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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MILITARY JUSTICE (INTERIM MEASURES) BILL (NO. 1) 2009
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Defence
Senator the Hon John Faulkner)
MILITARY JUSTICE (INTERIM MEASURES) BILL (No. 1) 2009
GENERAL OUTLINE
On the 26 August 2009, the High Court declared that the provisions
establishing the Australian Military Court (AMC) are invalid. The purpose
of this Bill is to return to the service tribunal system that existed
before the creation of the AMC. This is an interim measure until the
Government can legislate for a Chapter III court. To re-establish an
effective military justice system, the pre-2007 Defence Force Discipline
Act 1982 (DFDA) will be reinstated. These measures will include:
. courts martial and Defence Force magistrates;
. positions of Chief Judge Advocate, Judge Advocates and the Registrar
of Military Justice;
. reviews and petitions in respect of both summary trials and trials
held by Courts martial or Defence Force magistrates; and
. Reviewing Authorities.
The previous amendments to the DFDA directed to improve the Summary
Authority system, will be retained. The class of offence system which
determined how an offence would be dealt with by the AMC was not
specifically struck down by the High Court, but this system will be
repealed by the Bill.
The positions of the Judge Advocate General and Deputy Judge Advocates
General will remain and assume many of the roles previously performed by
the Chief Military Judge.
Transitional provisions will be inserted into the DFDA to cover all matters
that have been referred on appeal to the AMC but not concluded prior to 26
August 2009. The provisions will also provide for automatic transition of
AMC office holders to the relevant positions of Chief Judge Advocate, as
members of the judges advocates' panel and as Registrar of Military
Justice. The provisions also address the waiver of the Commonwealth's
right to recover any amount from the AMC office holders. This waiver would
not amount to an appropriation for the purposes of section 53 of the
Constitution.
Other consequential amendments to the Defence Force Discipline Appeals Act
1955, the Judges' Pensions Act 1968, the Migration Act 1958 and the Defence
Act 1903 will be required. These will deal with appeals to the Defence
Force Discipline Appeal Tribunal (DFDAT) from the AMC and provisions
relating to the AMC in these Acts and associated Regulations.
Financial Impact Statement
The amendments in the Bill will have no additional impact on Commonwealth
expenditure or revenue.
NOTES ON CLAUSES
Clause 1: Short title
1 This clause provides for the short title of the Act to be the
Military Justice (Interim Measures) Act (No. 1) 2009.
Clause 2: Commencement
2 This clause provides that the Act will commence on the day it
receives the Royal Assent.
Clause 3: Schedules
3 This clause provides that the items specified in a Schedule are
amended or repealed as set out in the applicable items in the Schedule, and
other items in a Schedule have effect according to its terms.
SCHEDULE 1 - Amendments relating to the system of military justice
4 Schedule 1 amends the Defence Force Discipline Act 1982 to reinstate
the military justice system as it existed before the Australian Military
Court was established.
Part 1 - Main amendments
Defence Force Discipline Act 1982
Clause 1 - Subsection 3(1) - (definition of appropriate authority)
5 This clause repeals the paragraph and substitutes a new paragraph to
change the definition of 'appropriate authority'.
Clauses 2 and 3 - Subsection 3(1) - (definitions of Australian Military
Court and Australian Military Court Rules)
6 These clauses repeal the definitions of 'Australian Military Court'
and the 'Australian Military Court Rules'.
Clause 4 - Subsection 3(1) - (definition of Chief Judge Advocate)
7 This clause inserts a definition of 'Chief Judge Advocate'.
Clauses 5-8 - Subsection 3(1) - definitions
8 These clauses repeal the definitions of 'Chief Military Judge',
'class 1 offence', 'class 2 offence' and 'class 3 offence'.
Clause 9 - Subsection 3(1) - (definitions of competent reviewing authority)
9 This clause omits 'subsection 150(2)' and substitutes 'section 150A'.
Clauses 10-11 - Subsection 3(1) - (definition of a convicted person)
10 Clause 10 inserts 'reviewing authority' after 'tribunal' in the
definition of 'convicted person'. Clause 11 inserts the definition of
'Court Martial and Defence Force Magistrate Rules'.
Clause 12 - Subsection 3(1) - definitions
11 This clause inserts the definition of 'Defence Force magistrate'
which means a Defence Force magistrate appointed under section 127.
Clauses 13-14 - Subsection 3(1) - definitions
12 These clauses insert the definition of 'judge advocate' which in
relation to a court martial, means the judge advocate of a court martial
and insert the definition of 'judge advocates' panel'.
Clauses 15-16 - Subsection 3(1) - definitions
13 These clauses repeal the definitions for 'Military Judge' and
'military jury' respectively.
Clause 17 - Subsection 3(1) - definitions
14 This clause inserts the definition of 'prescribed acquittal'.
Clauses 18 and 20 - Subsection 3(1) - definitions
15 These clauses insert definitions for 'President' and 'Registrar'
respectively.
Clause 19 - Subsection 3(1) - (definition of Provost Marshal Australian
Defence Force)
16 This clause repeals the definition of 'Provost Marshal Australian
Defence Force'.
Clause 21 - Subsection 3(1) - definitions
17 This clause repeals the definition of 'review' and substitutes a new
definition.
Clause 22 - Subsection 3(1) - definitions
18 This clause omits reference to 'subsection 150(1)' and substitutes
'section 150'.
Clause 23 - Subsection 3(1) - (definition of rules of procedure)
19 This clause replaces 'Australian Military Court Rules' with 'Court
Martial and Defence Force Magistrate Rules' in the definition of 'rules of
procedure'.
Clause 24 - Subsection 3(1) - (definition of service tribunal)
20 This clause omits the 'Australian Military Court' from the
definition of 'service tribunal' and substitutes 'a court martial, a
Defence Force magistrate'.
Clause 25 -Section 5A - Appointment of a 'superior authority'
21 This clause repeals Section 5A, and reinstates the 2006
definition.
Clauses 26, 27, 28 - Paragraphs 53(4) (a) and (d), Subsections 53(5) and
(6) - Contempt of service tribunal
22 Clause 26 repeals paragraph 53(4)(a), substituting a paragraph
which makes a defence member or defence civilian guilty of an offence if
that person insults a member of a court martial, a judge advocate, a
Defence Force magistrate or a summary authority in or in relation to the
exercise of his or her powers or functions as such a member.
23 Clause 27 repeals paragraph 53(4)(d), substituting a paragraph
which makes a defence member or a defence civilian guilty of an offence if
that person engages in any other conduct that would, if a service tribunal
were a court, constitute contempt of that court.
24 Clause 28 repeals subsections 53(5) and (6), substituting them
with subsections where an offence under subsection (4) is committed against
a service tribunal that is a court martial or a Defence Force magistrate,
during proceedings, the tribunal may order that the person be taken into
custody and call the person to show cause why the person should not be
convicted of an offence. The substitute for subsection (6) provides the
maximum offence under subsection (5) if a tribunal convicts a person.
Clause 29 - Subsection 67(1) - Authorised punishments
25 This clause repeals the subsection and substitutes that a court
martial or a Defence Force magistrate must not impose a punishment in
respect of a conviction except in accordance with Part IV and Schedule 2.
Clauses 30-31 - Subsection 74(4A) and (4B) - Concurrent and cumulative
punishments
26 These clauses omit the term 'summary authority' and replace it
with 'service tribunal'.
Clause 32 - Subsection 74(5) - Concurrent and cumulative punishments
27 This clause inserts the words 'or a reviewing authority that
has revoked a suspension of a punishment on the recommendation of a service
tribunal' after 'service tribunal'.
Clause 33 - Subsection 74(5A) - Concurrent and cumulative punishments
28 Omits 'summary authority' (wherever occurring) and substitutes
'service tribunal'.
Clause 34 - Section 77 - Taking other offences into consideration
29 This clause repeals the section and substitutes a section which
refers to a court martial or a Defence Force magistrate in place of
references to the Australian Military Court.
Clause 35 - Section 80 - Revocation of suspension of punishment
30 This clause repeals the section and substitutes a new section
that makes references to 'service tribunals'.
Clause 36 - Subsection 81(2) - Remission of suspended punishment
31 This clause inserts '162(8)' after '78(1)'.
Clause 37 - Subparagraphs 87(1) (c) (ii) - Summons and order in the nature
of summons
32 This clause repeals the subparagraphs and substitutes a new sub
paragraphs references to a Defence Force magistrate or a court martial
rather than the Australian Military Court.
Clause 38 - Subsection 88(1A) - Arrest, summons etc. where accused person
not present at hearing before service tribunal
33 This clause repeals the subsection and substitutes a new
subsection with references to a judge advocate or Defence Force magistrate
rather than the Australian Military Court.
Clauses 39-40 - Subsections 99(1) and 100(5) (b)
34 This clause omits reference to 'summary authority' and
substitutes with 'Service tribunal'.
Clause 41 - Subsection 101F (5) (a) - Lists of Legal Officers
35 This clause omits 172(5) and substitutes 172(3A), (4) or (5).
Clauses 42-46 - Subsections 101J (1), 101JA (3), 101JA (4) 101JA (5), 101K
(8), (9) - Investigation of Service Offences
36 These clauses repeal the subsections and substitute new
subsections which refer to 'judge advocate of a court martial'.
Clauses 47-56 - Subsections 101K(10), 101K(11), 101Q(13)(b), 101ZB(1), (2),
(3) and (4) - Investigation of Service Offences
37 These clauses insert references to 'court martial', 'judge
advocate of the court martial', and 'judge advocate'.
Clause 51 - Division 6A of Part VI
38 This clause repeals the Division.
Clause 57 - Subsection 103(1)
39 This clause omits reference to section 101ZAA.
Clauses 58 and 66 - Paragraphs 103(1)(c) and 103(4)(a) - Director of
Military Prosecutions
40 This clause repeals the paragraph and substitutes new
paragraphs that reflect that the Director of Military Prosecutions may
request the Registrar to refer the charge to a Defence Force Magistrate or
convene a court martial.
Clauses 59-60 - Subsection 103(1) (note) and end of subsection 103(1)
(after note) - Director of Military Prosecutions
41 These clauses insert '1' after 'Note' and add Note 2.
Clauses 62 - Subsection 103(2A) - Director of Military Prosecutions
42 This clause omits reference to '165' and substitutes '166'.
Clause 63
43 This clause omits reference to the 'Australian Military Court'
(first occurring) and substitutes 'a reviewing authority'.
Clauses 61, 64-65, 68, 70 and 71 - Subsections 103(2), 103(2A), paragraph
103(4)(a) subsection 111B(1), section 111C and Subsection 111C(6) -
Director of Military Prosecutions and right of election
44 These clauses omits references to the 'Australian Military
Court' and substitutes 'a court martial or Defence Force Magistrate'.
Clauses 67 and 69 - Section 103A and subsection 111B(1) (note 3) - Right of
election
45 These clauses repeal section 103A and Note 3 to 111B(1).
Clause 71 - Subsection 111C(6)
46 This clause omits reference to 'the Court' and substitutes 'a court
martial or Defence Force magistrate'.
Clause 72 - Divisions 3, 4 and 5 of Part VII - Courts martial and Defence
Force Magistrates
47 This clause repeals the Divisions and substitutes the
following:
48 Division 3 - Reinstates the system of Courts martial:
sections 114-116 provide details on the types of courts
martial, the jurisdiction of courts martial, and the
eligibility requirements to be a member of court martial. Section 117
provides the eligibility to be a judge advocate. Sections 119-
126 provide convening order provisions, objection on
grounds of eligibility, notification of belief of bias,
substitution and replacement of members, dissolution of court martial
and inability to attend after plea.
49 Division 4 - Reinstates the system of Defence Force
magistrates: this Division provides for appointment, oath
and affirmation, jurisdiction and powers of Defence Force
magistrates, and discontinuance of proceedings before the
Defence Force magistrate.
50 Division 5 - Nomination of Defence Force magistrates and
members of courts martial: this Division provides for the
appointment of members of courts martial and for the nomination
of Defence Force magistrates by the Judge Advocate General.
Clause 73 - Section 129
51 This clause renumbers section 129 as 'section 129D'.
Clauses 74-81 - Subsections 131(3) (including note 1 and note 3), 131AA(1),
131AA(3), 131AA(5)(a)(i), (6) and (7)
52 These clauses omit references to the 'Australian Military
Court' and substitute 'a court martial or Defence Force magistrate' and
repeals note 3 to subsection 131(3).
Clause 82 - Division 2 of Part VIII - Trial by court martial or Defence
Force magistrate
53 This clause repeals Division 2 - Trial by the Australian
Military Court and substitutes a new Division 2 - Trial by court martial or
Defence Force magistrate that reinstates the trial procedures for courts
martial and Defence Force magistrates.
Clause 83 - Section 137A
54 This clause repeals the section.
Clauses 84-86 - Subsections 138(4) and 139(2)
55 These clauses insert references to a 'court martial' and 'the
President of the court martial'.
Clause 87 - Subsection 139(2)
56 This clause inserts subsection (2A), which requires the
President of a court martial to consult the judge advocate prior to making
an order.
Clause 88 - Section 140 - Public hearings
57 This clause repeals the section and substitutes a section which
omits references to the Australian Military Court.
Clause 89 - Subsection 141(2) - Applications and objections
58 This clause repeals the subsection and substitute new
subsection which refer to a court martial rather than military juries.
Clauses 90-95 - Subsections 141(4), (5), (6), and paragraphs (5)(b), (6)(a)
and (6)(b) - Applications and objections
59 These clauses insert references to court martial, judge
advocate and the President of a court martial.
Clause 96 - Subsections 141(7) and (8) - Applications and objections
60 This clause repeals the subsections and substitutes new
subsections which refer to trial by a court martial and a Defence Force
magistrate or judge advocate in place of a Military Judge and Australian
Military Court.
Clause 97 - Section 141A - Amendment of charges
61 This clause repeals the section and substitutes a new section
which refers to the judge advocate of a court martial and a Defence Force
magistrate.
Clause 98 - Section 144(1) (note)
62 This clause repeals the note.
Clause 99 - Subsection 144(2) - Previous acquittal or conviction
63 This clause omits references to the 'Australian Military Court'
and substitutes 'a court martial or Defence Force Magistrate'.
Clause 100 - Paragraph 144(4)(a) - Previous acquittal or conviction
64 This clause omits reference to '133B or 132D' and substitutes '132 or
135'.
Clause 101 - Subsection 145(2) - Unsoundness of mind
65 This clause repeals the subsection and substitutes a new
subsection which omits the reference to the Australian Military Court and
replaces them with court martial or Defence Force magistrate.
Clause 102 - Subsections 145(4) and (5)
66 This clause repeals the subsections and substitutes new
subsections which omit all references to Military Judge, military jury and
Australian Military Court and replaces them with court martial or Defence
Force magistrate.
Clause 103 - Section 145A - Notice of alibi
67 This clause repeals the section and substitutes a new section
which omits references to the Australian Military Court, and replaces them
with court martial or Defence Force magistrate.
Clause 104 - Subsection 146(1) - Evidence in trials
68 This clause omits 'the Australian Military Court' (first
occurring), and substitutes 'a court martial or Defence Force magistrate'.
Clause 105 - Paragraph 146(1)(a) - Evidence in trials
69 This clause omits 'the Australian Military Court' and
substitutes 'a court martial or Defence Force magistrate'.
Clause 106 - Subsection 146(2) - Evidence in trials
70 This clause omits 'the Australian Military Court' and
substitutes 'a court martial or Defence Force magistrate'.
Clause 107 - Subsection 147(1) - Judicial notice of service matters
71 This clause repeals the subsection and substitutes a new
subsection which omits 'the Australian Military Court' and replaces it with
'service tribunal'.
Clause 108 - Subsection 148(2) - Record of proceedings to be kept
72 This clause removes reference to 'The Australian Military
Court' and substitutes reference to 'The President of a court martial'.
Clauses 108-109 - Subsection 148(2) - Record of proceedings to be kept
73 This clause removes references to 'The Australian Military
Court' and substitutes 'The court martial or Defence Force magistrate'.
Clause 110 - Heading to Subdivision B of Division 3 Part VIII
74 This clause repeals heading and substitutes 'Subdivision B -
Use of video links and audio links by the courts martial and Defence Force
Magistrates'.
Clauses 111-115- Subsection 148A(1), Paragraph 148(2)(c), Subsections
148A(3), 148A(4), Paragraph 148A(4)(b) - Testimony by video link or audio
link
75 These clauses omit references to the court and insert
references to court martial or Defence Force Magistrates.
Clause 116 - Subsection 148B(1)
76 This clause repeals subsection and inserts new subsection that
makes reference to President of a court martial or Defence Force
magistrate.
Clause 117-139 - Amendments to sections 148B-149A - Appearance of persons
or submissions made by video link or audio link
77 These clauses make changes to the video link and audio link
provisions in order to remove references to the 'court' or 'Australian
Military Court' and insert references to courts martial and Defence Force
Magistrates. The clauses also remove references to 'Chief Military Judge'
and inserts references to 'Judge Advocate General'. References to
'Australian Military Court Rules' are also replaced by reference to 'Court
Martial and Defence Force Magistrate Rules'.
Clauses 140 and 142 - Subparagraphs 149A(a)(iii) and 149A(a)(xa) -
Appearance of persons or submissions made by video link or audio link
78 These clauses repeal the subparagraphs.
Clauses 141 and 143 - Subparagraphs 149A(a)(vii) - (xiii) - Appearance of
persons or submissions made by video link or audio link
79 These clauses omit references to 'court' and substitutes 'court
martial or Defence Force Magistrate'.
Clause 144 - Paragraph 149A(b) - Appearance of persons or submissions made
by video link or audio link
78 This clause repeals the paragraph.
Clause 145 - Heading to Part VIIIA
79 This clause repeals heading and substitutes 'Part VIIIA -
Review of Proceedings of service tribunal'.
Clause 146 - Division 1 of Part VIII (heading)
80 This clause repeals heading and substitutes 'Division 1 -
Appointment of reviewing authorities'.
Clause 147 - Sections 150 and 150A
81 This clause repeals the sections and substitutes a new section
that contains reference to service tribunal rather than summary
authorities.
Clause 148 - Sections 151, 152-153
82 This clause repeals the sections and reinstates sections 152
and 153 from the DFDA as it stood on 12 June 2006 (the 2006 Act) to
reinstate the former automatic review and petition provisions.
Clause 149 - Sections 153A, 154 and 155 - Review and Petition
83 This clause repeals these sections and substitutes sections
154, 155 and 156 from the 2006 Act to reinstate former review and petition
provisions.
Clause 150 - Division 3 of Part V111
84 This clause repeals the Division and substitute three new
Divisions that reinstate former review and petition mechanisms.
Division 3: Action on review of proceedings that have resulted
in a conviction.
Division 4: Action on review of proceedings that have resulted
in an acquittal on the ground of unsoundness of mind.
Division 5: Action on review of certain punishments and orders
that are subject to approval by reviewing authority.
Clause 151 - Part IX
85 This clause repeals the subsection.
Clause 152 - Subsection 171(1B)
86 This clause repeals the section.
Clause 153 - Sections 172, 172A and 173
87 This clause repeals the sections and substitutes sections 172
and 173 from the 2006 Act to reinstate provisions relating to punishments
and orders subject to approval, and suspension of restitution and
reparation orders.
Clause 154 - Section 176
88 This clause repeals the section and substitutes section 176
from the 2006 Act.
Clause 155 - Part XI(heading) and Divisions 2 and 2A of Part XI - Judge
advocate General, Deputy Judge Advocates General, Chief Judge Advocate and
Registrar of Military Justice
89 This clause repeals the heading and substitutes 'Part XI -
Judge Advocate General, Deputy Judge Advocates General, Chief Judge
Advocate and Registrar of Military Justice'.
Clause 156 - Divisions 2 and 2A of Part XI
90. This clause repeals the Division and reinstates Division 2 from the
2006 Act.
Clauses 157-160 - Heading to Division 3 of Part XI and Division 3
91 These clauses repeal the heading and substitutes a new heading
'Division 3 - The Registrar of Military Justice'. These clauses also omit
reference to the Australian Military Court and substitute reference to
Military Justice. These clauses also repeal subsection 188FA(1) and
substitutes wording for the Registrar. In relation to oath or affirmation
under subsection 188FF(2), this subsection is repealed and the subsection
from the 2006 Act is reinstated (reference to Judge Advocate General,
Deputy Judge Advocate, or Chief Judge Advocate).
Clauses 161-162 - Paragraph 188GA(1)(a) and section 188GB - Director of
Military Prosecutions
92 These clauses remove references to Australian Military Court
and substitute references to court martial or Defence Force Magistrate,
Judge Advocate, Deputy Judge Advocate and Chief Judge Advocate as
necessary.
Clause 163 Subsection 188(GJ)(2)
93 This clause repeals the subsection and reinstates the
subsection from the 2006 Act in relation to oath or affirmation.
Clauses 164 and 166 - Paragraphs 191(1)(b) and 191(1)(e) - Evidentiary
Certificates
94 These clauses correct cross references and repeal paragraph
191(1)(e).
Clause 165 - Paragraph 191(1)(d)
95 This clause makes changes to punctuation within the paragraph.
Clause 168 - Subsection 194(1)
96 This clause inserts '158' after '145'.
Clauses 167 and 169 - Subsections 193(1), 195(1) and (2)
97 These clauses correct cross references and remove references to
'Australian Military Court' and substitute references to 'court martial' or
'Defence Force magistrate'.
Clauses 170 - 173 - After section 195, paragraph 196A(1)(a), paragraph 196A
and section 196C.
98 These clauses insert provisions related to the Judge Advocates'
panel, inserts reference to the Court Martial and Defence Force Magistrate
Rules, repeals paragraph 196A(5) and section 196C.
Clause 174 - Schedule 2
99 This clause repeals the schedule and reinstates schedule 2 from
the 2006 Act that provides for the punishments available to courts martial
and Defence Force Magistrates.
Clause 175 - After Schedule 4
100 This clause inserts Schedule 5, which contains the form for
Oaths and Affirmations.
Clause 176 - Schedule 7
101 This clause repeals Schedule 7.
Part 2 - Consequential amendments of other Acts
Defence Act 1903
102 Clauses 177 and 178 repeals and substitutes paragraphs 89(1)(a) and
(d) of the Defence Act 1903 (contempt of a service tribunal), so that
references to 'Military Judge', 'military jury' and 'Australian Military
Court' are replaced with 'court martial', 'a judge advocate', 'a Defence
Force magistrate'.
103 Clause 179 repeals and substitutes subsection 89(2) to reinstate the
definitions of 'court martial', 'judge advocate', 'Defence Force
magistrate' and 'summary authority' as they existed prior to the amendments
made in 2006.
104 Clause 180 repeals subsection 116C(2) and (2A) and substitutes
subsection 116C (2) (Forces serving together) to reinstate subsection (2)
as it existed prior to the amendments in 2006. The effect of the section
remains the same.
105 Clause 181 saves any appointments made by the Governor-General under
subsection 116C (2), as if they had been made under that section after the
commencement day.
Defence Force Discipline Appeals Act 1955
106 These amendments reinstate the provisions that existed prior to the
introduction of the Defence Legislation Amendment Act 2006 and Defence
Legislation Amendment Act 2008 to reverse any references to the AMC which
relate primarily to the replacement of the terms 'court martial', 'Defence
Force magistrate' and 'judge advocate' with the new concepts of 'Military
Judge' 'military jury' and 'Australian Military Court'.
107 The amendments reflect the return to the previous system by:
. replacing references in the relevant provisions of the Defence Force
Discipline Appeals Act 1955 to 'Australian Military Court', 'Military
Judge', 'military jury' with 'court martial', 'Defence Force
magistrate';
. reinstating the provisions in respect of appeals to the Defence Force
Discipline Appeal Tribunal, the recognition of reviews under Part
VIIIA of the DFDA, and appeal on a question of law to the Federal
Court, as they previously existed.
108 Clauses 182 to 200 amend various sections in this Act to replace
references to 'Australian Military Court', 'Military Judge', 'military
jury', 'Director of Military Prosecutions', 'offender appellant' with
references to 'court martial', 'Defence Force magistrate' and so on.
109 Clauses 201 through to 248 amend various provisions in the Act in the
same way as clauses 1 to 19, but they also amend other sections to give
effect to reinstating the provisions in respect of appeals to the Defence
Force Discipline Appeal Tribunal, the recognition of reviews under Part
VIIIA of the DFDA (Act), and a reference of law to the Federal Court, as
they previously existed.
Judges' Pension Act 1968
110 In developing the Defence Legislation Amendment Act 2006, the Judges
Pensions Act 1968 was amended to avoid an unintended consequence
of Military Judges of the AMC potentially being eligible for pensions and
other benefits under that Act, in addition to their military pensions.
Clause 249 will omit the reference to 'Australian Military Court' and
reinstate the definition that existed prior to the 2006 amendments.
Migration Act 1958
111 Subsections 500A(14) and 501(12) of the Act were amended to include a
reference to 'the Australian Military Court or a court martial or similar
military tribunal of another country', to reflect the establishment of the
AMC by the Defence Legislation Amendment Act 2006. Prior to this,
subsections 500A (14) and 501(12) defined 'court' to mean 'a court martial
or similar military tribunal'. Clause 250 and 251 will reinstate the
previous provisions. As before, the overall operation of the Act will
remain unchanged. Importantly, an overseas military tribunal retains its
necessary powers conferred on it by the Act.
SCHEDULE 2 - Applications and transitional provisions relating to
proceedings
Part 1 - Definitions and preliminary
Clause 1 - Definitions
1 This clause inserts definitions for 'AMC', 'amended Defence Force
Discipline Act', 'commencement day', 'DFDAT', 'High Court decision date',
'old Defence Force Discipline Act', 'Registrar' and 'Part IV order'. These
definitions apply in Schedule 2 only.
Clause 2 - Application of the amendments
2 This clause defines when the amendments in Schedule 1 apply.
Part 2 - Transitional provisions
Division 1 - Incomplete AMC proceedings
Clause 3 - Charges purportedly referred to the AMC other than as a result
of an election - no punishment imposed
3. This clause explains the process under the 'amended Defence Force
Discipline Act' for charges that were referred to the AMC under the
'old Defence Force Discipline Act'.
Clause 4 - Charges purportedly referred to the AMC as a result of an
election, etc. - no punishment imposed
4. This clause explains the process under the 'amended Defence Force
Discipline Act' for charges that were referred to the AMC as a result
of an election under the 'old Defence Force Discipline Act'.
Clause 5 - Part-heard purported appeals to the AMC
5. This clause explains the process to be followed under the 'amended
Defence Force Discipline Act' in relation to part-heard appeals made
to the AMC under 'old Defence Force Discipline Act'.
Division 2 - Incomplete summary authority proceedings
Clause 6 - Division does not apply if an election required
6. This clause provides that division 2 does not apply to summary
authority proceedings where the person was not required to be given
the opportunity to elect to have the matter tried by the AMC.
Clause 7 - Summary authority proceedings started but not completed before
commencement
7. This clause explains the process to be followed under the 'amended
Defence Force Discipline Act' in relation to matters that were before
a summary authority but not completed; or matters before a summary
authority that were completed but not yet reviewed under the 'old
Defence Force Discipline Act'.
Clause 8 - Summary authority proceedings - review proceedings started but
not completed before commencement.
8. This clause explains the process to be followed under the
'amended Defence Force Discipline Act' where a member has been
convicted by a summary authority and a review under Part VIIIA of the
'old Defence Force Discipline Act' has not been completed.
Clause 9 - Trials resulting in punishment by a summary authority - review
proceedings completed before commencement day
9. This clause explains the process to be followed under the
'amended Defence Force Discipline Act' where a summary authority
imposed a punishment or order on a person and a review under Part
VIIIA of the 'old Defence Force Discipline Act' has been completed.
Clause 10 - Stays of punishment
10. This clause explains the process to be followed under the
'amended Defence Force Discipline Act' where a summary authority
stayed the execution of punishment pending the determination of an
appeal to the AMC and the AMC had not yet determined the appeal under
the 'old Defence Force Discipline Act'.
Schedule 3 - Application and transitional provisions relating to office
holders
Clause 1 - Definitions
11 This clause inserts definitions for 'AMC', 'amended Defence Force
Discipline Act', 'commencement day', 'High Court decision date', 'member',
'old Defence Force Discipline Act', 'Permanent Forces', 'Registrar' and
'Remuneration Tribunal'. These definitions apply in Schedule 3 only.
Clause 2 - Current Chief Military Judge automatically becomes the Chief
Judge Advocate
12 This clause provides for the person that purportedly held the
office of Chief Military Judge (CMJ) immediately before the High Court
decision date to be appointed on the commencement day as the Chief Judge
Advocate (CJA). The appointment is for the lesser of 2 years from the
commencement day or the period from the commencement day until the office
of CJA ceases to exist.
13 The appointment as CJA is on the same terms and conditions as to
remuneration, allowances, recreation leave and other leave entitlements
as purportedly applied to the person immediately before the High Court
decision date. This may be otherwise prescribed, but must not be less than
the value of the terms and conditions that previously applied.
14 The person must not engage in employment outside the duties of the
office of CJA, but may undertake other roles in the Australian Defence
Force. The person does not hold public office within the meaning of the
Remuneration Tribunal Act 1973.
Clause 3 - Benefits on ceasing to hold office
15 This clause provides the benefits which may be payable to the person
who is taken to hold the office of CJA if that office ceases to exist
before the end of the period of 2 years from the commencement day.
16 The benefits are based on what would have been payable had
Determination 2009/07 of the Remuneration Tribunal otherwise applied
immediately before the High Court decision date with some adjustment to
reflect the fact that the person will have continued to receive the same
terms and conditions regarding remuneration, allowances, recreation leave
and other leave entitlements for up to 2 years after the High Court
decision date.
17 The clause provides that for the purposes of working out the amount
that the person would have been entitled to be paid the period is to be
reduced by the number of months during which the person held office as CJA.
The effect of this is that the period for calculating the months of
service remaining is the period from the High Court decision date, less the
number of months that the person has served as CJA from the commencement
day, until the earlier of the person's compulsory retirement age under the
Defence (Personnel) Regulations 2002 or what would have been the expiry
date of the term of office of the purported CMJ.
18 The benefits will not be payable if the Commonwealth has offered
suitable alternative employment to the CJA or, if before the office of CJA
ceases to exist, the person ceases to be a member of the permanent forces.
19 Payment of the benefit will lead to the member automatically
transferring to the reserves in line with regulation 64 of the Defence
(Personnel) Regulations 2002.
Clause 4 - Current Military Judges automatically become members of the
judge advocates' panel.
20 This clause provides for a person who purportedly held office as a
Military Judge (MJ) under section 188AP of the 'old Defence Force
Discipline Act' immediately before the High Court decision date to be
appointed on the commencement day as a member of the judge advocates'
panel, as if the person had been duly appointed by the Chief of the Defence
Force under subsection 196(2) of the amended Defence Force Discipline Act.
The appointment is for the lesser of 2 years from the commencement day or
the period from the commencement day until the judge advocates' panel
ceases to exist.
21 The appointment of the person is on the same terms and conditions as
to remuneration, allowances, recreation leave and other leave
entitlements as purportedly applied to the person immediately before the
High Court decision date. This may be otherwise prescribed, but must not
be less than the value of the terms and conditions that previously applied.
22 The person must not engage in employment outside the duties of a
member of the judge advocates' panel, but may undertake other roles in the
Australian Defence Force. The person does not hold public office within
the meaning of the Remuneration Tribunal Act 1973.
Clause 5 - Benefits on member of judge advocates' panel ceasing to hold
office.
23 This clause provides the benefits which may be payable to a person
who is taken to be a member of the judge advocates' panel if that office
ceases to exist before the end of the period of 2 years from the
commencement day.
24 The benefits are based on what would have been payable had
Determination 2009/07 of the Remuneration Tribunal otherwise applied
immediately before the High Court decision date with some adjustment to
reflect the fact that the person will have continued to receive the same
terms and conditions regarding remuneration, allowances, recreation leave
and other leave entitlements for up to 2 years after the High Court
decision date.
25 The clause provides that for the purposes of working out the amount
that the person would have been entitled to be paid the period is to be
reduced by the number of months during which the person held office as a
member of the judge advocates' panel. The effect of this is that the
period for calculating the months of service remaining is the period from
the High Court decision date, less the number of months that the person has
served as a member of the judge advocates' panel from the commencement day,
until the earlier of the person's compulsory retirement age under the
Defence (Personnel) Regulations 2002 or what would have been the expiry
date of the term of office of the person as a purported MJ.
26 The benefits will not be payable if the Commonwealth has offered
suitable alternative employment to the person or, if before the judge
advocates' panel ceases to exist, the person ceases to be a member of the
permanent forces.
27 Payment of the benefit will lead to the member automatically
transferring to the reserves in line with regulation 64 of the Defence
(Personnel) Regulations 2002.
Clause 6 - Current Registrar of the AMC automatically becomes the Registrar
of Military Justice
28 This clause applies to a person who purportedly held office as
Registrar of the AMC under section 188FB of the 'old Defence Force
Discipline Act' immediately before the High Court decision date. The
person is taken to be appointed on the commencement day by force of this
item, as the Registrar of Military Justice, as if the person had been duly
appointed by the Minister under section 188FB of the amended Defence Force
Discipline Act.
29 The clause also sets out the terms and conditions which will apply to
the person.
Clause 7 - Waiver relating to amounts paid to purported office holders
30 This clause makes clear that the Commonwealth has waived any right to
recover any amount from the persons who purportedly held the offices of
CMJ, MJ and Registrar for the period of 1 October 2007 to the commencement
day which might otherwise been recoverable on the basis that the offices
did not exist during that period.
Schedule 4 - Other matters
Clause 1 - Savings provisions relating to section 5A of the Defence Force
Discipline Act 1982
31 This clause saves any actions of a Superior Authority under the 'old
Defence Force Discipline Act' and gives effect to those actions from the
commencement day.
Clause 2 - Regulations
32 This clause allows for the making of regulations by the Governor-
General.