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SR 1957 No. 20 Regulations as amended, taking into account amendments up to SLI 2009 No. 360
Administered by: Attorney-General's
Registered 17 Dec 2009
Start Date 17 Dec 2009
Date of repeal 20 Sep 2016
Repealed by

Defence Force Discipline Appeals Regulations 1957

Statutory Rules 1957 No. 20 as amended

made under the

This compilation was prepared on 17 December 2009
taking into account amendments up to SLI
2009 No. 360

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra


Contents

                        1     Name of Regulations [see Note 1]                                     3

                        2     Definitions                                                                       3

                        3     Period for appeal from a decision of a single member of the Tribunal    3

                        9     Lodgement of appeals etc                                                 3

                       10     Giving records of court martial proceedings etc to Tribunal   4

                       11     Legal aid                                                                         5

                       12     Discontinuance of Appeals etc                                          6

                       13     Manner of enforcing order for payment of costs                   6

                       16     Appellant in custody                                                        6

                       17     Registry                                                                          7

                       18     Notification of hearing                                                       7

                       19     Copy of regulations to be supplied                                     8

                       21     Assistant Registrar                                                          8

                       22     Fees to witnesses                                                           8

                       23     Fees for supplying copies                                                 8

                       24     Procedure following decision on appeal, application or matter  9

Notes                                                                                                          10

 


  

  

1              Name of Regulations [see Note 1]

                These Regulations are the Defence Force Discipline Appeals Regulations 1957.

2              Definitions

Act means the Defence Force Discipline Appeals Act 1955.

Deputy Registrar means a Deputy Registrar appointed under subsection 19 (2) of the Act.

detention centre has the same meaning as in the Defence Force Discipline Act 1982.

legal practitioner has the same meaning as in section 39 of the Act.

Registrar means the Registrar of the Defence Force Discipline Appeal Tribunal but does not include a Deputy Registrar.

Registrar of Military Justice means the Registrar within the meaning of the Defence Force Discipline Act 1982.

3              Period for appeal from a decision of a single member of the Tribunal

                For the purposes of subsection 17 (2) of the Act, the prescribed period within which a person affected by a decision given by a single member of the Tribunal may appeal to the Tribunal from the decision is a period of 10 days from the day on which he or she is notified of the decision.

9              Lodgement of appeals etc

         (1)   For the purpose of paragraph 21 (1) (b) of the Act, the following persons are prescribed, namely:

                (a)    a Deputy Registrar;

              (ab)    the Registrar of Military Justice;

               (b)    in the case of an appellant, other than an appellant referred to in paragraph (c), (d) or (e) — the officer commanding any unit of the Defence Force;

                (c)    where the appellant is in custody on board a ship, other than a ship of the Australian Navy, being a ship on board which is a body, contingent or detachment of the Defence Force — the officer commanding the body, contingent or detachment;

               (d)    where the appellant is confined in a detention
centre — the officer in charge of the detention centre;

                (e)    where the appellant is confined in a civil prison in Australia — the Governor of the prison.

         (2)   Where an appeal or an application for leave to appeal is lodged with a person referred to in subregulation (1), that person shall forward the appeal or application to the Registrar.

10            Giving records of court martial proceedings etc to Tribunal

         (1)   If an appeal or application for leave to appeal against a conviction or prescribed acquittal by a court martial or Defence Force magistrate is lodged under the Act, the Registrar of Military Justice must, if so requested by the Registrar, give:

                (a)    a record of proceedings of the court martial or Defence Force magistrate; and

               (b)    a record of any review with respect to the proceedings of the court martial or Defence Force magistrate; and

                (c)    documents that were before the court martial, Defence Force magistrate or reviewing authority in connection with the proceedings, as the case may be;

to the Tribunal for the purposes of that appeal or application.

         (2)   If a record or document given to the Tribunal under subregulation (1) is no longer required for the purposes of the appeal or application for leave to appeal in respect of which it was furnished, the Registrar must return the record or document to the Registrar of Military Justice.

11            Legal aid

         (1)   An appellant may, within a period of 14 days, or such longer period as the Tribunal allows, from the day on which the appellant lodged his or her appeal or application for leave to appeal, apply to the Tribunal for the approval of the Tribunal to the granting of legal aid to the appellant under this regulation.

         (2)   An application under subregulation (1) must be accompanied by a statutory declaration made by the appellant setting out such information as is necessary to enable the Tribunal to determine whether the appellant’s means are insufficient to enable him or her to prosecute the appeal or application for leave to appeal.

         (3)   If, upon an application being made to the Tribunal under this regulation, the Tribunal is satisfied:

                (a)    that the appellant has insufficient means to enable him or her to prosecute his or her appeal or application for leave to appeal; and

               (b)    that it appears desirable in the interests of justice that legal aid should be granted to the appellant under this regulation,

the Tribunal may, by order, approve the granting to the appellant of legal aid under this regulation.

         (4)   If the Tribunal approves the granting to an appellant of legal aid under this regulation, the Attorney‑General may arrange for one or more legal practitioners to represent the appellant at the hearing of the appeal or application for leave to appeal, or of a matter preliminary or incidental to the appeal.

         (5)   Where, under subregulation (4), the Attorney‑General arranges for a legal practitioner to represent an appellant, the legal practitioner shall be paid by the Commonwealth such amount for fees and disbursements as is determined by the Attorney‑General.

12            Discontinuance of Appeals etc

                An appellant may, by notice in writing to the Registrar:

                (a)    withdraw an application for leave to appeal; or

               (b)    discontinue an appeal;

at any time before the hearing of the application is commenced.

13            Manner of enforcing order for payment of costs

                An order made under subsection 37 (3) of the Act for the payment of the amount of any costs may be enforced:

                (a)    by the Commonwealth suing for and recovering the amount in a court of competent jurisdiction as if the amount were a debt due to the Commonwealth; or

               (b)    by deducting the amount from any pay and allowances earned by the appellant as a member of the Defence Force,

or partly in one way and partly in the other way.

16            Appellant in custody

         (1)   Where an appellant in custody is entitled to be present at the hearing of his or her appeal or application for leave to appeal, or of a matter preliminary or incidental to the appeal, the Registrar shall transmit to the person who has the custody of the appellant a certificate signed by the Registrar stating:

                (a)    that the appellant is so entitled; and

               (b)    particulars of the place where, and of the times at which, the appeal or application for leave to appeal, or the matter preliminary or incidental to the appeal, as the case may be, will be heard.

         (2)   Where a person who has the custody of an appellant receives a certificate under subregulation (1), he or she shall, and by these regulations is authorized to, take such steps as are necessary to ensure:

                (a)    that the appellant is taken to the place specified in the certificate at the times so specified; and

               (b)    that the appellant will continue to be present at that place during the hearing of the appeal or application for leave to appeal, or of the matter preliminary or incidental to the appeal, as the case may be.

         (3)   Where an appellant in custody is to be taken to a place at which he or she is entitled to be present for the purposes of the Act, the person who has the custody of the appellant shall ensure that the appellant is under guard:

                (a)    during the time the appellant is travelling to, and returning from, the place; and

               (b)    unless the Tribunal otherwise orders, during the time the appellant is present at the place.

17            Registry

         (1)   There shall be a Registry of the Tribunal, which shall be at such place as the President directs.

         (2)   The Registrar shall have the custody of such of the records of the Tribunal as are kept in the Registry and of the documents lodged or filed with the Registrar or a Deputy Registrar.

         (3)   The Registrar shall keep:

                (a)    proper records of proceedings before the Tribunal and of documents of which he or she has the custody; and

               (b)    such indexes as will enable documents of which he or she has the custody to be referred to.

18            Notification of hearing

                The Registrar must, as soon as practicable before the hearing to determine a question of law, the hearing of an appeal, the hearing of an application for leave to appeal, or the hearing of a matter preliminary or incidental to an appeal, notify the following persons, in writing, of the time, date and place of the hearing:

                (a)    the appellant or the legal practitioner, if any, by whom the appellant is to be represented at the hearing;

               (b)    the Chief of the Defence Force, or service chief, whose duty it is to undertake the defence of the appeal, application or matter by an appellant.

19            Copy of regulations to be supplied

              The Registrar shall, as soon as practicable after he or she receives an application for leave to appeal, supply the appellant with a copy of these regulations free of charge.

21            Assistant Registrar

         (1)   In this regulation, the assistant Registrar means:

                (a)    where there is one Deputy Registrar only — that Deputy Registrar; or

               (b)    where there is more than one Deputy Registrar — the Deputy Registrar appointed by the President to be the assistant Registrar.

         (2)   In the event of the absence, through illness or otherwise, of the Registrar or of a vacancy in the office of Registrar, the assistant Registrar has all the powers and functions, and shall perform all the duties, of Registrar during the absence or vacancy.

22            Fees to witnesses

                The allowances payable under subsection 34 (1) of the Act to a witness (other than a member of the Defence Force rendering service) are such fees and travelling expenses as the Registrar thinks fit to allow in accordance with the scale in the Second Schedule to the Public Works Committee Regulations as in force from time to time under the Public Works Committee Act 1969.

23            Fees for supplying copies

                Where a copy of a document relating to an appeal is supplied by the Registrar to the appellant, the appellant shall pay to the Registrar a fee of:

                (a)    where the number of pages of photocopy required to reproduce the document does not exceed 50 pages — $12; or

               (b)    where the number of pages of photocopy required to reproduce the document exceeds 50 pages — $12 plus 10 cents for each page of photocopy required in excess of 50.

24            Procedure following decision on appeal, application or matter

         (1)   When the Tribunal makes its decision on a question of law, an appeal, an application or a matter, the Tribunal must, as soon as practicable after making the decision, prepare a written statement that sets out the decision of the Tribunal on the question of law, appeal, application or matter.

         (2)   The Tribunal must, as soon as practicable after preparing a written statement under subregulation (1), provide a copy of the statement to the Registrar.

         (3)   The Registrar must, as soon as practicable after receiving a written statement under subregulation (2), give to the Registrar of Military Justice:

                (a)    a copy of the statement; and

               (b)    a copy of the record of proceeding of the Tribunal on the question of law, appeal, application or matter.

 


Notes to the Defence Force Discipline Appeals Regulations 1957

Note 1

The Defence Force Discipline Appeals Regulations 1957 (in force under the Defence Force Discipline Appeals Act 1955) as shown in this compilation comprise Statutory Rules 1957 No. 20 amended as indicated in the Tables below.

Table of Instruments

Year and
number

Date of notification
in Gazette or FRLI registration

Date of
commencement

Application, saving or
transitional provisions

1957 No. 20

23 May 1957

23 May 1957

 

1967 No. 48

20 Apr 1967

20 Apr 1967

1969 No. 214

30 Dec 1969

30 Dec 1969

1974 No. 187

15 Oct 1974

15 Oct 1974

1977 No. 122

28 July 1977

28 July 1977

1985 No. 161

5 July 1985

3 July 1985 (see Gazette 1985, No. S255)

1997 No. 74

14 Apr 1997

14 Apr 1997

2007 No. 299

27 Sept 2007 (see F2007L03875)

1 Oct 2007 (see r. 2)

2008 No. 186

19 Sept 2008

20 Sept 2008

2009 No. 360

16 Dec 2009 (see F2009L04491)

17 Dec 2009

Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

 

Provision affected

How affected

R. 1.........................................

am. 1985 No. 161

 

rs. 2007 No. 299

R. 2.........................................

am. 1967 No. 48; 1977 No. 122; 1985 No. 161; 1997 No. 74; 2009 No. 360

 

rs. 2007 No. 299

R. 3.........................................

am. 1977 No. 122; 2007 No. 299

Rr. 4, 5...................................

am. 1977 No. 122

 

rep. 1985 No. 161

R. 6.........................................

rep. 1985 No. 161

Rr. 7, 8...................................

am. 1977 No. 122

 

rep. 1985 No. 161

R. 9.........................................

am. 1977 No. 122

 

rs. 1985 No. 161

 

am. 2007 No. 299; 2009 No. 360

Heading to r. 10...................

rs. 2007 No. 299

R. 10.......................................

am. 1977 No. 122

 

rs. 1985 No. 161

 

am. 1997 No. 74; 2007 No. 299

 

rs. 2008 No. 186; 2009 No. 360

R. 11.......................................

am. 1977 No. 122; 1985 No. 161; 2007 No. 299; 2009
No. 360

R. 12.......................................

rs. 2007 No. 299

 

am. 2008 No. 186; 2009 No. 360

R. 13.......................................

am. 1977 No. 122; 2007 No. 299; 2009 No. 360

Rr. 14, 15...............................

am. 1977 No. 122

 

rep. 1985 No. 161

Heading to r. 16...................

rs. 2007 No. 299; 2009 No. 360

R. 16.......................................

am. 1977 No. 122; 1985 No. 161; 2007 No. 299; 2009
No. 360

R. 17.......................................

am. 2007 No. 299

R. 18.......................................

am. 1977 No. 122; 1985 No. 161; 1997 No. 74

 

rs. 2007 No. 299

 

am. 2008 No. 186; 2009 No. 360

R. 19.......................................

am. 2007 No. 299; 2009 No. 360

R. 20.......................................

rep. 1974 No. 187

R. 21.......................................

am. 2007 No. 299

R. 22.......................................

rs. 1967 No. 48; 1969 No. 214

 

am. 1977 No. 122

R. 23.......................................

am. 1967 No. 48

 

rs. 1977 No. 122

 

am. 1985 No. 161; 2007 No. 299; 2009 No. 360

R. 24.......................................

ad. 2007 No. 299

 

am. 2008 No. 186; 2009 No. 360

The Schedule.......................

rep. 1967 No. 48