Bills Digest No. 71, 2012–13

8 February 2013

Military Court of Australia Bill 2012

Ian McCluskey and Paula Pyburne
Law and Bills Digest Section 

The Bills Digest at a glance

The Bill establishes the Military Court of Australia under Chapter III of the Constitution.

The Senate Legal and Constitutional Affairs Legislation Committee has recently reported on the Bill.

The Government members of the Legal and Constitutional Affairs Legislation Committee recommended the Bill be passed, subject to an update of the Explanatory Memorandum. Action to update the Explanatory Memoranda had not, at the time of writing this Bills Digest, been undertaken.

The Liberal members of the Legal and Constitutional Affairs Legislation Committee proposed two amendments, without which they would oppose the Bill:

·         an amendment to provide a right to trial by jury for all service offences punishable by over 12 months imprisonment and

·         an amendment to allow for reservists and standby reservists to be appointed as judicial officers of the Military Court, to the extent this is allowed under Chapter III of the Constitution.

The Australian Greens Senator on the Legal and Constitutional Affairs Legislation Committee proposed 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.

Date introduced: 21 June 2012

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1 and 2 on Royal Assent; sections 3–182 and Schedule 1 on the earlier of Proclamation[1] or six months after the Military Court of Australia (Transitional Provisions and Consequential Amendments) Act 2012 receives Royal Assent.[2]

This Bill itself is to be amended by the Military Court of Australia (Transitional Provisions and Consequential Amendments) Act 2012, the relevant provisions of which will commence immediately after the commencement of clause 3 of this 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 purpose of the Military Court of Australia Bill 2012 (the Bill) is to establish the Military Court of Australia under Chapter III of the Constitution.[3]

Amendments which are consequential upon the enactment of this Bill are contained in the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (the Transitional Bill). This latter Bill contains a number of amendments to the current Bill under consideration, in particular the insertion of Part 11A, which deals with suppression and
non-publication orders.

Structure of the Bill

Once amended by the Transitional Bill, the resulting Act will be divided into thirteen Parts, along with a single Schedule:

·         Part 1 contains a definition section and addresses other preliminary matters

·         Part 2 establishes the Military Court of Australia under Chapter III of the Constitution, and provides for the appointment of a Chief Justice, as well as Judges and Federal Magistrates to the Court

·         Part 3 provides for the management of the Court, including the establishment of registries

·         Part 4 sets out provisions concerning the Court’s jurisdiction in general

·         Part 5 provides for the Court’s original jurisdiction

·         Part 6 provides for the Court’s appellate and superior jurisdiction

·         Part 7 concerns appeals to the High Court

·         Part 8 sets out custody and bail provisions

·         Part 9 deals with sentences and orders

·         Part 10 covers persons found unfit to be tried and persons acquitted because of mental impairment

·         Part 11 provides for the Court’s practice and procedure

·         Part 11A (to be inserted by the Transitional Bill) deals with suppression and non-publication orders

·         Part 12 deals with miscellaneous matters and

·         Schedule 1 of the Bill lists 22 serious service offences which are to be dealt with by Federal Court judges sitting in the Appellate and Superior Division of the Court, rather than by Federal Magistrates sitting in the Court’s General Division.

Background

Inquiry into the effectiveness of Australia’s military justice system

In March 2003, the Senate referred the issue of military justice to the Foreign Affairs, Defence and Trade References Committee (the 2003 Committee) to inquire and report on the effectiveness of the military justice system in a number of areas—including whether the system provided impartial, rigorous and fair outcomes for ADF members.[4]

Having heard evidence from former and serving members of the ADF, including senior officers, family members, and other interested parties, the report on military justice declared: ‘The committee believes that the military justice system in its current form clearly needs a comprehensive, ground up reform.’[5] The 2003 Committee concluded that ‘wholesale review and reform of the principles underpinning the current system of military justice is now required’.[6] To that end, the 2003 Committee made 40 recommendations—including, and relevant to this Bills Digest, that:

·         the Government amend the Defence Force Discipline Act 1982 (DFDA)[7] to create a Permanent Military Court capable of trying offences under the DFDA currently tried at the court martial or Defence Force Magistrate level[8]

·         the Permanent Military Court to be created in accordance with Chapter III of the Constitution to ensure its independence and impartiality[9]

·         judges appointed to the Permanent Military Court should be required to have a minimum of five years recent experience in civilian courts at the time of appointment[10]

·         the bench of the Permanent Military Court to include judges whose experience combines both civilian legal and military practice[11]

·         the right to elect trial by court martial before the Permanent Military Court for summary offences[12] and

·         the right of appeal from summary authorities to the Permanent Military Court.[13]

Whilst the Government did agree with 30 of the 40 recommendations in part, or in principle, it did not agree with the recommendation that a Permanent Military Court should be created in accordance with Chapter III of the Constitution.[14]

Steps towards improvement

The DFDA was amended by the Defence Legislation Amendment Act 2006[15] to establish the Australian Military Court to replace the system of trials by courts martial and Defence Force Magistrates.[16] The new Court was established under section 51(vi) of the Constitution (‘the defence power’) rather than under Chapter III of the Constitution, which concerns the Judicature. The basis for that decision was a line of High Court decisions which held that courts martial do exercise judicial power—but not ‘the judicial power of the Commonwealth’.[17]

The Australian Military Court had the following features:

·         it comprised a Chief Military Judge, two permanent Military Judges and a part-time reserve panel of judges. There was provision for statutory appointment of judges by the Defence Minister

·         judges were appointed for five year terms, with the possibility of renewal

·         remuneration was to be set by the Remuneration Tribunal and

·         the Court was a court of record.

At the time that the relevant amendments were made, it was suggested that:

… the government settled for the barest minimum reforms required to its service tribunals to escape a constitutional challenge [and that] in striving for the minimum, the government has not removed the risk that at some stage the High Court may find that the AMC is constitutionally invalid.[18]

Further amendments were contained in the Defence Legislation Amendment Act 2008[19] including an automatic right of appeal from a summary authority to a single Military Judge plus the right of defence members to elect trial by a Military Judge for most disciplinary offences.

Constitutional challenge

It was established in the Boilermakers’ Case[20] that the ‘judicial power of the Commonwealth’ may only be exercised by a court created in accordance with Chapter III of the Constitution. In the matter of Lane v Morrison[21], the High Court unanimously held that the legislation establishing the Australian Military Court was constitutionally invalid. The High Court noted that the Australian Military Court was independent of the chain of command, it was established as a court of record, and it had contempt powers. In addition, the High Court considered that the Australian Military Court was exercising the ‘judicial power of the Commonwealth’ which, as stated above, can only be exercised by a Chapter III Court. However, in the case of the Australian Military Court, the High Court concluded that the manner of appointment and tenure of the Judges of the Australian Military Court did not satisfy the requirements of Chapter III of the Constitution.

Remedial legislation was quickly enacted to restore the service tribunal system (that is, courts martial and Defence Force Magistrates) which existed prior to the 2006 amendments.[22] This legislation remains in place.

The Military Court of Australia Bill 2010 was introduced into the House of Representatives on
24 June 2010.[23] The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for enquiry and report by 21 September 2010.[24] However, the Bill lapsed on 19 July 2010 when the Parliament was prorogued. That Bill was broadly similar to the current Bill.

Australia’s military justice system

Australian military law applies to all members of the Australian Defence Force (ADF).

At present, the military justice system is regulated by the DFDA and has two main elements—a discipline system and an administrative system. Relevant to this Bill are three types of service offences[25]:

·         military discipline offences for which there are no civilian counterparts such as absence without leave[26], insubordinate conduct[27] and disobeying a lawful command[28]

·         offences with a close civilian criminal law counterpart such as assault on a superior officer[29] or on a subordinate[30] and

·         civilian criminal offences imported from the law applicable in the Jervis Bay territory.[31]

The DFDA provides for a wide range of punishments including custodial sentences[32], dismissal[33], reprimand[34] and reduction in rank.[35] According to section 9 of the DFDA, those same offences apply to a ‘defence civilian’ outside Australia.[36]

As well as setting out service offences, the DFDA provides for the administration of military justice by various ‘service tribunals’; these being summary authorities[37], courts martial[38] and Defence Force Magistrates.[39] The DFDA also provides for the procedures of service tribunals[40] and the review of proceedings.[41]

The Transitional Bill, if enacted, will significantly alter the current system of service tribunals in the event that this Bill is passed. Put simply, it is anticipated that summary authorities will continue to handle the majority of less serious offences. While it is anticipated that the remaining (and generally more serious) offences would be handled by the new Military Court of Australia, the system of courts martial and Defence Force Magistrates will be retained for exceptional cases where the Military Court is unable to conduct a trial overseas.[42]

Effect of this Bill

This Bill establishes the Military Court of Australia in accordance with Chapter III of the Constitution. In particular, the judicial appointment, tenure and remuneration requirements in section 72 of the Constitution have been complied with. It was the failure to satisfy these requirements which led the High Court’s decision in Lane v Morrison. The High Court’s concerns appear to have been addressed.

The Bill provides that judicial officers cannot be appointed if they currently serve in the ADF. However, the Bill requires that all appointees will, by reason of experience and training, have a detailed understanding of the ADF service environment. Matters are to be tried other than on indictment.[43] The effect of this provision is that there is no right to a trial by jury, even for the most serious of offences. This appears to be the most controversial aspect of the Bill and is discussed in detail below.

It is envisaged that the vast majority of less serious service offences will continue to be heard by summary authorities at the unit level. The Military Court’s General Division (comprising judicial officers at the Federal Magistrate level) will try certain less serious service offences at the request of an accused and/or upon referral by the Director of Military Prosecutions. The Military Court’s Appellate and Superior Division (to be comprised of persons at the Federal Court judge level) will try the serious service offences set out in Schedule 1 to the Bill. This Division will also hear appeals from first instance decisions, in which case it will sit as a Full Court, generally meaning there will be three judges.[44]

Committee consideration

Legal and Constitutional Affairs Legislation Committee

On 28 June 2012, the Bill (together with the Transitional 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.[45] This deadline was later extended until 9 October 2012, when the report was delivered.[46]

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 a jury. Subject to this taking place, the Senators recommended both Bills be passed.[47] Australian Labor Party (ALP) Senators Bishop and McEwen also participated. At the time of writing this Bills Digest, no amended Explanatory Memoranda have been provided by the Department.

The Liberal members on the Legal and Constitutional Affairs Committee (Senators Humphries (Deputy Chair) and Boyce), together with other participants (Senators Brandis, Fawcett and Johnston), provided a dissenting report[48] recommending an amendment to provide a right to trial by jury for all service offences punishable by over 12 months imprisonment.[49] The 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.[50] This would enable, for example, judicial appointees recruited from the ADF to continue their military service and connection as reservists. Unless amendments to the Bills are made to reflect these recommendations, Senators Humphries and Boyce recommend the Bills not be passed.[51]

Senator Wright of the Australian Greens stated she was broadly supportive of the Bills[52] but she recommended an amendment to allow a right to trial by jury for the most serious offences, being those which could lead to a significant terms of imprisonment.[53]

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.[54] This report was delivered on 14 August 2012.

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

Policy position of non-government parties

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

Position of major interest groups

Various interest groups provided submissions to the Legal and Constitutional Affairs Committee.[55] Some groups were supportive of the amendments contained in the Bill.[56]

However, others were strongly against the Bill. According to the Australian Defence Association, for example:

… the concept underlying the Bill remains a fundamentally flawed answer to a problem that does not exist anyway, and one that ignores that a perfectly acceptable, time-tested and proven alternative already exists.[57]

These sentiments were echoed by the Returned Services League of Australia who contended that ‘the reasons for introducing the MCA Bill 2012 into Parliament in its current form which are not compelling and do not justify the denial of constitutionally based rights and protections to members of the ADF’.[58]

More detailed comments of major interest groups are canvassed under the heading ‘Provisions and key issues’ in this Bills Digest.

Financial implications

The Explanatory Memorandum states that there will be:

… no net impact on underlying cash. It will require a transfer of funding from the Department of Defence to the Attorney-General’s Department portfolio with additional funding in the start up year to cover the costs of implementation. [59]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, 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.[60] The Government considers that the Bill is compatible.

The enhanced tenure of judges appointed in accordance with Chapter III of the Constitution would increase both the actual and apparent independence of the persons deciding the guilt or otherwise of an accused. This in turn would promote the right to a fair trial contained in Article 14 of the International Covenant on Civil and Political Rights (the ICCPR), which requires tribunals in criminal matters to be independent and impartial.

While many might prefer that there be a right to trial by jury provided for in the Bill for serious offences, it should be noted that the ICCPR does not itself confer any right to a jury trial.

Provisions and key issues

An outline of the structure of the Bill is set out above. A discussion of the most significant issues and provisions follows.

Establishment of the Military Court

Provisions

The Military Court is created as a federal court by clause 9 of the Bill. It will consist of a Chief Justice and other Judges or Federal Magistrates.[61] It consists of two divisions—the Appellate and Superior Division and the General Division.[62]

Clause 11 provides for appointment of Judges and Federal Magistrates. A person is not to be appointed to the Military Court unless he or she is already a Judge or Federal Magistrate, or he or she has been enrolled as a legal practitioner in Australia for five years. It is required that by reason of experience or training, the person understands the nature of service in the ADF.[63] The Defence Minister must also be consulted about proposed appointments.[64] Current members of the ADF are ineligible for appointment.[65]

Key issue

The term by reason of experience or training is not defined in the Bill. The Australian Defence Association expressed its concern that ‘there is no standard or criterion as to what this experience or training is to consist of, or how the training or experience is to be attained, measured or indeed how long its duration needs to be’.[66] The Explanatory Memorandum does not shed much light on the meaning of the term except to say that:

While the criteria around experience and training could be met by demonstrating prior service in the ADF or the Reserve, it is not intended that this be the only way in which an applicant may gain the relevant experience or training which would make them suitable for appointment to the court.[67]

Given the limitations on who may be appointed to the Military Court, there was concern as to whether there would be a pool of suitable candidates. For example, there was uncertainty about ‘the number of people who have enough legal experience and qualifications to be a judge’ and also have the requisite service experience.[68]

However, clause 12 provides that Judges or Federal Magistrates of the Military Court may hold dual commissions as judges in other federal courts or as Federal Magistrates in the Federal Magistrates Court, respectively. According to the Attorney-General’s Department’s evidence to the Legal and Constitutional Affairs Committee, the Government may offer dual commissions to existing Federal Court judges and Federal Magistrates who have experience and knowledge of the nature of service in the ADF.[69]

Subclauses 11(1), (5) and (6) which deal with the appointment of Judges and Federal Magistrates to the Military Court, clause 15 which relates to resignation from office and clause 16 of the Bill, which deals with the removal from office of a Judge or Magistrate of the Military Court are consistent the terms of section 72 of the Constitution which sets out the terms of Judges’ appointment, tenure and remuneration.

Extraterritorial operation of the Act

Provisions

Clause 5 of the Bill provides that the Act applies both within and outside Australia. This means that the Act will apply to members of the ADF and defence civilians who are deployed overseas. Consistent with this provision, clause 51 authorises the Military Court of Australia to sit at a place in Australia to hear and determine a proceeding unless it determines that it is necessary[70] and possible[71] for it to sit at a place outside Australia. Under subclause 51(5), if the Military Court determines that it is necessary for it to sit at a place outside Australia to hear and determine a proceeding, but that it is not possible to do so, then the proceeding is deemed to be discontinued and all charges are deemed to have been withdrawn.

In relation to the mobility, or otherwise, of the proposed Military Court, Duxbury, Liivoja and Groves had this to say:

Even though courts martial, as currently provided for in Australian law, can sit overseas, they seldom do so. There are several reasons: first, the security situation in places where the Defence Force is deployed is often not conducive to holding trials; second, the time taken to investigate serious offences may mean that the accused has already been posted back to Australia by the time proceedings get to the trial stage. A separate but related point is that the more serious offences, which the court would typically hear, can be heard more effectively and quickly in Australia.[72]

The Transitional Bill provides that the system of courts martial and Defence Force Magistrates is nevertheless to be retained for use in exceptional matters where it is not possible for the Military Court to sit overseas.

Management of the Military Court

Provisions

Clauses 28–49 of the Bill are machinery provisions which set out the management responsibilities of the Chief Justice of the Military Court, the establishment of Registries, the role of the Registrar and the appointment of other officers and staff. The provisions allow the Chief Justice to make arrangements with other courts and organisations and with the Chief of Defence Force to facilitate the management of the Military Court.

Business of the Military Court

Provisions

The Court is to be constituted by a single Judge or Federal Magistrate, or if it is to be a Full Court then it is to comprise three Judges sitting together (or two if one has to pull out).[73] Judges are to sit in the Appellate and Superior Division[74], while Federal Magistrates are to sit in the General Division.[75] The jurisdiction is to be exercised in open court unless there are reasons for the jurisdiction to be exercised in Chambers, or the public are to be excluded from the Court.[76]

Part 4 of the Bill also provides that the prerogative of mercy remains unaffected.[77] The Military Court has the same power as the High Court to punish for contempt.[78]

Original jurisdiction of the Military Court

Provisions

Part 5 of the Bill provides that the Military Court is to have original jurisdiction[79] regarding matters arising under the DFDA together with such other jurisdiction as is vested in it by Parliament.[80] The Military Court also is to have jurisdiction concerning appeals from service tribunals.[81]

However, the Military Court will not have original jurisdiction to hear and determine charges of custodial offences. These are relatively minor offences committed when a person is already a detainee. They include making excessive noise and committing a nuisance.[82] The maximum penalty for such offences is segregated confinement for ten days.[83] The Explanatory Memorandum states that punishments for such offences are more appropriately administered by a summary authority.[84] While it is to be expected that summary authorities would indeed administer most or all punishments for such offences, it is unclear why the Court’s jurisdiction has been expressly excluded. This matter was not raised in the Legal and Legislative Affairs Committee’s report. An extension of the Military Court’s jurisdiction to cover such offences is something the Parliament may wish to consider.

Clause 64 of the Bill provides that all charges of service offences are to be dealt with otherwise than on indictment.[85]

The original jurisdiction of the Military Court is to be exercised in the General Division by a single Federal Magistrate.[86] However, it is to be exercised by a Judge in the Appellate and Superior Division as follows:

·         for the proceedings for the trial of a charge of a Schedule 1 offence[87]—by a single Judge[88]

·         for proceedings in respect of an appeal from a determination of a court martial or a Defence Force magistrate under Schedule 3B to the DFDA or a question of law referred to the Full Court under that Schedule—by a Full Court[89] and

·         where the Chief Justice directs that the proceeding is to be heard and determined in the Appellate and Superior Division—by a single Judge.[90]

Key issue

Section 80 of the Constitution provides that:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Criminal offences are typically divided into summary and indictable categories, with the latter being more serious. What is or is not an indictable offence can vary between jurisdictions. However, in the federal jurisdiction it includes all offences punishable by more than 12 months imprisonment.[91] An indictable offence is typically tried before a judge and jury.

It is arguable that clause 64 has the effect of removing the right to trial by jury which is guaranteed for all indictable offences by section 80 of the Constitution. Many submissions to the Legal and Constitutional Affairs Committee expressed strong concerns about this provision.

The Returned Services League of Australia considered that:

… the legislation denies service members accused of serious service offences the right of trial by jury. This is at odds with the norms of contemporary Australian society which hold that service members are citizens and should enjoy all the privileges and rights of citizens including having the right of trial by jury when accused of serious service offences.[92]

Senior Counsel, Alexander Street, commented in a similar vein that:

The rule of law binds all Australian and the source of the rule of law as well as its supremacy is the Constitution. To devise a Military Justice system that deprives ADF members of their rights under s.80 falls below the standard of best practice in Military Justice System design and the deprival of that right will inevitably be held invalid by reason of being contrary to Chapter III.[93]

There is, however, a line of High Court authorities dating from 1928[94] which sets out the accepted position that:

… section 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticised, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled.[95]

It would appear that it is this line of authorities on which the Government has based the terms of clause 64 of the Bill. While it is accepted that the Parliament is able to determine which offences are to be indictable and which are not, there is concern at the apparent ease at which the right to a jury trial can be removed. In White v Director of Military Prosecutions[96], Justice Kirby stated:

In past cases, a majority of this Court has favoured the tautological view that s 80's guarantee of "trial by jury" is limited to cases in which the Parliament and the Executive provide for the commencement of prosecution by filing an indictment. However, a persistent minority has rejected this view as inconsistent with the function of s 80 as providing a guarantee of jury trial which could not so easily be circumvented. With respect, I favour what is presently the minority view. It is more harmonious with the language, constitutional context, purpose and function of the section. The contrary view renders trial by jury for the applicable federal offences optional in the hands of the very governmental agencies against whom jury trials can be a precious protection for the individual. That cannot be the meaning of the Constitution. When Australian judges and lawyers become more accustomed to reasoning by reference to fundamental rights, they will see the truth of this proposition more clearly.[97]

There is accordingly at least some possibility that the High Court might determine clause 64, if enacted, to be invalid as being contrary to section 80 of the Constitution.

In the case of Huddart Parker[98] the High Court had sought to identify ‘the essential features’ of the institution of trial by jury adopted by section 80 of the Constitution stating:

It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process.[99]

In Cheatle[100] the High Court endorsed those comments as follows:

That statement correctly draws attention to the representative character of a jury and to the fact-finding function which a jury traditionally served in civil litigation and in criminal committal and trial processes. It does not, however, attempt to address the more particular question of what, if any, are the minimum requirements which must be observed to ensure that a jury in a criminal trial is adequately representative of the community.[101]

The High Court went on to identify ‘unanimity, representativeness, randomness and impartiality as essential features’.[102]

Whilst it is arguable that clause 64 of the Bill detracts from a right guaranteed by section 80 of the Constitution, the provision of a jury trial with these ‘essential features’ could create significant problems in terms of identifying the group of persons from which any jury is to be selected. According to the Explanatory Memorandum, ‘a jury in a Chapter III court could not be … restricted to Defence members and a civilian would not necessarily be familiar with the military context of service offences’.[103]

In contrast to the present Bill, the 2006 legislation establishing the Australian Military Court did provide for juries—indeed for certain offences, ‘military juries’ were mandatory. Section 132A of the DFDA (as it existed immediately following the commencement of the 2006 amendments) provided for certain offences to be tried by a Military Judge and military jury—unless the accused person elected to be tried by a Military Judge alone.

Former sections 122–124 of the DFDA set out the constitution of military juries and the questions to be determined by a military jury. The terms of those sections are set out in Appendix A of this Bills Digest.

The existence of these provisions in 2006 legislation demonstrates that military juries have been considered feasible in the recent past.

The apparent rationale for the absence of jury trials is set out in the Explanatory Memorandum as follows:

Neither military nor civilian juries have traditionally been used in the military justice system, except for a brief period where military juries were used under the Australian Military Court system. Instead, the existing court martial system uses a panel of military officers or a Defence Force magistrate sitting alone … Within a Chapter III Court, trial by a judicial officer, who by reason of experience or training understands the nature of service in the ADF, is the best solution to ensure that the finder of fact appreciates the military context of alleged offences. Additionally, where the Military Court sits overseas, a requirement to empanel a civilian jury would create practical barriers to the prosecution of offences.[104]

It should be noted, however, that there is not a universal view that a jury trial is a desirable thing and there are provisions in Queensland, New South Wales, South Australia, Western Australia and the Australian Capital Territory for a person to elect to be tried by a judge alone.[105]

The primary tenet of the argument against jury trials is the lack of transparency. No written reasons are given, the decision is deliberated upon in private and no one (including the presiding judge) knows what happens behind closed doors.[106]

The alternative to jury trials is to have cases determined by a single judge or a panel of three judges—as in this Bill. The advantage is that written reasons are provided, enabling decisions to be appealed with more clarity and improving transparency in the process. In a submission to the New South Wales Legislative Council Standing Committee on Law and Justice Inquiry into judge alone trials under s.132 of the Criminal Procedure Act 1986, Malcolm McCusker QC argued that written judgments would afford clear avenues of appeal for counsel if they felt the decision of the judge was ‘perverse’:

You might get a jury that has a particular view that this is not dishonest and another jury later on says it is dishonest, and neither gives any actual reason, whereas if the judge concludes dishonesty the judge has to explain why and it is open then to scrutiny and possibly appeal. I do not think that having judges write the reason for the decision is going to create an avalanche of appeals, it is just that it gives the accused and … the prosecution a right of appeal if a verdict is clearly perverse.[107]

Part 5 of the Bill also contains detailed provisions relating to ongoing disclosure by the prosecution of such matters as its case against the defendant, details of proposed witnesses to be called at trial, documents that are to be tendered at trial, exhibits, and reports by expert witnesses.[108] The requirement of continuous disclosure is intended to ensure fairness and transparency.

Interaction with civilian law and the issue of double jeopardy

Provisions

Clauses 85–92 set out matters relating to pleas, the trial and verdicts. Importantly clause 92 provides that if the Military Court finds an accused person not guilty of a service offence covered by a charge in a charge sheet, the Military Court must acquit and discharge the accused person in relation to the charge.

Key issue

Speaking in relation to the Bill, the then Attorney-General, the Hon Nicola Roxon MP explained:

First, service offences are created for the purpose of maintaining discipline in the ADF. The military justice system complements and does not replace the criminal law in force in Australia, and so need not mirror the civilian court process. However, when ADF personnel commit criminal offences within Australia, they will continue to be tried by jury within the civilian criminal law system. Second, where there is need to try a service offence overseas, a requirement to empanel a civilian jury would create significant practical barriers to the prosecution of offences.[109]

There is some possibility that an accused could be tried twice for substantially the same offence, once under military law and once again under civilian law, and vice versa. This would be highly unjust. This possibility concerned the Legal and Constitutional Affairs Committee.[110]

To reduce the possibility of double jeopardy, section 63 of the DFDA already provides that the Director of Military Prosecutions must obtain consent from the Commonwealth Director of Public Prosecutions (DPP) before commencing military law proceedings for certain significant offences with civilian law equivalents, such as murder. While this does reduce the likelihood of double prosecution, most ‘civilian law crime’ in Australia comes within state and territory jurisdictions rather than the Commonwealth. Liaison between the Director of Military Prosecutions and the Commonwealth DPP may not be sufficient to prevent this problem.

According to Appleby and Williams:

The creation of a Chapter III court to hear and determine service offences substantially meets [the concerns about double jeopardy] more definitively. A conviction or acquittal by the new MCA will, beyond any doubt, prevent any other Chapter III court from hearing the same matter, leaving the potential for confusion only where a Defence Force member is tried by a service tribunal (that is, by a summary authority or, on rare occasions under the new regime, by a court-martial or DFM).[111]

To further reduce this possibility, subclause 190A(3) in the Transitional Bill provides that a person will not be liable to be tried for a service offence where he or she has already been tried by a civil court for substantially the same offence.

As originally enacted in 1982, subsection 190(5) of the DFDA provided that where a person has been acquitted or convicted of a service offence, that person is not liable to be tried by a civil court for a civil offence that is substantially the same. This was considered to be unconstitutional in Re Tracey; ex parte Ryan.[112] It should be noted, however, that that case concerned proceedings before a service tribunal (in that case a Defence Force Magistrate, Major RSS Tracey) rather than a Chapter III Court. It seems possible that an equivalent provision in the current Bill, concerning as it does a Chapter III Court, would be valid. This possibility was not raised in the Legal and Legislative Affairs Committee’s report, but could be considered now.

Appellate jurisdiction of the Military Court

Provisions

The Military Court has jurisdiction to hear and determine:

·         appeals from judgements or decisions of a Military Court constituted by a single Judge or a Federal Magistrate which was exercising the original jurisdiction of the Military Court—in which case the appeal involved a question of law and

·         appeals from judgements of the Military Court under Part 8 of this Bill which deals with custody and bail.[113]

Either an accused person or the Director of Military Prosecutions may make an application in accordance with subclause 98(4) or bring an appeal against a judgement or decision.[114] Generally a person will have 30 days in which to apply for leave to appeal or to file a notice of appeal in the Military Court. However, subclause 97(3) provides that the Military Court may extend the period if it is satisfied that it is in the interests of justice to do so.

When the Military Court is exercising its powers in the appellate jurisdiction it may dismiss or allow the appeal and take such other action as it thinks appropriate in the circumstances. Clauses 105–108 of the Bill set out the actions that the Military Court may take in relation to specified appeals.

Clause 109 provides that the Military Court may, if it considers it appropriate, allocate costs in the case of appeals by accused persons or appeals by the Director of Military Prosecutions.

Key issue

The Legal and Constitutional Affairs Committee noted the concerns of Alexander Street SC in relation to costs—in particular, ‘where if there is an appeal by the prosecutor against an outcome, a member could potentially be exposed to costs’.[115]

In response to question by the Legal and Constitutional Affairs Committee, a spokesperson for the Attorney-General’s Department stated that an award of costs would be at the discretion of the Military Court and costs would not necessarily be awarded in every case.[116] The report of the Legal and Constitutional Affairs Committee notes the Department of Defence’s position that the ‘discretion of the Military Court … to award costs is in keeping with the power of civilian courts, including other Chapter III courts, to make costs orders’.[117]

Appeals to the High Court

Provisions

Clause 113 sets out the circumstances in which there can be an appeal to the High Court against a judgement of the Military Court.

Key issue

The submission from Alexander Street SC to the Legal and Constitutional Affairs Committee states:

The constraints on appeals to the High Court of Australia do not reflect the appellate structure of section 73 of the Constitution and supremacy of the rule of law. This attempted constriction of the ability to appeal to the High Court of Australia is likely to be the cause of injustice and in any event will in my opinion be held to be Constitutionally invalid.[118]

According to the Explanatory Memorandum, the restricted nature of appeals to the High Court emphasises the role that the Military Court will have as the exponent of military law’.[119]

However, the Attorney-General's Department informed the Legal and Constitutional Affairs Committee that the limitations on appeals from the Military Court to the High Court are modelled on similar limitations for appeals from the Federal Court.[120]

Other clauses

Clauses 114–137 constitute Part 8 of the Bill. The provisions empower the Military Court to make arrangements for the custody, bail and discharge of an accused person. The provisions of Part 8 did not attract comments from either, submitters to the Legal and Constitutional Affairs Committee, or from the Committee itself.

Similarly, clauses 138–152 constitute Part 9 of the Bill, the provisions of which did not attract comments from either, submitters to the Legal and Constitutional Affairs Committee, or from the Committee itself.

Clause 140 of the Bill sets out the punishments the Court may impose on an officer of the ADF[121], a member of the ADF who is not an officer[122] and a person who is not a member of the ADF.[123] The punishments include, but are not limited to, imprisonment for a specific period (including for life), dismissal from the ADF (for members of the ADF) and fines. Clause 141 sets out restrictions on the Court’s powers to impose punishments. If the Court decides to impose imprisonment on an ADF member following conviction for a service offence, the Court must also dismiss the person from the military.[124] In contrast, detention in a military detention facility cannot be imposed on an ADF member whom the Court dismisses from the military.[125] Detention in a military detention facility may be imposed on a non-commissioned officer only if accompanied by a reduction in rank to below non-commissioned level.[126] Imprisonment must not be imposed on a person under eighteen years of age at the time of conviction.[127]

Part 10 of the Bill contains provisions about persons found unfit to be tried and persons acquitted because of mental impairment. They will replace the existing section 145 of the DFDA.

Schedule 1 lists the service offences to be dealt with by the Appellate and Superior Division (that is, by a Judge) rather than the General Division where the decision maker is a Federal Magistrate under clause 65 of the Bill. While most of the offences are military in nature, the offences listed in items 18–21 of the table in Schedule 1 can be seen as civilian in nature, that is:

·         selling prohibited drugs outside Australia

·         engaging in conduct in the Jervis Bay Territory that is a territory offence

·         engaging in conduct in a public place outside the Jervis Bay Territory that is a territory offence, and

·         engaging in conduct outside the Jervis Bay Territory that is a territory offence.

The offences in items 19–21 of the table in Schedule 1 bring the full range of civilian criminal law offences (for example, murder and fraud) within the scope of Australian military law.

Reservists and standby reservists as judicial officers

In their dissenting report, the Liberal Senators on the Legal and Constitutional Affairs Committee recommended that the Bill be amended to allow reservists and standby reservists[128] to be appointed to the Court, but only ‘to the extent that Chapter III of the Constitution allows this to occur’.[129] The Senators appear to be conceding a possibility that Chapter III might not permit this. Given the provisions establishing the former Australian Military Court were held to be invalid due to
non-compliance with Chapter III, it is understandable the Senators would hold this concern.

There does not appear to be a conflict between holding judicial office and being a military reservist (or standby reservist) per se. A judge of the Supreme Court of Western Australia or indeed the Family Court of Australia could be in the Army Reserve, and perhaps some are. Of more concern is the possibility of bias, even if it be merely perceived rather than actual bias. The fact that a Justice or a Federal Magistrate serving on the Military Court was actually in the military (even if only as a reservist or standby reservist)[130] would surely cause at least some people to wonder whether there was an appearance of bias or worse. In particular, it seems likely that a person convicted of a serious service offence by such a judicial officer would challenge the validity of the conviction on this very point, and the prospects of success would seem strong. Appointing reservists would therefore be counterproductive.

A solution to the issue of perceived bias arising from reservists being appointed as judicial officers of the Military Court is for them to leave the reserves immediately prior to appointment, and to re-join the reserves upon leaving the bench. This appears to cause no hardship or inconvenience to the judicial officers themselves or to the Military.

Concluding comments

Following the 2003 Committee Report noted above, both Coalition and ALP governments have sought to establish a Permanent Military Court. The provisions establishing the Australian Military Court were held to be unconstitutional by the High Court in 2009. The Military Court of Australia Bill 2010 lapsed when the forty-second Parliament was dissolved.

The present Bill (in conjunction with the Transitional Bill) seeks to establish a Military Court of Australia as a Chapter III Court within the Australian judicial framework. ADF personnel will have access to judicial determination for all service offences, with the exception of custodial offences. It is nevertheless envisaged that summary authorities will continue to handle most matters of a less serious nature, and the current system of courts martial and Defence Force Magistrates will be retained for use in exceptional circumstances where it is necessary but not possible for the Military Court to conduct a hearing overseas.

The most significant issue, which also featured prominently in the report of the Legal and Constitutional Affairs Committee, appears to be whether there should be the option of trial by jury for serious offences. A reasonable threshold for ‘seriousness’ would be whether the offence can be punishable by over 12 months imprisonment.

It can be argued that ADF personnel should enjoy the same rights to trial by jury as their civilian counterparts. There is a minority judicial view that the Constitutional guarantee in section 80 could prevent a total exclusion of ADF personnel from the right to a jury trial for serious offences, which is what clause 64 of the present Bill seeks to do. If this argument were accepted by the High Court, this provision would seem to be at least partially invalid, and any convictions for serious offences made pursuant to it would clearly be open to question.

According to the submission of David McLure to the Legal and Constitutional Affairs Committee:

If the Bill is passed, the trial of all charges before the Military Court of Australia (MCA) will be conducted by a single judge or Federal magistrate, without a military jury or court martial panel. The MCA will have the power to impose punishments of up to and including life imprisonment. This will put in place a system that is significantly out of step with the standards of the civilian justice system in Australia and the military justice systems employed by Australia’s closest allies.

The primary justification for the existence of a separate military justice system in Australia is that such a system maintains discipline in the Australian Defence Force and thereby enhances its capacity to be an effective fighting force. A system that excludes military officers from the determination of serious offences is less likely to achieve that effect.[131]

In support of Mr McLure’s first paragraph set out immediately above is the fact that the legislation establishing the Australian Military Court in 2006 did provide for the right to trial by military jury in cases of serious service offences. For ‘class 1 offences’ (as they then were), military juries were compulsory. The Parliament provided for military juries in 2006. In contrast, the government has now twice proposed not to provide such a right to ADF personnel.[132] If this Bill were to pass in its present form, there is some possibility that the High Court might hold this provision to be invalid, which could undermine and delay the overdue reform of the Australian Military Justice system for several more years.

In relation to Mr McLure’s second paragraph set out above, it is suggested that summary authorities (that is military officers) will continue to deal with the vast majority of service offences and that only the most serious matters must come before the Military Court. Added to this, ADF personnel will be able to have less serious service offences dealt with by a Military Court rather than a summary authority should they so wish. The right of access to a Court would clearly be in the interests of both justice and ADF personnel. There is no such right now for service offences, some of which are very serious indeed. Strict standards of impartiality would require that Judges and Federal Magistrates sitting on such a Court should not be current military personnel (including reservists). Many will have been in the ADF previously and perhaps some will be so again. This proposed system appears reasonable and it is difficult to support Mr McLure’s contention that the prohibition of ADF personnel from serving as judicial officers on the Court will adversely impact on discipline or that the ADF’s capacity to be an effective fighting force will be reduced.

Two possible further amendments suggested in this Bills Digest are (i) the extension of the Military Court’s jurisdiction to cover custodial offences and (ii) the adoption of a provision comparable to the former subsection 190(5) in the DFDA which required that where a person has been acquitted or convicted of a service offence, that person is not liable to be tried by a civil court for a civil offence that is substantially the same.

Appendix: A

Provisions of the DFDA immediately upon commencement of the Defence Legislation Amendment Act 2006

122 Constitution of a military jury

              (1)              There are to be:

              (a)              12 members on a military jury for a trial of a class 1 offence; and

              (b)              6 members on a military jury for a trial of a class 2 offence or class 3 offence.

              (2)              At least one member of the jury must hold a rank that is not lower than the naval rank of commander or the rank of lieutenant-colonel or wing commander.

              (3)              The requirements of subsection (2) apply only if, and to the extent that, the exigencies of service permit.

123 Eligibility to be a member of a military jury

Eligibility where accused is an officer or a defence civilian

              (1)              Where the accused person is an officer or a defence civilian, a person is eligible to be a member, or a reserve member, of a military jury for the trial of the accused person if:

                            (a)              the person is an officer; and

                            (b)              the person has been an officer for a continuous period of not less than 3 years or for periods that total no less than 3 years; and

              (c)              if the accused person is an officer—the person holds a rank that is not lower than the rank held by the accused person.

Eligibility where accused is not an officer or a defence civilian

              (2)              Where the accused person is not an officer or a defence civilian, a person is eligible to be a member, or a reserve member, of a military jury for the trial of the accused person if:

              (a)              the person:

              (i)              is an officer; or

              (ii)              holds a rank not lower than the naval rank of warrant officer, the army rank of warrant officer class 1, or the air force rank of warrant officer; and

              (b)              the person has been an officer, or held a rank not lower than warrant officer or warrant officer class 1, for a continuous period of not less than 3 years or for periods that total no less than 3 years.

              (3)              The requirements of this section apply only if, and to the extent that, the exigencies of service permit.

124 Determination of questions by a military jury

              (1)              In a trial of a charge of a service offence that is to be tried by Military Judge and military jury, the military jury is responsible for deciding the questions whether the accused person:

              (a)              is guilty or not guilty of the offence; and

              (b)              at the time of the act or omission the subject of the charge, was suffering from such unsoundness of mind as not to be responsible, in accordance with law, for that act or omission.

              (2)              A decision of a military jury on the questions in subsection (1) is to be made by:

              (a)              unanimous agreement of the jury members; or

              (b)              if the conditions in subsection (3) are met—five-sixths majority agreement of the jury members.

              (3)              The conditions are:

              (a)              the jury has deliberated for at least 8 hours; and

              (b)              the jury does not have unanimous agreement after that time but does have five-sixths majority agreement; and

              (c)              the Australian Military Court is satisfied that:

              (i)              the period of time for deliberation is reasonable, having regard to the nature and complexity of the case; and

              (ii)              after examination on oath or affirmation of one or more of the jurors, it is unlikely that the jurors would reach unanimous agreement after further deliberation.

              (4)              A military jury must sit without any other person present when deciding the questions in subsection (1).

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

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ISSN 1328-8091

[1].              A Proclamation must not specify a day that occurs before the day the Military Court of Australia (Transitional Provisions and Consequential Amendments) Act 2012 receives the Royal Assent.

[2].              Details of the passage of the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 are on the Bill homepage: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4854%22

[3].              The text of the Commonwealth of Australia Constitution Act (the Constitution) can be viewed at: http://www.comlaw.gov.au/Details/C2004C00469/Download

[4].              Foreign Affairs, Defence and Trade Reference Committee, Inquiry into the effectiveness of Australia’s military justice system, Senate, Canberra, viewed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=fadt_ctte/completed_inquiries/2004-07/miljustice/index.htm

[5].              Ibid., p. xxxvii.

[6].              Ibid., xlix.

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

[8].              Foreign Affairs, Defence and Trade Reference Committee, Inquiry into the effectiveness of Australia’s military justice system, op. cit., recommendation 18.

[9].              Foreign Affairs, Defence and Trade Reference Committee, Inquiry into the effectiveness of Australia’s military justice system, op. cit., recommendation 19.

[10].              Ibid., recommendation 20.

[11].              Ibid., recommendation 21.

[12].              Ibid., recommendation 22.

[13].              Ibid., recommendation 23.

[14].              Department of Defence, Government response to the Senate Foreign Affairs, Defence and Trade References Committee: report on the effectiveness of Australia’s military justice system, October 2005, p. 14, accessed 21 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Flcatalog%2F00133435%22

[15].              The text of the Defence Legislation Amendment Act 2006 can be viewed at: http://www.comlaw.gov.au/Details/C2006A00159/Download

[16].              S Harris Rimmer and J Moremon, Defence Legislation Amendment Bill 2006, Bills Digest, no. 48, 2006–07, Parliamentary Library, Canberra, 2006, viewed 21 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2FTCCL6%22

[17].              For example, Re Tracey; ex parte Ryan (1989) 166 CLR 518. See also http://www.austlii.edu.au/au/cases/cth/HCA/1989/12.html; Re Nolan; ex parte Young (1991) 172 CLR 460, see also http://www.austlii.edu.au/au/cases/cth/HCA/1991/29.html and Re Tyler; ex parte Foley (1994) 181 CLR 18, see also http://www.austlii.edu.au/au/cases/cth/HCA/1994/25.html

[18].              Standing Committee on Foreign Affairs, Defence and Trade, Defence Legislation Amendment Bill 2006 [Provisions], Senate, Canberra, October 2006, p. 6, viewed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=fadt_ctte/completed_inquiries/2004-07/def_leg_bill_06/report/index.htm

[19].              The text of the Defence Legislation Amendment Act 2008 can be viewed at: http://www.comlaw.gov.au/Details/C2008A00006/Download. Information about the operation of the amendments in that Act are at P Pyburne, Defence Legislation Amendment Bill 2008, Bills Digest, no. 75, 2007–08, Parliamentary Library, Canberra, 2008, accessed 21 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2FITUP6%22

[20].              R v Kirby; ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254, see also http://www.austlii.edu.au/au/cases/cth/HCA/1956/10.html

[21].              Lane v Morrision (2009) 239 CLR 230. See also, http://www.austlii.edu.au/au/cases/cth/HCA/2009/5.html

[22].              The text of the Military Justice (Interim Measures) Act (No. 1) 2009 can be viewed at: http://www.comlaw.gov.au/Details/C2009A00091/Download. The text of the Military Justice (Interim Measures) Act (No. 2) 2009 can be viewed at: http://www.comlaw.gov.au/Details/C2009A00092/Download. The Military Justice (Interim Measures) Act (No. 1) 2009 restored the previous system of service tribunals, while the Military Justice (Interim Measures) Act (No. 2) 2009 sought to save the punishments imposed by the Australian Military Court. The validity of the second Act was upheld by the High Court in Haskins v Commonwealth (2011) 244 CLR 22, see also http://www.austlii.edu.au/au/cases/cth/HCA/2011/28.htm

[23].              Information about the Military Court of Australia Bill 2010 is available on the Bill homepage at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4412%22

[24].              The terms of reference to the inquiry and a brief report by the Senate Legal and Constitutional Affairs Committee can be viewed at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2008-10/military_court/report/index.htm

[25].              The term service offence is defined in section 3 of the Defence Force Discipline Act 1982 as (a) an offence against this Act or the regulations, (b) an offence that is an ancillary offence in relation to an offence against this Act or the regulations and was committed by a person at a time when the person was a defence member or a defence civilian or (c) an older system offence.

[26].              Section 24 of the Defence Force Discipline Act 1982.

[27].              Section 26 of the Defence Force Discipline Act 1982.

[28].              Section 27 of the Defence Force Discipline Act 1982.

[29].              Section 25 of the Defence Force Discipline Act 1982.

[30].              Section 34 of the Defence Force Discipline Act 1982.

[31].              Section 61 of the Defence Force Discipline Act 1982.

[32].              Paragraphs 68(1)(a) and (b) of the Defence Force Discipline Act 1982.

[33].              Paragraph 68(1)(c) of the Defence Force Discipline Act 1982.

[34].              Paragraph 68(1)(p) of the Defence Force Discipline Act 1982.

[35].              Paragraph 68(1)(e) of the Defence Force Discipline Act 1982.

[36].              The term ‘defence civilian’ is defined in section 3 of the Defence Force Discipline Act 1982 as person (other than a defence member) who (a) with the authority of an authorised officer accompanies part of the Defence Force that is outside Australia, or on operations against the enemy, and (b) has consented, in writing, to subject himself or herself to Defence Force discipline while so accompanying that part of the Defence Force.

[37].              Sections 104–113 of the Defence Force Discipline Act 1982.

[38].              Sections 114–126 of the Defence Force Discipline Act 1982.

[39].              Sections 127–129A of the Defence Force Discipline Act 1982.

[40].              Part VII (sections 129D–149A) of the Defence Force Discipline Act 1982.

[41].              Part VIIIA (sections 150–169) of the Defence Force Discipline Act 1982.

[42].              Explanatory Memorandum, p. 1.

[43].              Clause 64 of the Bill.

[44].              Clause 52 of the Bill.

[45].              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

[46].              Legal and Constitutional Affairs Legislation Committee, Military Court of Australia Bill 2012 [Provisions] and 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

[47].              Ibid., p. 51.

[48].              Ibid., pp. 53–57.

[49].              Ibid., p. 57.

[50].              Ibid.

[51].              Ibid.

[52].              Ibid., p. 59.

[53].              Ibid., p. 60.

[54].              The Committee’s Report into the provisions of the Military Court of Australia Bill 2012 and the provisions of the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 can be viewed at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=fadt_ctte/completed_inquiries/index.htm

[55].              The submissions to the 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

[56].              For example, Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], 12 July 2012, p. 2, accessed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm and Australian Defence Association, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], 16 September 2012, p. 3, accessed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm

[57].              Australian Defence Association, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], 16 September 2012, p. 3, accessed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm

[58].              Returned Services League of Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], undated, p. 1, accessed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm

[59].              Explanatory Memorandum, p. 4.

[60].              The Statement of Compatibility with Human Rights can be found at pages 4-9 of the Explanatory Memorandum to the Bill.

[61].              The Federal Circuit Court of Australia Legislation Amendment Act 2012 amended the Federal Magistrates Act 1999 to rename the Federal Magistrates Court as the Federal Circuit Court of Australia and to change the title of Federal Magistrate to Judge with effect from a date to be fixed by Proclamation. That date is to be no later than six months after Royal Assent—that is, no later than 28 May 2013. The text of the Federal Circuit Court of Australia Legislation Amendment Act 2012 can be viewed at: http://www.comlaw.gov.au/Details/C2012A00165/Download

[62].              Clause 10 of the Bill.

[63].              Paragraph 11(3)(b) of the Bill.

[64].              Paragraph 11(3)(c) of the Bill.

[65].              Subclause 11(4) of the Bill.

[66].              Australian Defence Association, op. cit., p. 9.

[67].              Explanatory Memorandum, p. 13.

[68].              M Groves, Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Hansard, 14 September 2012, p. 25, accessed 21 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommsen%2Feee995ac-c7cb-46e7-ba3f-8925b5d0fb50%2F0000%22

[69].              Legal and Constitutional Affairs Legislation Committee, op. cit., p. 23.

[70].              Subclause 51(3) of the Bill sets out those matters which must be considered by the Military Court in its determination of whether it is necessary to sit in a place outside Australia.

[71].              Subclause 51(4) of the Bill sets out those matters which must be considered by the Military Court in its determination of whether it is possible to sit in a place outside Australia.

[72].              A Duxbury, R Liivoja and M Groves, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], 13 July 2012, p. 4, accessed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm

[73].              Subclauses 52(1) and (2) of the Bill.

[74].              Subclause 54(1) of the Bill.

[75].              Subclause 54(2) of the Bill.

[76].              Clause 56 of the Bill.

[77].              Clause 60 of the Bill. The prerogative of mercy is the power of the Crown to grant a pardon to a person who has been convicted and sentenced for an offence by a court or remit all or part of the person’s sentence. The prerogative is generally exercised by the Governor or Governor-General on advice of the executive government. Source: Butterworths Concise Australian Legal Dictionary, third edition, LexisNexis Butterworths, Australia, 2004, p. 337.

[78].              Clause 61 of the Bill. A contempt of court is words or actions which interfere with the proper administration of justice or constitute a disregard for the authority of the court. Source: Butterworths Concise Australian Legal Dictionary, third edition, LexisNexis Butterworths, Australia, 2004, p. 91. Section 24 of the Judiciary Act 1903 provides the High Court with the authority to punish a contempt of court. The text of the Judiciary Act 1903 can be viewed at: http://www.comlaw.gov.au/Details/C2012C00690/Download

[79].              Original jurisdiction means the jurisdiction of a court to hear and determine proceedings brought before it in the first instances rather than on appeal from a lower court. Source: Butterworths Concise Australian Legal Dictionary, third edition, LexisNexis Butterworths, Australia, 2004, p. 312.

[80].              Subclause 63(1) of the Bill.

[81].              Subclause 63(3) of the Bill.

[82].              The list of custodial offences is set out in section 54A of the Defence Force Discipline Act 1982.

[83].              Subsection 54A(4) of the Defence Force Discipline Act 1982.

[84].              Explanatory Memorandum, p. 29.

[85].              Clause 62 of the Military Court of Australia Bill 2010 was in the same terms.

[86].              Subclause 65(1) of the Bill.

[87].              A Schedule 1 offence is defined in subclause 65(5) of the Bill as (a) an offence against a provision of the DFDA that is specified in the table in Schedule 1 to the Act or (b) an offence that is an ancillary offence in relation to an offence referred to in the table in Schedule 1 and was committed by a person at a time when the person was a defence member or a defence civilian.

[88].              Paragraph 65(2)(a) and subclause 65(3) of the Bill.

[89].              Paragraph 65(2)(b) and subclause 65(4) of the Bill.

[90].              Paragraph 65(2)(c) and subclause 65(3) of the Bill.

[91].              Section 4G of the Crimes Act 1914 (Cth). The text of the Crimes Act 1914 can be viewed at: http://www.comlaw.gov.au/Details/C2013C00031/Download

[92].              Returned Services League of Australia, op. cit.

[93].              A Street, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], 11 July 2012, p. 4, accessed 21 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm

[94].              R v Archdall and Roskruge; ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128, accessed 21 January 2013, http://www.austlii.edu.au/au/cases/cth/HCA/1928/18.html

[95].              Kingswell v the Queen [1985] HCA 72; (1985) 159 CLR 264 per Gibbs CJ, Will and Dawson JJ at pp. 276–277, accessed 21 January 2013, http://www.austlii.edu.au/au/cases/cth/HCA/1985/72.html

[96].              White v Director of Military Prosecutions, [2007] HCA 29; (2007) 231 CLR 570, see also: http://www.austlii.edu.au/au/cases/cth/HCA/2007/29.html

[97].              Ibid., paragraph 167.

[98].              Huddart, Parker and Co. Proprietary Ltd. v Moorehead (1909) 8 CLR 330. See also: http://www.austlii.edu.au/au/cases/cth/HCA/1909/36.html

[99].              Ibid., p. 375.

[100].              Cheatle v R [1993] HCA 44; (1993) 177 CLR 541, accessed 24 January 2013, http://www.austlii.edu.au/au/cases/cth/HCA/1993/44.html

[101].              Ibid., paragraph 4.

[102].              J Stellios, ‘The High Court’s recent encounters with section 80 jury trials’, Criminal Law Journal, vol. 29, 2005,
pp. 139–153 at p. 147, accessed 24 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2FFGHG6%22

[103].              Explanatory Memorandum, p. 2.

[104].              Ibid.

[105].              Chapter 62, Division 9A, Criminal Code Act 1899 (Qld), accessed 25 January 2013, http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/; section 132, Criminal Procedure Act 1986 (NSW), accessed 25 January 2013, http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa1986188/; section 7, Juries Act 1927 (SA), accessed 25 January 2013, http://www.austlii.edu.au/au/legis/sa/consol_act/ja192797/; Part 4, Division 7, Criminal Procedure Act 2004 (WA), accessed 25 January 2013, http://www.austlii.edu.au/au/legis/wa/consol_act/cpa2004188/ and section 68B, Supreme Court Act 1933 (ACT), accessed 25 January 2013, http://www.austlii.edu.au/au/legis/act/consol_act/sca1933183/

[106].              A Van Onselen, ‘Are juries a waste of time?’, The Sunday Telegraph, 28 August 2011, p. 99, accessed 25 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1037343%22

[107].              Standing Committee on Law and Justice, Inquiry into judge alone trials under s.132 of the Criminal Procedure Act 1986, Parliament of New South Wales, 8 November 2010, p. 27, accessed 25 January 2013, http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/8532dcbfa13afcc7ca2577d400826cd1/$FILE/101108%20Final%20Report.pdf

[108].              Clause 77 of the Bill.

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

[110].              Legal and Constitutional Affairs Committee, op. cit. pp. 26-27.

[111].              G Appleby and J Williams, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], 12 July 2012, p. 5, accessed 24 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/military_court_2012/submissions.htm

[112].              Re Tracey; ex parte Ryan, op. cit., per Mason CJ and Wilson and Dawson JJ at pp. 546-549 and per Brennan and Toohey JJ at pp. 574-579.

[113].              Clause 94 of the Bill.

[114].              Clause 96 of the Bill. However, subclause 96(3) limits the Director of Military Prosecutions from making an application or bringing an appeal in relation to a judgement that acquits the accused person or an order made under section 153 (persons found unfit to be tried) or section 154 (persons acquitted because of mental impairment at time of the conduct constituting the service offence).

[115].              Senator Fawcett, Legal and Constitutional Affairs Legislation Committee, Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], 14 September 2012, p. 52, accessed 24 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommsen%2Feee995ac-c7cb-46e7-ba3f-8925b5d0fb50%2F0000%22

[116].              Meibusch, op. cit.

[117].              Legal and Constitutional Affairs Legislation Committee, Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], op. cit., pp. 32–33.

[118].              A Street SC, Submission to the Senate Legal and Constitutional Affairs Committee: Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], op. cit., p. 12.

[119].              Explanatory Memorandum, p. 50.

[120].              Legal and Constitutional Affairs Legislation Committee, Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], op. cit., p. 31. Section 33 of the Federal Court Australia Act 1976 is in effect the same as clause 113 of the Bill. The text of the Federal Court of Australia Act 1976 may be accessed at: http://www.comlaw.gov.au/Details/C2013C00052/Download viewed 7 February 2013.

[121].              Subclause 140(2) of the Bill.

[122].              Subclause 140(3) of the Bill.

[123].              Subclause 140(4) of the Bill.

[124].              Subclause 141(1) of the Bill.

[125].              Subclause 141(4) of the Bill.

[126].              Subclause 141(2) of the Bill.

[127].              Subclause 141(3) of the Bill.

[128].              Standby reservists are persons who have recently either (i) left the permanent forces or (ii) ceased being active reservists, and who remain susceptible to being called up during emergencies. This is provided for in Regulation 124 et seq. in the Defence (Personnel) Regulations 2002, which may be viewed at: http://www.comlaw.gov.au/Details/F2011C00313/Html/Text#_Toc293309601. See also the 2013 ADF Transition Handbook, accessed on 23 January 2013, which may be viewed at http://www.defence.gov.au/dco/documents/2013%20ADF%20Transition%20Handbook%20FINAL.pdf

[129].              Legal and Constitutional Affairs Legislation Committee, op. cit., p. 57.

[130].              Reservists are part of the military. Section 31 of the Defence Act 1903 provides, for example, that the Australian Army consists of the Regular Army and the Army Reserve. Subclause 11(4) of the current Bill (which precludes appointment of ADF members to the Military Court as Judges or Federal Magistrates) would indeed require amendment to allow reservists to be appointed. The text of the Defence Act 1903 can be viewed at http://www.comlaw.gov.au/Details/C2012C00270/Download

[131].              D McLure, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Military Court of Australia Bill 2012 [Provisions] and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions], op. cit.

[132].              Clause 64 of the current Bill and clause 62 of the Military Court of Australia Bill 2010 are identically worded and provide that charges of service offences shall be dealt with otherwise than on indictment, that is, no jury.