or non‑publication order operates for the period decided by the Military Court and specified in the order.

             (2)  In deciding the period for which an order is to operate, the Military Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

             (3)  The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

180L  Exception for court officials

                   A suppression order does not prevent a person from disclosing information if the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity:

                     (a)  in connection with the conduct of a proceeding or the recovery or enforcement of any penalty imposed in a proceeding; or

                     (b)  in compliance with any procedure adopted by the Military Court for informing a news publisher of the existence and content of a suppression order or non‑publication order made by the Military Court.

180M  Contravention of order

             (1)  A person commits an offence if:

                     (a)  the person does an act or omits to do an act; and

                     (b)  the act or omission contravenes an order made by the Military Court under section 180F.

Penalty:  Imprisonment for 12 months, 60 penalty units or both.

             (2)  An act or omission that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.

             (3)  An act or omission that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.

             (4)  If an act or omission constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.


 

Schedule 4Repeal

  

Defence Force Discipline Appeals Act 1955

1  The whole of the Act

Repeal the Act.


 

Schedule 5Application, saving and transitional provisions

Part 1Definitions

1  Definitions

In this Schedule:

appeal proceedings completion day means the day declared under subitem 17(3) of this Schedule.

Defence Department means the Department of State that deals with defence and that is administered by the Defence Minister.

Defence Force Discipline Appeals Act 1955 means the Defence Force Discipline Appeals Act 1955 (including the regulations and other instruments under that Act) as in force immediately before the Military Court proceedings start day.

Defence Minister means the Minister administering the Defence Force Discipline Act 1982.

Director of Defence Counsel Services has the same meaning as in the Defence Act 1903, as in force on or after the Military Court proceedings start day.

main amendments and repeals means the amendments and repeals made by the following provisions of this Act:

                     (a)  Part 1 of Schedule 1;

                     (b)  items 1 to 5 and 8 to 15 of Schedule 2;

                     (c)  Schedule 4.

Military Court means the Military Court of Australia created by the Military Court Act.

Military Court Act means the Military Court of Australia Act 2012.

Military Court proceedings start day means the day on which Part 1 of Schedule 1 to this Act commences.

new DFDA means the Defence Force Discipline Act 1982 (including the regulations, rules of procedure and other instruments under that Act) as in force on or after the Military Court proceedings start day.

old DFDA means the Defence Force Discipline Act 1982 (including the regulations, rules of procedure and other instruments under that Act) as in force immediately before the Military Court proceedings start day.

old law means the following laws, as in force immediately before the Military Court proceedings start day:

                     (a)  the Defence Force Discipline Act 1982 (including the regulations, rules of procedure and other instruments under that Act);

                     (b)  the Defence Force Discipline Appeals Act 1955 (including the regulations and other instruments under that Act);

                     (c)  the Defence Act 1903 (including the regulations and other instruments under that Act).

proceedings in relation to a charge includes the following:

                     (a)  dealing with the charge;

                     (b)  a trial of the charge;

                     (c)  taking action under Part IV of the old DFDA in respect of a conviction of the service offence to which the charge relates;

                     (d)  a review under Part VIIIA of the old DFDA of proceedings in relation to the charge;

                     (e)  an appeal or other proceeding in relation to the charge.

Registrar of Military Justice means the Registrar appointed under section 188FB of the old DFDA (including a Registrar appointed under that section as it continues to apply because of this Schedule).

service tribunal proceedings completion day means the day declared under subitem 16(1) of this Schedule.


 

Part 2Proceedings in respect of service offences

2  Application of main amendments and repeals—general

(1)       The main amendments and repeals apply in relation to a service offence committed by a person on or after the Military Court proceedings start day.

(2)       The main amendments and repeals also apply in relation to a service offence committed by a person before the Military Court proceedings start day if:

                     (a)  the person had not been charged with the service offence before the Military Court proceedings start day; or

                     (b)  the person had been charged with the service offence before the Military Court proceedings start day, but proceedings to deal with the charge had not been commenced before that day.

3  Continued application of old law to proceedings that had not been finally determined before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  proceedings to deal with the charge had been commenced; and

                     (c)  proceedings in relation to the charge had not been finally determined.

(2)       Despite the main amendments and repeals and except as otherwise provided in subitems (3) and (4) and items 4 to 10 of this Schedule, the old law continues to apply in relation to the charge (including any amendment of the charge), and proceedings in relation to the charge, as if the main amendments and repeals had not happened.

(3)       Section 131B of the old DFDA does not apply in relation to a conviction by a summary authority of a service offence under the old DFDA as it continues to apply because of subitem (2).

(4)       This item has effect subject to sections 190B and 190C of the new DFDA.

Note:       Sections 190B and 190C of the new DFDA deal with the effect of a conviction of a service offence.

4  Charge not referred to a Defence Force magistrate before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  the person had not made an election under section 111C or 131AA of the old DFDA to have the charge tried by a court martial or Defence Force magistrate; and

                     (c)  the charge had not been referred to the Director of Military Prosecutions under subsection 129A(3) or section 131A of the old DFDA; and

                     (d)  the Director of Military Prosecutions had requested the Registrar of Military Justice to refer the charge to a Defence Force magistrate for trial; and

                     (e)  the Registrar of Military Justice had not referred the charge to a Defence Force magistrate for trial.

(2)       The Director of Military Prosecution’s request is taken to have been withdrawn immediately before the Military Court proceedings start day.

(3)       The main amendments and repeals apply in relation to the charge.

5  Order convening a court martial not signed before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  the person had not made an election under section 111C or 131AA of the old DFDA to have the charge tried by a court martial or Defence Force magistrate; and

                     (c)  the charge had not been referred to the Director of Military Prosecutions under subsection 129A(3) or section 131A of the old DFDA; and

                     (d)  the Director of Military Prosecutions had requested the Registrar of Military Justice to convene a court martial to try the charge; and

                     (e)  the request was not made under subsection 125(5) of the old DFDA; and

                      (f)  the Registrar of Military Justice had not signed an order convening a court martial to try the charge.

(2)       The Director of Military Prosecution’s request is taken to have been withdrawn immediately before the Military Court proceedings start day.

(3)       The main amendments and repeals apply in relation to the charge.

6  Proceedings before summary authority—plea to charge not required before Military Court proceedings start day

(1)       This item applies if, before the Military Court proceedings start day:

                     (a)  a person had been charged with a service offence under the old DFDA; and

                     (b)  a summary authority had commenced proceedings to deal with the charge; and

                     (c)  the person had not made an election under section 111C of the old DFDA to have the charge tried by a court martial or Defence Force magistrate; and

                     (d)  the person had not been required to enter a plea to the charge.

(2)       The main amendments and repeals apply in relation to the charge.

Note:       Under the new DFDA, the person may elect to have the charge tried by the Military Court: see Division 1 of Part VII of the new DFDA.

7  New trial ordered by reviewing authority—proceedings before court martial or Defence Force magistrate

(1)       In this item, review means a review under Part VIIIA of the old DFDA of proceedings before a court martial or a Defence Force magistrate.

(2)       Subitem (4) applies if, before the Military Court proceedings start day:

                     (a)  in a review, a reviewing authority had, under section 160 or 166 of the old DFDA, ordered a new trial of a person for a charge of a service offence; and

                     (b)  the Registrar of Military Justice had not:

                              (i)  referred the charge to a Defence Force magistrate for a new trial; or

                             (ii)  signed an order convening a court martial to retry the charge.

(3)       Subitem (4) also applies if, on or after the Military Court proceedings start day, in a review, a reviewing authority, under section 160 or 166 of the old DFDA (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(4)       The main amendments and repeals apply in relation to the charge as if the new trial had been ordered under section 160 or 166 of the new DFDA (as the case requires).

Note:       The charge may be dealt with by the Director of Military Prosecutions under section 103B of the new DFDA.

8  New trial ordered by reviewing authority—proceedings before summary authority

(1)       In this item, review means a review under Part VIIIA of the old DFDA of proceedings before a summary authority.

(2)       Subitem (4) applies if, before the Military Court proceedings start day:

                     (a)  in a review, a reviewing authority had, under section 160 of the old DFDA, ordered a new trial of a person for a charge of a service offence; and

                     (b)  the person had not been required to enter a plea to the charge at a new trial.

(3)       Subitem (4) also applies if, on or after the Military Court proceedings start day, in a review, a reviewing authority, under section 160 of the old DFDA (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(4)       The main amendments and repeals apply in relation to the charge as if the new trial had been ordered under section 160 of the new DFDA.

Note:       Under the new DFDA, the person may elect to have the charge tried by the Military Court: see Division 1 of Part VII of the new DFDA.

9  New trial ordered by the Defence Force Discipline Appeal Tribunal

(1)       Subitem (3) applies if, before the Military Court proceedings start day:

                     (a)  the Defence Force Discipline Appeal Tribunal had, under section 24 of the Defence Force Discipline Appeals Act 1955, ordered a new trial of a person for a charge of a service offence; and

                     (b)  the Registrar of Military Justice had not:

                              (i)  referred the charge to a Defence Force magistrate for a new trial; or

                             (ii)  signed an order convening a court martial to retry the charge.

(2)       Subitem (3) also applies if, on or after the Military Court proceedings start day, the Defence Force Discipline Appeal Tribunal, under section 24 of the Defence Force Discipline Appeals Act 1955 (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(3)       The main amendments and repeals apply in relation to the charge:

                     (a)  in the same way as they apply in relation to a charge to which section 103F of the new DFDA applies; and

                     (b)  as if the reference in subsection 103F(3) of the new DFDA to the Military Court order were a reference to the Defence Force Discipline Appeal Tribunal order.

Note:       The Director of Military Prosecutions may direct that the charge be not proceeded with or institute a proceeding for a new trial in respect of the charge in the Military Court.

10  New trial ordered by the Federal Court

(1)       Subitem (3) applies if, before the Military Court proceedings start day:

                     (a)  the Federal Court of Australia had, under paragraph 52(5)(c) of the Defence Force Discipline Appeals Act 1955, ordered a new trial of a person for a charge of a service offence; and

                     (b)  the Registrar of Military Justice had not:

                              (i)  referred the charge to a Defence Force magistrate for a new trial; or

                             (ii)  signed an order convening a court martial to retry the charge.

(2)       Subitem (3) also applies if, on or after the Military Court proceedings start day, the Federal Court of Australia, under paragraph 52(5)(c) of the Defence Force Discipline Appeals Act 1955 (as that section continues to apply because of this Schedule), orders a new trial of a person for a charge of a service offence.

(3)       The main amendments and repeals apply in relation to the charge:

                     (a)  in the same way as they apply in relation to a charge to which section 103F of the new DFDA applies; and

                     (b)  as if the reference in subsection 103F(3) of the new DFDA to the Military Court order were a reference to the Federal Court order.

Note:       The Director of Military Prosecutions may direct that the charge be not proceeded with or institute a proceeding for a new trial in respect of the charge in the Military Court.

11  Charges laid before Military Court proceedings start day

Charges laid by an authorised member of the Defence Force

(1)       If:

                     (a)  before the Military Court proceedings start day:

                              (i)  a person had been charged with a service offence under subparagraph 87(1)(a)(i) of the old DFDA; and

                             (ii)  a copy of the charge had been given to the person under subparagraph 87(1)(a)(ii) of the old DFDA; and

                            (iii)  the person had been ordered to appear before a summary authority under subparagraph 87(1)(a)(iii) of the old DFDA; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then:

                     (c)  the charge is taken to have been laid under subparagraph 87(1)(a)(i) of the new DFDA; and

                     (d)  the copy of the charge is taken to have been given to the person under subparagraph 87(1)(a)(ii) of the new DFDA; and

                     (e)  the person is taken to have been ordered to appear before a summary authority under subparagraph 87(1)(a)(iii) of the new DFDA.

Charges laid by the Director of Military Prosecutions

(2)       If:

                     (a)  before the Military Court proceedings start day:

                              (i)  the Director of Military Prosecutions had charged a person with a service offence under subparagraph 87(1)(a)(i) of the old DFDA; and

                             (ii)  a copy of the charge had been given to the person under subparagraph 87(1)(a)(ii) of the old DFDA; and

                            (iii)  the Director of Military Prosecutions had acted under subparagraph 87(1)(c)(i) of the old DFDA in relation to the charge; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then:

                     (c)  the charge is taken to have been laid by the Director of Military Prosecutions under paragraph 87(1A)(a) of the new DFDA; and

                     (d)  the copy of the charge is taken to have been given to the person under paragraph 87(1A)(b) of the new DFDA; and

                     (e)  the Director of Military Prosecutions is taken to have acted under subparagraph 87(1A)(c)(i) of the new DFDA in relation to the charge.

(3)       If:

                     (a)  before the Military Court proceedings start day:

                              (i)  the Director of Military Prosecutions had charged a person with a service offence under subparagraph 87(1)(a)(i) of the old DFDA; and

                             (ii)  a copy of the charge had been given to the person under subparagraph 87(1)(a)(ii) of the old DFDA; and

                            (iii)  the Director of Military Prosecutions had made a request under subparagraph 87(1)(c)(ii) or (iii) of the old DFDA in relation to the charge; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then:

                     (c)  the charge is taken to have been laid by the Director of Military Prosecutions under paragraph 87(1A)(a) of the new DFDA; and

                     (d)  the copy of the charge is taken to have been given to the person under paragraph 87(1A)(b) of the new DFDA; and

                     (e)  the Director of Military Prosecutions may act under paragraph 87(1A)(c) of the new DFDA in relation to the charge.

Summonses

(4)       If:

                     (a)  before the Military Court proceedings start day, a person had been charged with a service offence specified in a summons prepared under paragraph 87(1)(b) of the old DFDA; and

                     (b)  the main amendments and repeals apply in relation to the charge under a provision of this Schedule;

then the summons continues to have effect on and after the Military Court proceedings start day as if it had been prepared under paragraph 87(1)(b) of the new DFDA.


 

Part 3Office‑holders

12  Chief Judge Advocate

Application

(1)       This item applies in relation to the person who was taken to have been appointed as the Chief Judge Advocate by force of item 2 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009.

Appointment continues in force on and after Military Court proceedings start day

(2)       If the person’s appointment as the Chief Judge Advocate continued to be in force immediately before the Military Court proceedings start day, the appointment is taken to continue in force on and after that day, by force of this item, on the same terms and conditions as to remuneration, allowances and recreation and other leave entitlements as applied to the person under item 2 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 immediately before that day.

(3)       For the purposes of subitem (2) and despite the repeal of Division 2 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, that Division (other than subsection 188A(3) and section 188E) continues to apply, on and after the Military Court proceedings start day, in relation to the person as if the repeal had not happened.

(4)       The person does not hold a public office within the meaning of the Remuneration Tribunal Act 1973.

(5)       The person must not engage in employment outside the duties of his or her office as Chief Judge Advocate, other than as a member of the Australian Defence Force.

(6)       The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.

(7)       Unless the person’s appointment has ceased to be in force before the service tribunal proceedings completion day, the appointment ceases to be in force at the beginning of that day.

Delegations continue in force on and after Military Court proceedings start day

(8)       Despite the repeal of Division 2 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, a delegation by the Judge Advocate General to the person as Chief Judge Advocate, that was in force under subsection 188B(2) of that Division immediately before the Military Court proceedings start day, continues in force on and after that day as if that Division had not been repealed.

Benefits on ceasing to hold office

(9)       For the purposes of subitem 3(3) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009, suitable alternative employment in relation to the person does not include the person holding office as the Chief Judge Advocate on or after the Military Court proceedings start day by force of this item.

(10)     For the purposes of subitem 3(6) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009, the number of months during which the person held office as Chief Judge Advocate on or after the commencement day (within the meaning of that Schedule) includes the number (if any) of months the person held office as the Chief Judge Advocate on or after the Military Court proceedings start day by force of this item.

13  Judge advocates

Application

(1)       This item applies in relation to a person who was taken to have been appointed as a member of the judge advocates’ panel by force of item 4 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009.

Appointment continues in force on and after Military Court proceedings start day

(2)       If the person’s appointment as a member of the judge advocates’ panel continued to be in force immediately before the Military Court proceedings start day, the appointment is taken to continue in force on and after that day, by force of this item, on the same terms and conditions as to remuneration, allowances and recreation and other leave entitlements as applied to the person under item 4 of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009 immediately before the Military Court proceedings start day.

Note:       The person may be reappointed as a member of the judge advocates’ panel under subsection 196(2B) of the new DFDA.

(3)       The person does not hold a public office within the meaning of the Remuneration Tribunal Act 1973.

(4)       The person must not engage in employment outside the duties of his or her office as a member of the judge advocates’ panel, other than as a member of the Australian Defence Force.

(5)       The person may resign his or her appointment by giving the Judge Advocate General a signed notice of resignation.

(6)       Unless the person’s appointment has ceased to be in force before the service tribunal proceedings completion day, the appointment ceases to be in force at the beginning of that day.

Benefits on ceasing to hold office

(7)       For the purposes of subitem 5(3) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009, suitable alternative employment in relation to the person does not include the person holding office as a member of the judge advocates’ panel on or after the Military Court proceedings start day by force of this item.

(8)       For the purposes of subitem 5(6) of Schedule 3 to the Military Justice (Interim Measures) Act (No. 1) 2009, the number of months during which the person held office as a judge advocate on or after the commencement day (within the meaning of that Schedule) includes the number (if any) of months the person held office as a member of the judge advocates’ panel on or after the Military Court proceedings start day by force of this item.

14  Defence Force magistrates

(1)       This item applies in relation to a person who held office, immediately before the Military Court proceedings start day, as a Defence Force magistrate under section 127 of the old DFDA.

(2)       Despite the repeal of Division 4 of Part VII of the old DFDA by item 84 of Schedule 1 to this Act, the person’s appointment as a Defence Force magistrate continues in force, on and after the Military Court proceedings start day, under that Division (continuing Division 4) as if the repeal had not happened.

(3)       Unless the person’s appointment under continuing Division 4 has ceased to be in force before the service tribunal proceedings completion day, the appointment ceases to be in force at the beginning of that day.

(4)       The person is also taken to have been appointed, on the Military Court proceedings start day, as a Defence Force magistrate under clause 24 of Schedule 3B to the new DFDA.

15  Registrar of Military Justice

Existing appointment continues in force on and after Military Court proceedings start day

(1)       Subitems (2) and (3) apply in relation to the person who held office, immediately before the Military Court proceedings start day, as the Registrar of Military Justice under section 188FB of the old DFDA.

(2)       Despite the repeal of Division 3 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, the person’s appointment as the Registrar of Military Justice continues in force, on and after the Military Court proceedings start day, under that Division as if the repeal had not happened.

(3)       Unless the person’s appointment has ceased to be in force before the service tribunal proceedings completion day, the person’s appointment ceases to be in force at the beginning of that day.

Appointments etc. on or after Military Court proceedings start day

(4)       Despite the repeal of Division 3 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act:

                     (a)  a person may be appointed or reappointed as the Registrar of Military Justice, or appointed to act as the Registrar of Military Justice, on or after the Military Court proceedings start day; and

                     (b)  for that purpose, Division 3 of Part XI of the old DFDA continues in force;

as if the repeal had not happened.

(5)       An appointment or reappointment referred to in subitem (4) ceases to be in force on the service tribunal proceedings completion day if it has not already ceased to be in force before that day.

Delegations continue in force on and after Military Court proceedings start day

(6)       Despite the repeal of Division 3 of Part XI of the old DFDA by item 149 of Schedule 1 to this Act, a delegation by the Registrar of Military Justice, that was in force under section 188FM of that Division immediately before the Military Court proceedings start day, continues in force on and after that day as if the repeal had not happened.

Certificates stating amounts of fines due and payable or amounts due and payable under reparation orders

(7)       Despite the amendments of section 175 of the old DFDA by items 142, 143 and 144 of Schedule 1 to this Act and the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a certificate that was issued by the Registrar of Military Justice under subsection 175(1) of the old DFDA before the Military Court proceedings start day:

                     (a)  is to be received, on or after that day, in any civil court (within the meaning of the new DFDA) without further proof; and

                     (b)  is prima facie evidence of the facts stated in it.

16  Declaration of service tribunal proceedings completion day

(1)       The Defence Minister must declare a specified day to be the service tribunal proceedings completion day.

(2)       The day to be specified must be a day after all proceedings before a court martial or a Defence Force magistrate, in relation to a charge to which the old law applies, have been completed.

(3)       A declaration made under subitem (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.


 

Part 4Abolition of Defence Force Discipline Appeal Tribunal

17  Defence Force Discipline Appeal Tribunal continues in existence after Military Court proceedings start day

(1)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, the Defence Force Discipline Appeal Tribunal, as constituted under the Defence Force Discipline Appeals Act 1955, is taken to continue to exist, on and after the Military Court proceedings start day, as if the repeal had not happened.

(2)       The Defence Force Discipline Appeal Tribunal is abolished at the beginning of the appeal proceedings completion day.

(3)       The Attorney‑General must declare a specified day to be the appeal proceedings completion day.

(4)       The day to be specified must be a day after all proceedings before the Defence Force Discipline Appeal Tribunal or the Federal Court of Australia under the old law have been finally determined.

(5)       A declaration made under subitem (3) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.

18  Tribunal members

(1)       Subitem (2) applies to a person if, immediately before the Military Court proceedings start day, the person held office (the relevant office) under the Defence Force Discipline Appeals Act 1955 as the President or the Deputy President, or as a member, of the Defence Force Discipline Appeal Tribunal.

(2)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act:

                     (a)  the person continues to hold the relevant office for the balance of the term of his or her term of appointment, or until the appeal proceedings completion day (if that day occurs before the end of the term of the appointment), on the terms and conditions provided in the Defence Force Discipline Appeals Act 1955; and

                     (b)  the Defence Force Discipline Appeals Act 1955 continues to apply in relation to the performance by the person of his or her functions as the holder of the relevant office for so long as he or she continues to hold that office;

as if the repeal had not happened.

(3)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a person may be appointed, or reappointed, as the President or the Deputy President, or as a member, of the Defence Force Discipline Appeal Tribunal, on or after the Military Court proceedings start day, as if the repeal had not happened.

(4)       An appointment or reappointment referred to in subitem (3) ceases to be in force at the beginning of the appeal proceedings completion day if it has not already ceased to be in force before that day.

19  Registrar and Deputy Registrars of the Tribunal

(1)       Subitem (2) applies to a person if, immediately before the Military Court proceedings start day, the person held office (the relevant office) under the Defence Force Discipline Appeals Act 1955 as the Registrar or a Deputy Registrar of the Defence Force Discipline Appeal Tribunal.

(2)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act:

                     (a)  the person continues to hold the relevant office for the balance of the term of his or her term of appointment, or until the appeal proceedings completion day (if that day occurs before the end of the term of the appointment), on the terms and conditions provided in the Defence Force Discipline Appeals Act 1955; and

                     (b)  the Defence Force Discipline Appeals Act 1955 continues to apply in relation to the performance by the person of his or her functions as the holder of the relevant office for so long as he or she continues to hold that office;

as if the repeal had not happened.

(3)       Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a person may be appointed, or reappointed, as the Registrar or a Deputy Registrar of the Defence Force Discipline Appeal Tribunal, on or after the Military Court proceedings start day, as if the repeal had not happened.

(4)       An appointment or reappointment referred to in subitem (3) ceases to be in force at the beginning of the appeal proceedings completion day if it has not already ceased to be in force before that day.

20  Offences in relation to the Tribunal

Despite the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, a prosecution may be instituted, on or after the Military Court proceedings start day, in respect of an offence against Part IV of the Defence Force Discipline Appeals Act 1955, as that Act continues to apply because of this Schedule.

21  Recovery of fines etc.

Despite the amendment of section 174 of the old DFDA by item 141 of Schedule 1 to this Act and the repeal of the Defence Force Discipline Appeals Act 1955 by Schedule 4 to this Act, the following amounts may be recovered, on or after the Military Court proceedings start day, under section 174 of the old DFDA, as if the amendment and repeal had not happened:

                     (a)  an amount that is due and payable of a fine imposed on a person by the Defence Force Discipline Appeal Tribunal on or after the Military Court proceedings start day under the old DFDA or the Defence Force Discipline Appeals Act 1955, as those Acts continue to apply because of this Schedule;

                     (b)  an amount that is due and payable under a reparation order made against a person by the Defence Force Discipline Appeal Tribunal on or after the Military Court proceedings start day under the old DFDA or the Defence Force Discipline Appeals Act 1955, as those Acts continue to apply because of this Schedule.

22  Evidence of fines etc.

(1)       A person who is an authorized officer for the purposes of section 175 of the new DFDA, or a person appointed or engaged under the Public Service Act 1999 performing duties in the Defence Department, may issue a certificate stating that:

                     (a)  a specified amount of a fine imposed on a person by the Defence Force Discipline Appeal Tribunal is due and payable by a specified person; or

                     (b)  a specified amount is due and payable by a specified person under a reparation order made against a person by the Defence Force Discipline Appeal Tribunal.

(2)       Subitem (1) applies in relation to a fine imposed by the Defence Force Discipline Appeal Tribunal, or a reparation order made by that Tribunal, before, on or after the Military Court proceedings start day.

(3)       A certificate purporting to be issued under subitem (1) and purporting to be signed by a person who is an authorized officer for the purposes of section 175 of the new DFDA, or a person appointed or engaged under the Public Service Act 1999 performing duties in the Defence Department:

                     (a)  is to be received in any civil court (within the meaning of the new DFDA) without further proof; and

                     (b)  is prima facie evidence of the facts stated in it.

23  Continuation of exception under Age Discrimination Act 2004

Despite the repeal of table item 22 of Schedule 1 to the Age Discrimination Act 2004 by item 6 of Schedule 3 to this Act, table item 22 of Schedule 1 to the Age Discrimination Act 2004 continues to apply, on and after the Military Court proceedings start day, in relation to anything done in direct compliance with the Defence Force Discipline Appeals Act 1955, as that Act continues to apply because of this Schedule.


 

Part 5Other provisions

24  Transitional—superior authorities

(1)       This item applies to an officer who was a superior authority for the purposes of paragraphs 5A(a) and (b) of the old DFDA.

(2)       The officer is taken to also be a superior authority for the purposes of paragraphs 5A(aa) and (ab) of the new DFDA.

25  Saving—authorised members of the Defence Force

Despite the repeal of subsection 87(6) of the old DFDA by item 60 of Schedule 1 to this Act, an authorisation that was in force under that subsection immediately before the Military Court proceedings start day continues in force on and after that day as if it were an authorisation made under subsection 87(7) of the new DFDA.

26  Saving—authorisation of officers for the purposes of section 90

(1)       This item applies to an authorisation of an officer, or an officer included in a class of officers, that was in force immediately before the Military Court proceedings start day for the purposes of section 90 of the old DFDA.

(2)       The authorisation continues in force on and after the Military Court proceedings start day as if it were an authorisation for the purposes of section 90 of the new DFDA.

27  Application—persons in custody of commanding officer

Despite the amendment of section 95 of the old DFDA by item 65 of Schedule 1 to this Act, that section, as in force immediately before the Military Court proceedings start day, continues to apply on and after that day in relation to a person who was charged before the Military Court proceedings start day under subsection 95(2) of the old DFDA.

28  Saving—list of legal officers

A list that was in force immediately before the Military Court proceedings start day under subsection 101F(2) of the old DFDA continues in force on and after that day as if it had been established by the Director of Defence Counsel Services under subsection 101F(2) of the new DFDA.

29  Saving—authorisation of officers for the purposes of section 101X

(1)       This item applies to an authorisation of an officer, or an officer included in a class of officers, that was in force immediately before the Military Court proceedings start day for the purposes of section 101X of the old DFDA.

(2)       The authorisation continues in force on and after the Military Court proceedings start day as if it were an authorisation for the purposes of section 101X of the new DFDA.

30  Saving—authorisation of officers for the purposes of section 101Y

(1)       This item applies to an authorisation of an officer, or an officer included in a class of officers, that was in force immediately before the Military Court proceedings start day for the purposes of section 101Y of the old DFDA.

(2)       The authorisation continues in force on and after the Military Court proceedings start day as if it were an authorisation for the purposes of section 101Y of the new DFDA.

31  Saving—Court Martial and Defence Force Magistrate Rules

Despite the repeal of section 149A of the old DFDA by item 105 of Schedule 1 to this Act, the Court Martial and Defence Force Magistrate Rules, as in force immediately before the Military Court proceedings start day, continue in force on and after that day for the purpose of proceedings before a court martial or a Defence Force magistrate in relation to a charge to which the old law continues to apply because of this Schedule.

32  Saving—non‑publication orders etc. in proceedings before a court martial or Defence Force magistrate

Orders to continue in force

(1)       Despite the repeal of section 140 of the old DFDA by item 93 of Schedule 1 to this Act, an order that was in force immediately before the Military Court proceedings start day under subsection 140(2) of the old DFDA continues in force on and after that day as if the repeal had not happened.

Offence in relation to orders under section 140 of the old DFDA

(2)       Despite the amendments of section 90 of the Defence Act 1903 by items 10, 11 and 12 of Schedule 2 to this Act, that section, as in force immediately before the Military Court proceedings start day:

                     (a)  continues to apply in relation to an order made before the Military Court proceedings start day under section 140 of the old DFDA; and

                     (b)  also applies in relation to an order made on or after the Military Court proceedings start day under section 140 of the old DFDA, as that section continues to apply because of this Schedule.

33  Saving—things done under the old law before the Military Court proceedings start day

To avoid doubt, the main amendments and repeals do not affect the validity of anything done under the old law before the Military Court proceedings start day.

34  Application—amendments of service offences

(1)       The amendments and repeals made by Part 2 of Schedule 1 to this Act apply in relation to acts and omissions that take place after the commencement of this Part.

(2)       For the purposes of this item, if an act or omission is alleged to have taken place between 2 dates, one before and one after the commencement of Part 2 of Schedule 1 to this Act, the act or omission is alleged to have taken place before that commencement.

35  Application—definition of Federal Magistrate in Acts Interpretation Act 1901

The amendments of section 16C of the Acts Interpretation Act 1901 made by items 2 and 3 of Schedule 3 apply, on and after the commencement of those items, in relation to Acts enacted before, on or after that commencement.


 

Part 6Regulations

36  Regulations may deal with transitional etc. matters

The Governor‑General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments and repeals made by this Act.