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

Bills Digest no. 101 2012–13

PDF version  [285KB]

WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Ian McCluskey
Law and Bills Digest Section 
16 April 2013

Contents
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Statement of Compatibility with Human Rights
Policy position of non-government parties/independents
Financial implications
Key issues and provisions
Concluding comments

 

The Bills Digest at a glance

This Bill accompanies the Military Court of Australia Bill 2012 (the principal Bill), which seeks to establish the Military Court of Australia under Chapter III of the Constitution.

This Bill amends the Defence Force Discipline Act 1982 to accommodate the new Military Court of Australia in the overall military law legislative scheme. This Bill also makes minor amendments to other legislation.

This Bill retains the present system of courts martial and Defence Force magistrates for use in exceptional situations where it is not possible for the Military Court of Australia to sit overseas.

This Bill has been inquired into and reported on by the Senate Legal and Constitutional Affairs Legislation Committee.

It is suggested that consideration of the Bill is dependent on whether or not the Parliament passes the Military Court of Australia Bill 2012 should determine the fate of this Bill. It is not feasible for one of the Bills to be passed without the other.

Issues identified in this Bills Digest are:

  • there is no express provision made in either this Bill or the principal Bill for judicial review of decisions made by summary authorities and
  • proposed subsection 62(7) provides that it is not an offence to command or order a person to commit offences against provisions in the Criminal Code concerning attempt, incitement and conspiracy—it is unclear why.

Date introduced: 21 June 2012

House: House of Representatives

Portfolio: Attorney-General

Commencement: Various dates are set out in the table in section 2 of the Bill.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (the Bill) seeks to amend the Defence Force Discipline Act 1982[1] (the DFDA) and other legislation in the event the Parliament passes the Military Court of Australia Bill 2012[2] (the principal Bill) and the Military Court of Australia is established.

Structure of the Bill

The Bill consists of three covering clauses followed by five schedules:

  • Schedule 1 amends the DFDA
  • Schedule 2 amends the Defence Act 1903 and the Defence Force Retirement and Death Benefits Act 1973
  • Schedule 3 amends other pieces of legislation
  • Schedule 4 repeals the Defence Force Discipline Appeals Act 1955 and
  • Schedule 5 concerns application, saving and transitional provisions.

Background

This Bills Digest should be read in conjunction with the Digest which has been prepared to accompany the principal Bill.[3] It is not proposed to duplicate the details contained in that Digest here. Suffice it to say that the reform of the administration of military law has been topical in Australia over the last decade, in military circles, the legal profession and the Federal Parliament.

Australian military law applies to all members of the Australian Defence Force (ADF) and is concerned with criminal activities and disciplinary matters. The types of service offences for which a military person may face charges are set out in the DFDA.[4] Service offences include:

  • matters specific to military service (for example, being absent without leave)
  • matters having a civilian equivalent but taking place in a military environment (for example, the theft of defence property) and
  • offences against the law in force in the Jervis Bay Territory which serves as a device to apply the general criminal law.[5]

As well as providing for offences, Part III of the DFDA[6] also provides for the administration of military justice by various service tribunals, which can be either:

  • summary authorities[7]
  • courts martial[8] or
  • Defence Force magistrates.[9]

The DFDA also provides for the procedures of service tribunals[10] and the review of proceedings.[11]

This Bill (together with the principal Bill) will significantly alter the current system of service tribunals. Generally speaking, courts martial and Defence Force magistrates are to be replaced by the new Military Court of Australia (the Military Court). It is envisaged that the vast majority of less serious service offences will continue to be heard by summary authorities at the unit level.[12]

In exceptional situations where the Military Court determines that it is necessary, but not possible, to conduct a trial overseas itself, the present system of courts martial and Defence Force magistrates will be retained as a backup.[13]

The Defence Force Discipline Appeals Tribunal (DFDAT) will be abolished.[14] Currently, the DFDAT reviews decisions of courts martial and Defence Force magistrates, but not those of summary authorities.[15] To the extent that courts martial and Defence Force magistrates will exist in the future, the DFDAT’s present functions will be exercised by the Military Court.

The current internal review mechanisms for convictions and punishments imposed by service tribunals will be maintained. If and when an appeal is made to the Military Court from a decision of a court martial or Defence Force magistrate, internal review will be discontinued in the particular matter.[16]

There will continue to be no rights to appeal decisions of summary authorities, although all convictions are subject to various levels of review in accordance with Part VIIIA of the DFDA. The new military law scheme to be established by this Bill and principal Bill proposes that all ADF members charged with service offences may elect to be tried by the Military Court instead of by a summary authority.[17]

Committee consideration

Legal and Constitutional Affairs Legislation Committee

On 28 June 2012, this Bill (together with the principal Bill) was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the Legal and Constitutional Affairs Committee) for inquiry and report by 14 August 2012.[18] The deadline was later extended to 9 October 2012 when the report was delivered.[19]

The Government members of the Legal and Constitutional Affairs Committee (Senators Crossin (Chair), Furner and Pratt) recommended that the Explanatory Memoranda for both Bills be amended to incorporate the additional policy rationale received in evidence from the Attorney-General’s Department during the inquiry—particularly in relation to the absence of a right to a trial by jury. Subject to this taking place, the Government members of the Committee recommended both Bills be passed.[20] Government Senators Bishop and McEwen also participated. At the time of writing this Digest, no amended Explanatory Memoranda have been provided by the Department.

The Liberal Party members on the Legal and Constitutional Affairs Committee (Senators Humphries (Deputy Chair) and Boyce), together with other Liberal Party participants (Senators Brandis, Fawcett and Johnston), provided a dissenting report[21] recommending an amendment to provide a right to trial by jury for all service offences punishable by over 12 months imprisonment.[22] The Liberal Party Senators also recommended that there be an amendment to allow for reservists and standby reservists to be appointed as judicial officers of the Court, to the extent that Chapter III of the Constitution allows for this.[23] Unless amendments to the Bills are made to reflect these recommendations, the Liberal Party Senators recommended the Bills not be passed.[24]

Senator Wright of the Australian Greens stated she was broadly supportive of the Bills[25] but she did recommend an amendment to allow a right to trial by jury for the most serious offences, being those which could lead to a significant term of imprisonment.[26]

Foreign Affairs, Defence and Trade Legislation Committee

On 29 June 2012, both Bills were referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee, for inquiry and report. This report was delivered on 14 August 2012.[27]

In anticipation of referral of the Bills to two Committees, the Senate Foreign Affairs, Defence and Trade Legislation Committee met privately on 28 June 2012. It was keen to avoid duplicating the work of the Legal and Constitutional Affairs Committee and resolved instead to provide a background paper to that Committee based upon experience with previous legislation establishing the predecessor Court which was later ruled invalid by the High Court.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) published comments in relation to the Bill on 27 June 2012.[28] The comments are discussed under the ‘Key issues and provisions’ heading below.

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights has not published any comments on the Bill.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[29] The Government considers that the Bill is compatible.

The retention of courts martial and Defence Force magistrates to operate in exceptional circumstances means that persons accused will be tried before persons operating within the ADF chain of command. This can be seen as being less than ideal in terms of the right to a hearing by an independent and impartial tribunal which is stipulated in Article 14 of the International Covenant on Civil and Political Rights.[30] The Statement of Compatibility provides the following explanation:

… given the highly confined circumstance in which a court martial would operate, these limits are reasonable, necessary and proportionate. The Military Court will have jurisdiction to try serious service offences, and will be able to sit overseas. Courts martial or Defence Force magistrates will only be used where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas.[31]

One concern is that there appears to be no direct avenue for judicial review of decisions by summary authorities. There may be the potential for a decision of a summary authority to be flawed and/or a sentence imposed in excess of what is to be permitted under the new legislative scheme.[32] If this happened and the errors were confirmed or overlooked by a reviewing authority, it would be preferable for a person to have access to the Courts. This is the key rationale for administrative law.

However, it is noted that the current review mechanisms will be maintained, including an automatic review by a reviewing authority, a petition to a reviewing authority and a further review by the Chief of the Defence Force (CDF) or a Service Chief.[33]

Nevertheless, the High Court would appear to have original jurisdiction in such matters under section 75 of the Constitution.[34] Such matters could be remitted to the Federal Court for determination. It may assist ADF personnel if this Bill or the principal Bill explicitly dealt with rights to judicial review from summary authority decisions. This issue was not raised before the Legal and Constitutional Affairs Committee, nor was it referred to in their report.

Policy position of non-government parties/independents

As indicated in the report of the Legal and Constitutional Affairs Committee, the Liberal and Australian Greens parties broadly support this Bill, subject to the amendment proposals being adopted in relation to the principal Bill.

Position of major interest groups

Various interest groups provided submissions to the Legal and Constitutional Affairs Committee.[35] However, the contents of those submissions reflect support or otherwise for the principal Bill rather than commenting specifically on the contents of this Bill.

Financial implications

The Financial Impact Statement contained in the Explanatory Memorandum to the Bill states that ‘these amendments will require a reallocation of funding from within existing resources and are otherwise cost neutral’.[36]

Key issues and provisions

The Explanatory Memorandum provides a detailed explanation of each clause contained in the Bill. A discussion of the key issues and provisions in the Bill follows.

Schedule 1—amendment of the DFDA

The key provisions in the Bill are contained in Schedule 1 of the Bill.

Item 31 of Schedule 1 of the Bill inserts proposed section 3A into the DFDA to confirm that a service offence is an offence against the law of the Commonwealth, and that a service offence is not an indictable offence.[37]

Item 37 of Schedule 1 of the Bill amends subsection 63(1) of the DFDA so that proceedings must not be instituted in the Military Court or a service tribunal without the consent of the Director of Military Prosecutions for a range of matters specified as territory offences under section 61 of the DFDA.[38]

Items 39–56 of Schedule 1 make consequential amendments to Part IV of the DFDA (which relates to punishments and orders). Importantly, item 57 of Schedule 1 of the Bill repeals and replaces section 82 of the DFDA to make clear that a punishment of detention, whether imposed by the Military Court or a service tribunal, will be remitted if the person is subsequently sentenced to imprisonment. The Explanatory Memorandum provides the rationale for this provision stating that ‘this is because if a person is sentenced to imprisonment, they will also be dismissed from the ADF making it inappropriate and impracticable to continue to detain them in an ADF detention facility’.[39]

Items 58–66 in Part 1 of Schedule 1 of the Bill amend Part V of the DFDA, which relates to summons, arrest, custody and suspension from duty. In particular, item 59 repeals and replaces subsections 87(1) and 87(1A) of the DFDA. Under the proposed provisions, if the Director of Military Prosecutions (DMP) believes on reasonable grounds that a person has committed a service offence:

  • he or she may charge the person and
  • (if the person is charged) the DMP must ensure that a copy of the charge is given to the person and either:

–      the person is ordered to appear before a commanding officer or subordinate summary authority[40] to have the matter dealt with, unless the person elects to have the matter heard before the Military Court[41] or

–      the matter is referred to a superior summary authority[42] or commanding officer, or proceedings are commenced in the Military Court.[43]

Proposed subsection 87(1B) of the DFDA confirms that the DMP must not commence proceedings in the Military Court in relation to charges for custodial offences (being offences committed while in detention).[44]

Proposed subsection 87A of the DFDA requires the DMP to notify persons charged with service offences that they have the right to elect a trial in the Military Court.[45]

Pre-trial matters

Further provisions concerning the manner in which an accused person may elect a trial in the Military Court, and may subsequently withdraw from it, are contained in proposed sections 
102–102B.
[46] Proposed section 111B of the DFDA requires a summary authority who is dealing with a charge against an accused to refer the charge to the DMP if the accused elects to have the charge tried by the Military Court.

Proposed sections 103–103F[47] set out the powers of the DMP including, but not limited to the nature of the charges that may be referred to him or her[48] and the procedure to be followed once an accused person has elected to be tried by the Military Court.[49] Importantly, proposed paragraph 103(1)(l) of the DFDA provides that the DMP is authorised to make decisions about a charge which has been referred under proposed clause 34 of Schedule 3B of the DFDA (inserted by item 165 in Schedule 1 of the Bill) which deals with a person’s fitness to be tried. In that case, proposed subsection 103(3) of the DFDA prohibits the DMP from referring the charge back to a superior summary authority or a commanding officer.

Subclause 51(5) of the principal Bill provides that where the Military Court determines that it is necessary for it to sit outside Australia but that it is not possible to do so, the proceeding are taken to have been discontinued and the charges are taken to have been withdrawn. The proposed section 103C of the DFDA (inserted by item 73 of Schedule 1 of the Bill) permits the DMP in such circumstances to take any of the following actions:

  • direct the charges not be proceeded with
  • refer the charges to a superior summary authority or commanding officer
  • direct that a superior authority refer the charge to a Defence Force magistrate for trial or convene a court martial or
  • if circumstances have changed, recommence proceedings in the Military Court.

The DMP must not refer a charge to which subclause 51(5) of the principal Bill applies to a superior summary authority or a commanding officer in cases where the accused elected to have the matter heard before the Military Court.[50]

Proposed section 103F provides that if the Military Court operating in its appellate jurisdiction sets aside a conviction or a prescribed acquittal of a person by a court martial or a Defence Force magistrate, the DMP may direct either that the charge not be proceeded with or that new proceedings be commenced in the Military Court.[51] Such a decision is to be made within two months, otherwise the DMP is taken to have not proceeded with the charge.[52]

Procedure of service tribunals

If, in proceedings before a summary authority, it appears an accused person is unable to understand the proceedings or evidence is adduced that he, or she, had significant mental impairment at the relevant time, the charges must be referred to the DMP.[53]

A reviewing authority is able to quash a conviction if it is subsequently determined that an accused person was unfit to be tried or was mentally impaired at the time of the offence. Proposed paragraph 158A(4)(b) of the DFDA provides that if a reviewing authority acquits a person of a service offence on those grounds, it may make any order that it considers necessary having regard to the best interests of the acquitted person, and the safety of any other person to whom the order relates and the safety of the community generally. The Scrutiny of Bills Committee drew to the attention of Senators that this provision may amount to an undue trespass on the rights and liberties of the acquitted person given the comments in the Explanatory Memorandum that ‘such an order may restrict freedom of movement and may include requiring a person to undertake mental treatment’.[54]

Proposed subsections 158A(6)–(8) of the DFDA empower the DMP or the person to whom the order relates to apply for the order to be varied or set aside—and for a service chief or the Attorney‑General to do so.

Where a person has been acquitted in accordance with proposed section 158A, and the reviewing authority does not order a new trial of the person for the offence, the person is taken to have been acquitted of the offence.[55]

As soon as a service tribunal makes a final decision (whether it be a conviction or prescribed acquittal), a record of the proceedings must be sent to a competent reviewing authority.[56] The accused may also lodge a petition for review with the competent reviewing authority once the decision has been made by the service tribunal.[57]

Director of Military Prosecutions

Item 152 of Schedule 1 of the Bill inserts proposed section 188GAA into Part XIA of the DFDA which deals with the Director of Military Prosecutions. It provides that the DMP will be subject to such directions and guidelines which the Minister issues in writing. The Explanatory Memorandum provides the rationale for this section as follows:

This item is modelled on section 8 of the Director of Public Prosecutions Act 1983 … As in the civilian criminal justice context, it is expected that the power under new section 188GAA will be used sparingly and in exceptional circumstances. The new section is intended to provide the Government with a means by which it can make its prosecutions and criminal law policies known to the DMP in a transparent manner. To avoid compromising the statutory independence of the DMP, these guidelines must be general in nature and may not relate to how a specific case is to be conducted.[58]

Miscellaneous matters

Proposed section 190A of the DFDA addresses the possibility of double jeopardy, which was a key concern of the Legal and Constitutional Affairs Committee.[59] If a person is convicted or acquitted of a service offence, he or she is not liable to be tried under military law again for that offence or for one substantially similar to it.[60] Conviction or acquittal by a civil court for a civilian law offence or by an overseas court for an overseas offence means a person is not liable to be charged with a service offence that is substantially similar.[61]

The remaining provisions of Part 1 of Schedule 1 of the Bill deal with the Schedules to the DFDA. The existing Schedules 1 and 1A are repealed.[62] A new Schedule 3 replaces the current version. It sets out in table form those punishments which may be imposed by a summary authority.[63]

Proposed Schedule 3B contains detailed provisions concerning courts martial and Defence Force magistrates.[64] A court martial can either be a general court martial (President plus at least four other members) or a restricted court martial (President plus at least two members).[65] Qualifications for members are provided for[66], as are procedures for trial by court martial.[67] Provision is also made for the appointment of Defence Force magistrates[68] and trials to be conducted by them.[69]

Proceedings before a court martial and a Defence Force magistrate are to be in public unless it is decided otherwise.[70] According to the Explanatory Memorandum, the term public is to be ‘read widely to include not only other ADF members, but also non-ADF members … consistent with clause 56’ of the principal Bill.[71]

Proposed subclause 33(2) of Schedule 3B empowers the President of a court martial or a Defence Force magistrate to order that some or all of the members of the public be excluded from proceedings. It also provides such persons with the power to limit or prohibit publication of details about the proceedings in appropriate cases.

The rules of evidence applicable before the Military Court will also apply to proceedings before a court martial or a Defence Force magistrate.[72] There is a right of appeal to the Military Court with leave, available to the DMP as well as the accused, whether convicted or not.[73] A court martial or a Defence Force magistrate may also refer a question of law to the Military Court during a trial.[74]

Existing Schedule 4 is retitled[75] and proposed Schedule 7 is inserted.[76] Proposed Schedule 7 lists ‘certain disciplinary offences’, convictions of which have effect for service purposes only and are not required to be disclosed externally.[77]

Amendment of offences

The provisions in Part 2 of Schedule 1 of the Bill amend certain offences in the DFDA. These amendments commence 28 days after Royal Assent. Many of these amendments omit existing penalties which are expressed in dollar amounts and replace them with ‘penalty units[78]’—consistent with common drafting practice. This allows penalty levels to conveniently keep pace with inflation.

Item 170 repeals and replaces section 62 of the DFDA which deals with commanding or ordering a service offence to be committed. The new definition is more detailed. It clarifies that the defence member will not be guilty unless he, or she, intended that the relevant service offence be committed[79] subject to any applicable special liability provisions (within the meaning of the Criminal Code). It will be an offence even if the act ordered to be committed was impossible.[80] Interestingly, proposed subsection 62(7) of the DFDA provides that it is not an offence to command or order a person to commit offences against provisions in the Criminal Code concerning attempt, incitement and conspiracy. This is not in the current section 62 and the reasons for this are not set out in the Explanatory Memorandum.

Part 3 of Schedule 1 of the Bill amends the DFDA by replacing a reference to the Evidence and Procedure (New Zealand) Act 1994 with its successor legislation—the Trans-Tasman Proceedings Act 2010.[81]

Schedule 2—amendments to other Defence legislation

Items 1–16 of Schedule 2 of the Bill amend the Defence Act 1903 (the Defence Act).[82] There are a number of consequential amendments to section 4 which contains various definitions used in the Defence Act, including a definition of the term legal officer which is to be an officer who is a legal practitioner.[83]

In addition, item 14 of Schedule 2 to the Bill inserts new Part VIIID (proposed sections 110ZA and 110ZB) which establishes the position of the Director of Defence Counsel Services. The Chief of the Defence Force must not appoint a person who is not a legal officer to the position of Director of Defence Counsel Services.[84]

The functions and powers of the Director of Defence Counsel Services are set out in proposed section 110ZB of the Defence Act including, amongst other things, 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
  • arrange for the attendance of witnesses on behalf of an accused person
  • 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 and
  • give written directions, or provide guidelines, of a general nature to legal officers in relation to the provision of representation and legal advice.

Importantly, the Director of Defence Counsel Services is not subject to military command, or to the DFDA, in the performance of his or her functions, or the exercise of his or her powers.

Proposed section 123E of the Defence Act prohibits any Judge of the Military Court or Federal Magistrate of the Military Court from joining the ADF. This is consistent with subclause 11(4) of the principal Bill. According to the Explanatory Memorandum, ‘this is to ensure the Military Court is independent of military command, to ensure fairness and impartiality to ADF members in trials for service offences’.[85]

Schedule 2 of the Bill also contains a minor amendment to paragraph 6(5)(a) of the Defence Force Retirement and Death Benefits Act 1973[86], which continues to provide that time in custody is ‘non‑effective service’, but not restrict that to time in custody under the DFDA only.[87] This provision will therefore apply to persons in custody pursuant to the Military Court of Australia Act.

Schedule 3—amendments to other Acts

The amendments in Part 1 of Schedule 3 of the Bill are minor in nature and for the most part consist of inserting references to the Military Court and the Military Court of Australia Act in other pieces of legislation.

It is anticipated that the Military Court will be administered through the Federal Court of Australia.[88] The Federal Court of Australia Act 1976[89] is amended so that a member of the ADF cannot be appointed and/or hold office as a Registrar of the Federal Court.[90] The rationale for this amendment is set out in the Explanatory Memorandum as follows:

As the Registrar of the Federal Court may exercise certain adjudicative powers under the Military Court of Australia Bill 2012, it would not be appropriate for a member of the ADF to hold the position of Registrar. This amendment ensures that the Registrar will not be subject to the military chain of command in exercising his or her functions. This is consistent with the independence of other office holders under the Military Court of Australia Bill 2012.[91]

Part 2 of Schedule 3 of the Bill makes a number of amendments to the Military Court of Australia Act.[92] Proposed section 48A of the Military Court of Australia Act affords broad protection and immunity to a complaint handler[93], a witness and a legal practitioner. The level of protection afforded under this section is the same as for a Justice of the High Court.

Item 75 of Part 2 of Schedule 3 of the Bill inserts new Part 11A of the Military Court of Australia Act (proposed sections 180A-180M) in relation to suppression and non-publication orders. The Military Court may make such orders in suitable matters[94] and it will be an offence for a person to contravene such orders.[95] The penalty for the offence is imprisonment for 12 months, 60 penalty units or both. In addition, any act or omission that constitutes an offence under proposed section 180M of the Military Court of Australia Act may be punished as a contempt of court even though it could be punished as an offence. Proposed subsection 180M(4) makes clear that where an act or omission constitutes both an offence and a contempt of court, the offender is not liable to be punished twice.

Schedule 4—repeal of the Defence Force Discipline Appeals Act

The Defence Force Discipline Appeals Act 1955 (Defence Force Discipline Appeals Act) establishes the Defence Force Discipline Appeals Tribunal, a body which hears and determines appeals from decisions made by courts martial and Defence Force magistrates.[96] While courts martial and Defence Force magistrates are to be retained for use in exceptional situations, the Defence Force Discipline Appeals Tribunal is not. Subject to savings and transitional provisions discussed below, the Defence Force Discipline Appeals Act is to be repealed in its entirety. The Military Court will have jurisdiction to hear and determine appeals from certain determinations of courts martial and Defence Force magistrates made under Schedule 3B of the DFDA.[97]

Schedule 5—application, savings and transitional provisions

Proceedings under the current legislative scheme which have not been concluded when this Bill and the principal Bill are enacted will continue to be dealt with under the old DFDA—that is the DFDA (including the regulations, rules of procedure and other instruments under that Act) as in force immediately before the Military Court proceedings start day.[98]

Where a new trial is ordered under the current legislative scheme but there has been no referral to a Defence Force magistrate or convening of a court martial as at the date of transition to the new scheme, the new provisions will apply.[99]

The person holding the office of Chief Judge Advocate (which is to be abolished) continues to hold such office until existing service tribunal proceeding are completed.[100] The Registrar of Military Justice continues to hold office in a similar manner.[101] The Defence Force Discipline Appeals Tribunal will continue to exist up until the ‘appeal proceedings completion day’[102], which is a date to be declared by the Attorney-General.[103]

Fines recoverable under provisions to be abolished will remain recoverable.[104]

Concluding comments

This Bill is ancillary to the principal Bill. If that Bill is passed by the Parliament, even if in amended form, then logically this Bill should be passed too. One cannot come into force without the other. Some minor issues identified in this Bills Digest are:

  • there is no express provision made in either this Bill or the principal Bill for judicial review of decisions made by summary authorities[105] and
  • proposed subsection 62(7) of the DFDA provides that it is not an offence to command or order a person to commit offences against provisions in the Criminal Code concerning attempt, incitement and conspiracy—it is unclear why.[106]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.



[1].     The text of the Defence Force Discipline Act 1982 can be viewed at: http://www.comlaw.gov.au/Details/C2012C00181/Download

[2].     Details of the Military Court of Australia Bill 2012 are on the Bill’s homepage: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4853%22

[3].     I McCluskey and P Pyburne, Military Court of Australia Bill 2012, Bills Digest, no. 71, 2012–13, Parliamentary Library, Canberra, 2013, viewed 21 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F2215467%22

[4].     The term service offence is defined in section 3 of the DFDA.

[5]      Section 61 of the DFDA.

[6].     Sections 15–65 of the DFDA.

[7].     Sections 104–113 of the DFDA.

[8].     Sections 114–126 of the DFDA.

[9].     Sections 127–129A of the DFDA.

[10].   Part VII (sections 129D–149A) of the DFDA.

[11].   Part VIIIA (sections 150–169) of the DFDA.

[12].   The term summary authority is defined in the section 3 of the DFDA as a superior summary authority, a commanding officer or a subordinate summary. A superior summary authority is appointed under subsection 105(1), and his or her jurisdiction is specified in section 106 of that Act. A subordinate summary authority is appointed under subsection 105(2) and his or her jurisdiction is specified in section 108 of that Act. A commanding officer’s jurisdiction is specified in section 107 of the DFDA.

[13].   Explanatory Memorandum, Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012, p. 2, viewed 26 March 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4854_ems_476171d5-b686-4ea9-b660-d3679f5eb89c%22

[14].   Schedule 4 of the Bill.

[15].   Section 20 of the Defence Force Discipline Appeals Act 1955 provides that appeals are available to convicted persons and prescribed acquitted persons. Section 6 of the same Act provides that prescribed acquitted persons are persons acquitted by courts martial or Defence Force magistrates due to unsoundness of mind. The same section provides that convicted persons are those convicted by a court martial or a Defence Force magistrate. Convictions by summary authorities are thus excluded from the Defence Force Disciplinary Appeals Tribunal. The text of the Defence Force Discipline Appeals Act 1955 can be viewed at: http://www.comlaw.gov.au/Details/C2011C00593/Download

[16].   Explanatory Memorandum, op. cit., p. 3.

[17].   Proposed section 87A of the DFDA, inserted by item 61 of Schedule 1 of the Bill.

[18].   Details of the terms of reference for the inquiry, submissions received and the Committee’s report can be viewed at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/index.htm

[19].   Senate Legal and Constitutional Affairs Legislation Committee, Military Court of Australia Bill 2012 [Provisions]; Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], Senate, Canberra, 9 October 2012, accessed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/report/index.htm

[20].   Ibid., p. 51.

[21].   Ibid., pp. 53–57.

[22].   Ibid., p. 57.

[23].   Ibid.

[24].   Ibid.

[25].   Ibid., p. 59.

[26].   Ibid., p. 60.

[27].   A brief report by the Foreign Affairs, Defence and Trade Committee can be viewed at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=fadt_ctte/completed_inquiries/index.htm

[28].   Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 7 of 2012, Senate, Canberra, 27 June 2012, pp. 11–13, accessed 21 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/alerts/2012/index.htm

[29].   The Statement of Compatibility with Human Rights can be found at pages 6–13 of the Explanatory Memorandum to the Bill.

[31].   Explanatory Memorandum, op. cit., paragraph 30 at p. 7.

[32].   The proposed Schedule 3 of the DFDA is contained in item 164 of Schedule 1 of the Bill and provides for maximum sentences.

[33].   Explanatory Memorandum, op. cit., paragraph 6 at p. 3.

[34].   Section 75 of the Constitution provides:

75 Original jurisdiction of High Court

In all matters:

(i)     arising under any treaty;

(ii)    affecting consuls or other representatives of other countries;

(iii)   in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv)   between States, or between residents of different States, or between a State and a resident of another State;

(v)    in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

[35].   The submissions to the Senate Legal and Constitutional Affairs Legislation Committee can be viewed at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm

[36].   Explanatory Memorandum, op. cit., paragraph 19 at p. 5.

[37].   If the Parliament amends the principal Bill to allow for trial by jury, then proposed subclause 3A(2) may also require amendment.

[38].   Territory offences are defined in section 3 of the DFDA as (a) an offence against a law of the Commonwealth in force in the Jervis Bay Territory other than this Act or the regulations, or (b) an offence punishable under any other law in force in the Jervis Bay Territory (including any unwritten law) creating offences or imposing criminal liability for offences.

[39].   Explanatory Memorandum, op. cit., p. 25. Clause 141 of the principal Bill requires the Military Court to impose the punishment of dismissal from the ADF in those cases where the Court also imposes a punishment of imprisonment (that is, in a civilian prison) or detention (that is, in a military detention facility) of a person.

[40].   Commanding officers may appoint officers to be subordinate summary authorities, who shall be able to handle certain minor matters. Subsection 105(2) and section 108 of the DFDA refer.

[41].   Proposed subsection 87(1) of the DFDA inserted by item 59 in Schedule 1 of the Bill.

[42].   See footnote no. 12.

[43].   Proposed subsection 87(1A) of the DFDA inserted by item 59 in Schedule 1 of the Bill.

[44].   Inserted by item 59 in Schedule 1 of the Bill. This is consistent with subclause 63(2) of the Military Court of Australia Bill 2012.

[45].   Inserted by item 61 of Schedule 1 of the Bill.

[46].   Inserted by item 73 of Schedule 1 of the Bill.

[47].   Inserted by item 73 of Schedule 1 of the Bill.

[48].   Proposed section 103 inserted by item 73 of Schedule 1 of the Bill.

[49].   Proposed section 103A inserted by item 73 of Schedule 1 of the Bill.

[50].   Proposed subsection 103C(3) of the DFDA.

[51].   Proposed subsection 103F(2) inserted by item 73 of Schedule 1 of the Bill.

[52].   Proposed subsection 103F(3) inserted by item 73 of Schedule 1 of the Bill.

[53].   Proposed sections 145–146 inserted by item 100 of Schedule 1 to the Bill.

[54].   Standing Committee for the Scrutiny of Bills, Alert Digest No. 7 of 2012, op. cit., p. 11.

[55].   Proposed sections 158A and 159 inserted by items 120 and 121 of Schedule 1 of the Bill respectively.

[56].   Proposed subsection 152(1) inserted by item 106 of Schedule 1 of the Bill.

[57].   Proposed subsection 153(1) inserted by item 108 of Schedule 1 of the Bill.

[58].   Explanatory Memorandum, op. cit., paragraphs 326–327, p. 52.

[59].   Senate Standing Legal and Constitutional Affairs Legislation Committee, op. cit., pp. 26–27.

[60].   Proposed subsection 190A(1) of the DFDA inserted by item 157 of Schedule 1 of the Bill.

[61].   Proposed subsection 190A(3) inserted by item 157 of Schedule 1 of the Bill. The Bills Digest for the principal Bill suggests that a provision in equivalent terms to the former subsection 190(5) of the DFDA be inserted into the military law legislation—either as an amendment to the principal Bill or the Defence Force Discipline Act 1982. I McCluskey and P Pyburne, Military Court of Australia Bill 2012, op. cit.

[62].   Item 163 of Schedule 1 of the Bill.

[63].   Item 164 of Schedule 1 of the Bill.

[64].   The current provisions in the DFDA concerning courts martial and Defence Force magistrates are being moved from the main body of DFDA to a Schedule in recognition of the intent that such bodies will only operate in exceptional circumstances and that the DFDA will almost always be administered by summary authorities and the new Military Court.

[65].   Proposed clause 2 of Schedule 3B, inserted by item 165 of Schedule 1 of the Bill.

[66].   Proposed clause 5 of Schedule 3B of the DFDA.

[67].   Proposed clauses 12–19 of Schedule 3B of the DFDA.

[68].   Proposed clauses 21–25 of Schedule 3B of the DFDA.

[69].   Proposed clauses 26–30 of Schedule 3B of the DFDA.

[70].   Proposed clause 33 of Schedule 3B of the DFDA.

[71].   Explanatory Memorandum, op. cit., paragraph 486, p. 72.

[72].   Proposed clause 37 of Schedule 3B of the DFDA.

[73].   Proposed clauses 48–50 of Schedule 3B of the DFDA.

[74].   Proposed clause 67 of Schedule 3B of the DFDA.

[75].   It becomes ‘Oath or affirmation for holders of certain offices’, see item 166 in Schedule 1 of the Bill.

[76].   Item 167 in Schedule 1 of the Bill.

[77].   Proposed subsections 190C(2) and (3), which are inserted by item 157 in Schedule 1 of the Bill.

[78].   Items 168-169, 171 and 176-181 in Schedule 1 of the Bill. Under section 4AA of the Crimes Act 1914, a penalty unit is equivalent to $170. The text of the Crimes Act 1914 can be viewed at: http://www.comlaw.gov.au/Details/C2013C00031/Download

[79].   Proposed subsection 62(2) of the DFDA, inserted by item 170 in Schedule 1 of the Bill.

[80].   Proposed subsection 62(4) of the DFDA, inserted by item 170 in Schedule 1 of the Bill.

[81].   Item 182 in Schedule 1 of the Bill.

[82].   The text of the Defence Act 1903 can be viewed at: http://www.comlaw.gov.au/Details/C2013C00078/Download

[83].   Section 3 of the DFDA. Item 15 in Schedule 2 of the Bill repeals the existing definition of legal officer in subsection 122B(2) of the Defence Act.

[84].   Proposed section 110ZA of the Defence Act.

[85].   Explanatory Memorandum, op. cit., paragraph 640, p. 94.

[86].   The text of the Defence Force Retirement and Death Benefits Act 1973 can be viewed at: http://www.comlaw.gov.au/Details/C2012C00559/Download

[87].   Item 17 of Schedule 2 of the Bill.

[88].   N Roxon (Attorney-General), ‘Second reading speech: Military Court of Australia Bill 2012’, House of Representatives, Debates, 21 June 2012, p. 7413, accessed 22 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fc3691419-911e-4e11-b6bf-09c7da360bc2%2F0009%22

[89].   The text of the Federal Court of Australia Act 1976 can be viewed at: http://www.comlaw.gov.au/Details/C2013C00052/Download

[90].   Item 19 in Schedule 3 of the Bill.

[91].   Explanatory Memorandum, op. cit., paragraph 670, p. 100.

[92].   Items 38–40, 54–63 and 65–75 in Schedule 3 of the Bill.

[93].   Item 55 of Part 2 of Schedule 3 of the Bill inserts the definition of complaint handler into the Military Court of Australia Act. The term means either the Chief Justice of the Military Court or a person authorised by the Chief Justice to assist him or her, or to assess complaints.

[94].   Proposed sections 180F and 180G inserted by item 75 in Schedule 3 of the Bill.

[95].   Proposed section 180M inserted by item 75 in Schedule 3 of the Bill.

[96].   The text of the Defence Force Discipline Appeals Act 1955 can be viewed at: http://www.comlaw.gov.au/Details/C2011C00593/Download

[97].   Clause 63 of the Military Court of Australia Bill 2012.

[98].   Items 1 and 3 in Schedule 5 of the Bill.

[99].   Items 9 and 10 in Schedule 5 of the Bill.

[100]. Item 12 in Schedule 5 of the Bill.

[101]. Item 15 in Schedule 5 of the Bill.

[102]. Item 17 in Schedule 5 of the Bill.

[103]. Sub-item 17(3) in Schedule 5 of the Bill.

[104]. Item 21 in Schedule 5 of the Bill.

[105]. See pp. 7–8 above.

[106]. See p. 14 above.

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