Bills Digest No. 183 2002-03
Defence
Legislation Amendment Bill 2003
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.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Defence Legislation Amendment Bill
2003
Date
Introduced: 26 March 2003
House: House
of Representatives
Portfolio:
Defence
Commencement:
Amendments of the Defence Force Discipline Act 1982
commence 28 days after the date of Royal Assent. Other amendments
commence on a variety of dates. Where necessary, these commencement
dates are stated in the Main Provisions section of this
Digest.
Among other things, to make
changes to the Defence Force Discipline Act 1982 in
response to recommendations made by the Abadee report, A Study
into the Judicial System under the Defence Force Discipline
Act.
Australia s system of
Defence Force discipline is summarised in the 1999 report of the
Joint Standing Committee on Foreign Affairs, Defence and
Trade,
Military Justice Procedures in the Australian Defence
Force. The Defence Force Discipline Act
1982 (DFDA) is the primary statute. It:
creates service offences and service
tribunals, vests service tribunals with jurisdiction to hear and
try service offences and provides for the punishment of persons
convicted of service offences. The Act also contains detailed
provisions in respect of arrest, search and custody and the
investigation of service offences and establishes a comprehensive
system for the appeal and review of convictions and punishments.
Finally, it creates the office of the Judge Advocate General,
details procedural matters and details the principles of criminal
liability that are to apply to proceedings conducted by service
tribunals.(1)
Also relevant are regulations and rules
made under the DFDA, other Commonwealth statutes such as the
Criminal Code, the Evidence Act 1995 and the Defence
Force Discipline Appeals Act 1955. The last piece of
legislation provides the means by which those convicted by courts
martial or Defence Force magistrates can appeal their
conviction.(2)
Three categories of offence are created
by the DFDA. First, there are offences peculiar to the defence
forces, such as endangering morale, absence without leave, and
disobedience of command. (3) Second, there are offences
that are the same or similar to, civil offences but that apply only
to service equipment, defence members or defence
civilians.(4) These offences include destruction or
unlawful possession of service property and dealing in narcotic
goods. Last, the DFDA imports offences directly from the general
law. (5) However, certain very serious offences are not
tried before service tribunals. Thus, the DFDA provides that
offences like treason, murder, manslaughter and bigamy cannot be
tried by a service tribunal without the consent of the Commonwealth
Director of Public Prosecutions.(6)
Convening Authorities who are appointed
by Service Chiefs have important roles in relation to prosecutions
under the DFDA. For instance, they decide whether there should be a
trial and what the charges should be. Prior to the administrative
changes made in the aftermath of the Abadee report (see below) a
Convening Authority also exercised other functions for instance, it
decided who would try a matter and selected the trial
judge.
Under the DFDA, minor disciplinary
breaches can be dealt with by Discipline Officers. Additionally,
the DFDA establishes two classes of service tribunal authorised to
try less trivial service offences .(7) Service tribunals
are ad hoc tribunals rather than bodies with a permanent existence.
Service offences (8) include offences against the DFDA
or regulations (see above). The first class of tribunal is the
summary authority . Summary authorities deal with most matters and
are drawn from the ranks of ADF officers. They try the less serious
service offences, conduct preliminary hearings for more serious
offences and have more limited powers of punishment than courts
martial.
The second class of tribunal consists of
courts martial and Defence Force Magistrates (DFMs). The DFDA
provides that a General Court Martial consists of a President, who
cannot be below the rank of Colonel, and at least four other
members.(9) It is able to try serious offences and is
empowered to hand down the most severe penalties of all the service
tribunals. A Restricted
Court Martial consists of a
President who cannot be below the rank of lieutenant-colonel and at
least two other members.(10) It hears matters like
absence, insubordination, assault and theft.
A court martial performs a jury-like
function and also determines punishment.(11) Members of
courts martial are all serving officers and, until recently, were
appointed by a Convening Authority.
Binding legal rulings are provided to
courts martial by Judge Advocates (JAs) who are legal practitioners
of at least 5 years standing.(12) Judge Advocates
perform essentially the same function as is performed by a judge in
a jury trial.
Trial before a Defence Force Magistrate
is another way of dealing with service offences, particularly
offences not suitable for trial before a summary authority or court
martial, like complex fraud matters.(13) DFMs are
appointed by the Judge Advocate General (JAG). However, the JAG can
only appoint a person who is a member of the judge advocate s
panel. A person cannot be appointed to the panel unless he or she
is a legal practitioner of at least 5 years standing who has been
appointed by a Chief of Staff nominated by the JAG. Typically, DFMs
are senior full-time ADF legal officers or senior part-time ADF
lawyers, such as Queen s Counsel and civilian magistrates.
(14)
The JAG is an independent statutory
office created under section 179 of the DFDA. The JAG must be a
Federal Court or State Supreme Court judge. The functions of the
office include:
making procedural rules for service
tribunals, providing the final legal review of proceedings within
the ADF, participating in the appointment of Judge Advocates,
Defence Force Magistrates and legal officers for various purposes
and reporting upon the operation of laws relating to the discipline
of the ADF.(15)
In 1995 Brigadier the Hon
Mr Justice Abadee, a NSW Supreme Court
judge and a Deputy Judge Advocate General, was commissioned by the
Chief of the Defence Force (CDF) to examine arrangements for the
conduct of trials under the DFDA in order to determine whether
those arrangements satisfied current tests of judicial impartiality
and independence.(16) The Abadee inquiry was appointed
in the aftermath of a number of High Court challenges to the system
of military justice established under the DFDA.(17)
Additionally, judicial decisions in the United
Kingdom and Canada had
determined that aspects of the military justice systems in those
countries did not satisfy standards of judicial independence and
impartiality.(18)
Brigadier Abadee s report, A Study
into the Judicial System under the Defence Force Discipline
Act was presented to the CDF on 11 August
1997. It was not made public. However, its 48
recommendations are summarised in an Appendix to the report of the
Joint Standing Committee on Foreign Affairs, Defence and Trade,
Military Justice Procedures in the Australian Defence
Force (see below).(19) Thirty-nine of Brigadier
Abadee s recommendations were agreed to by the CDF.(20)
Among the most important of Brigadier Abadee s comments were those
relating to the Convening Authority. He said:
There is a most powerful case for
eliminating the multiple roles of the convening
authority.(21)
In its report on military justice, the
Joint Committee described the multiple roles of the Convening
Authority and also set out Brigadier Abadee s concerns:
Under current arrangements the Convening
Authority in ADF disciplinary proceedings has the power
to:
determine whether there should be a
trial;
determine the nature of the tribunal and the
charges;
select the trial judge and jury;
select the prosecutor; and
review the proceedings.
Justice Abadee
noted concerns that these arrangements may engender a
perception of unfairness regardless of the actual fairness of the
particular proceedings. Having initiated the prosecution, the
Convening Authority could be seen to have an interest in the
outcome of the case justifying the decision to prosecute. Further,
where the officer presiding at the trial is under the command of
the Convening Authority, allegations may be levelled regarding the
undue influence of the Convening Authority, to the possible
detriment of the accused individual. As one of a number of measures
to address this shortfall in the current system,
Justice Abadee recommended that the
multiple roles of the Convening Authority be
removed.(22)
In his 1997 Annual Report, the Judge
Advocate General commented:
The recommendations in the Abadee report are
based on a recognition of the importance of maintaining service
discipline whilst, at the same time, paying proper regard to both
the existence and appearance of a fair trial and independent system
of trial.
The most important recommendations relate to
the multiple roles presently vested in the Convening Authority. The
first of those roles is concerned with the decision to lay charges
and the selection of appropriate charges. However the Convening
Authority also appoints the Judge Advocate and the members of the
court or the Defence [F]orce Magistrate. It is my firm view that
Command influence should cease at the point at which charges are
laid. In the light of present day concerns for an independent trial
in disciplinary procedures and the experience in other military
jurisdictions, I regard it as essential that both the Judge
Advocate and members of the court or the Defence Force Magistrate
be appointed by an authority other than the Convening Authority. If
the reforms presently under consideration are implemented these
functions will be vested in the Judge Advocate
General.(23)
In June 1998, the position of Judge
Advocate Administrator (JAA) was created by administrative
decision. The JAA is now called the Chief Judge
Advocate(24) a position that will be statutorily
constituted by the Defence Legislation Amendment Bill 2003. The
position was established to consider requests for the selection of
Judge Advocates and Defence Force Magistrates and to send the
requests to the JAG for decision. As the JAG remarked:
In practical terms this procedure separates
the process of selecting a JA or DFM from the convening authority
and accordingly, makes the appointment of this officer independent
of the authority preferring the charges against the
accused.(25)
In June 1999, the Joint Standing
Committee on Foreign Affairs, Defence and Trade reported that the
Australian Defence Force (ADF) had agreed that Convening
Authorities would continue to decide whether to prosecute but would
no longer select the members of a Court Martial or Defence Force
Magistrate, that a prosecution policy would be introduced to guide
Convening Authorities and that reviews of court martial proceedings
and DFM trials would be conducted by an authority other than the
Convening Authority.(26) The ADF said that the function
of selecting members of courts martial and DFM would be transferred
from the Convening Authority to the JAG.(27)
In his annual report for 1999, the Judge
Advocate General reported that administrative policy and procedures
designed to respond to the Abadee report were being implemented
where possible in order to give practical effect to the
recommendations in anticipation of legislative change
.(28) These changes included:
administrative directions which give effect
to the separation of review of courts martial and Defence Force
magistrate trials from the power to convene, and the transfer of
the power to select Judge Advocates, Defence Force magistrates and
Section 154 Reporting Officers to [the office of the Judge Advocate
General].(29)
Additionally, the Judge Advocate General
reported in 1999 that the Judge Advocate Administrator had been
consulting with the three Services to develop appropriate
procedures for the transfer of responsibility for selection of
courts martial members from the convening authority to my office.
(30)
In his annual report for 2000, the Judge
Advocate General said that ministerial approval had been obtained
for statutory amendments to give effect to the Abadee report
recommendations but that, due to other legislative priorities,
legislation was unlikely to be introduced before
2002.(31)
The need for the post-Abadee reforms to
be reviewed has also been considered. For instance, the Joint
Standing Committee has said it:
accepted that the proposed post-Abadee
reforms to the ADF discipline system appear to
establish a balance between the needs of the ADF, the interests of
justice per se and its practical administration in the ADF.
However, the issue of institutional independence in relation to
prosecution should be reviewed after the proposed post-Abadee
arrangements have been in operation for sufficient time to allow
the impact to be assessed. a review after three years would be
appropriate.(32)
This recommendation was supported by the
Government Response to the Joint Standing Committee
report.(33)
Part of the Model Criminal Code project,
in which the Commonwealth has been involved, has included the
enactment of principles of criminal responsibility which now apply
to all Commonwealth offences. These principles are found in Chapter
2 of the Commonwealth Criminal Code. Before Chapter 2 could be
applied to all Commonwealth offences, existing offence provisions
were reviewed with a view to harmonising them with Chapter 2,
modifying its application where necessary or clarifying the
application of Chapter 2.
During 2001 application statutes were
passed for legislation in each Commonwealth Government portfolio.
However, not all offence provisions were clarified in this process.
Items 4 and 5 of Schedule
1 are designed to do so. They repeal and replace sections
35 and 36A of the DFDA. Three separate offences are created as a
result negligent performance of duty, unauthorised discharge of a
weapon and negligent discharge of a weapon.(34) Further,
as a result of re-structuring the offences, the amendments clarify
that the fault element of intention applies to the element of
conduct in the offences and negligence to the result of that
conduct.
Item 6 repeals section
40B of the DFDA ( negligent conduct in driving by a defence member
or defence civilian).
Part VI of the DFDA provides for the
investigation of service offences. Section 101C sets out the rights
of a person in custody in respect of a service offence, before they
have been charged or summoned. For instance, a detainee cannot be
questioned by an investigating officer unless he or she has been
told the name and rank of the investigating officer [subsection
101C(1)] and either:
cautioned as required by subsection 101D(2)
. This inserts a requirement that the caution(35) must
be given in a language in which the person is reasonably fluent,
or
informed, in a language in which they are
reasonably fluent, of the matters referred to in subparagraphs
101D(2)(a)(i), (ii) and (iii) .
The caution need not be given in writing.
The references to subparagraphs 101D(2)(a)(i), (ii) and (iii)
quoted above are otiose because they were repealed by the
Defence Legislation Amendment Act 1995. The effect of
items 8 and 9 is remove the
repealed references, re-insert the cautioning requirements and add
two new requirements that apply when a person is detained and
questioned:
if practicable the caution and the response
to it must be tape recorded, and
if no tape recording is made then, in any
proceedings before a service tribunal, the prosecution has the
burden of proving it was not practicable to make the
recording.
As stated in the Background section of this
Digest, the DFDA establishes convening authorities to convene
courts martial and restricted courts martial and to exercise other
statutory powers and functions.(36) Under the DFDA,
where a charge is referred to a Convening Authority, it may direct
that the charge not be proceeded with, it may refer the charge for
trial or convene a court martial.(37) A Convening
Authority has similar referral powers if a reviewing body, the
Defence Force Discipline Tribunal or the Federal Court orders a new
trial for a person.(38) The Convening Authority also has
decision-making and referral powers where a person elects to be
tried or punished by a Defence Force magistrate.(39)
Last, where proceedings before a DFM are terminated by a Convening
Authority under subsection 129A(4) of the DFDA, the Convening
Authority may refer the matter to a DFM or court martial for action
under Part IV of the DFDA.
Notes inserted by items
12-15 and 22 state that where a charge or
a case is referred to a DFM, it must be referred to the magistrate
nominated by the Judge Advocate General. It appears that, in
practice, this power is already with the JAG as a result of the
implementation of administrative directions. However, the notes
foreshadow the substantive amendment of the DFDA which gives an
explicit statutory power to the JAG to effectively select Defence
Force Magistrates (see below, new subsection
129C(1)).
Item 16 adds some natural
justice requirements to provisions relating to the Convening
Authority. For instance, if a Convening Authority believes that he
or she would be biased or seen to be biased in exercising powers in
relation to charging a person, or ordering a new trial referring a
convicted person for punishment or other action to a Defence Force
Magistrate or court martial, the Convening Authority will be able
to refer the charge, order or conviction to another Convening
Authority [new subsection 103(8)]. New provisions
will also enable the Convening Authority to refer a matter to
another Convening Authority if the interests of justice require it
[new subsection 103(9)]. The Explanatory
Memorandum explains that:
There is currently no provision in the DFD
Act that allows one convening authority to refer a charge to
another convening authority. In certain circumstances this may be
required in the interests of justice because of service exigencies
or the need to maintain the independence of the convening
process.(40)
Item 17 repeals section
118 of the DFDA. Section 118 provides that a Convening Authority
cannot appoint a person to be a member or JA of a court martial if
he or she believes the person would be biased or be seen to be
biased. Section 118 is no longer needed because Convening
Authorities will no longer have independent powers of appointment
under the DFDA. The requirement to avoid bias in the appointment of
court martial members or JAs will be part of the responsibility of
the JAG, who will effectively determine who will sit on courts
martial as a result of the amendments made by new section
129B (see below).
Items 18-20 insert notes
into relevant provisions in the DFDA to the effect that a Convening
Authority must not appoint a person as a member or JA of a court
martial unless the person has been nominated by the JA. These notes
also refer to new subsection 129B, which will
contain the JA s substantive powers in relation to the appointment
of courts martial members and JAs.
Part XI of the Defence Force
Discipline Act 1982 provides for the appointment of a Judge
Advocate General and Deputy Judge Advocates General. The JAG must
be a person who is or has been a judge of a federal court or a
State or Territory Supreme Court. Deputy Judge Advocates may be
drawn from the ranks of legal practitioners with five years
standing.
As stated earlier, the functions of the
Judge Advocate General include making procedural rules for service
tribunals, providing the final legal review of proceedings within
the ADF, [and] participating in the appointment of Judge Advocates,
Defence Force magistrates and legal officers for various purposes
(41) As a result of administrative directions issued in
the aftermath of the Abadee report, the JAG s role has been
enhanced. For instance, the JAG selects Judge Advocates for courts
martial.
New sections 129B and
129C give a statutory power to the Judge Advocate
General to effectively determine who will be appointed to courts
martial and who will be the DFM trying a particular charge. While a
convening authority will appoint the person, it cannot do so unless
the JAG has nominated the person for the position. New
subsection 129B(2) provides that the JAG cannot nominate a
person as a member or JA of a court martial if he or she believes
the person is biased or would be seen to be biased.
Part IX of the DFDA contains provisions
relating to the review of service tribunal proceedings. All
convictions and punishments are automatically reviewed by a
reviewing authority .(42) Additionally, a person
convicted of a service offence can petition for a review by a
reviewing authority appointed by the Service Chief. This petition
must be lodged within 90 days of the conviction.(43)
There may then be a further review by the Service Chief. A person
convicted by a court martial or DFM may also be able to appeal
their conviction to the Defence Force Discipline Appeals
Tribunal.(44)
The requirement that a petition for
review by a reviewing authority be lodged within 90 days of
conviction is amended by items 28 and
29 so that a person will have 30 days after the
automatic review has been completed to lodge their petition. The
amendments also give the reviewing authority the power to extend
the 30 day period.
Item 24 makes an
amendment designed to ensure that reviewing authorities are
impartial. It provides that a reviewing authority will only be a
competent reviewing authority in relation to a particular charge if
it has not exercised any powers as a Convening Authority in
relation to that charge (new section 150A).
Consequential amendments are also made which either replace the
expression, reviewing authority with the expression competent
reviewing authority or use the expression competent reviewing
authority , where relevant (items 26, 28 and
30).
Section 154 of the DFDA presently
provides that a reviewing authority cannot commence a review of
court martial or DFM proceedings that have resulted in a conviction
without first obtaining a report on the proceedings from a legal
officer appointed by the CDF or a service chief. Item
31 provides that such a legal officer cannot be appointed
for more than three years but can be reappointed.
Items 32, 33 and
45 correct outdated references to the Chief of
Staff that were missed when the Defence Legislation Amendment
Act (No. 1) Act 1997 was enacted.
The DFDA empowers Discipline Officers to
deal with minor discipline infringements that would otherwise be
dealt with as service offences and to do so without resort to the
more formal and administratively complex summary trial procedures.
(45)
The disciplinary infringements that can
be dealt with by Discipline Officers include absence from duty,
disobedience of a lawful command, failure to comply with a lawful
general order, and sleeping or being drunk on watch.(46)
The powers of Discipline Officers include imposing fines,
restricting privileges, stopping leave, and imposing extra duties
or extra drill. A Discipline Officer may decide not to impose any
penalty if the infringement is trivial or decline to deal with a
matter that is too serious.(47)
At present the jurisdiction of
Discipline Officers extends only to defence members who hold a rank
below non-commissioned rank.(48) The effect of
items 34-36 is that officer cadets (49)
will also be subject to the jurisdiction of Discipline Officers for
minor disciplinary infringements under Part IXA of the
DFDA.
Item 38 is designed to
provide certainty about when punishments imposed by a Discipline
Officer take effect. It inserts new section 169FA
into the DFDA, which states that a Discipline Officer may impose a
punishment that takes effect immediately or one which commences on
a specific day. In the latter case, the punishment must commence
within 14 days of its imposition.
New sections 188A-188B
provide for the appointment of a Chief Judge Advocate whose
functions are to provide administrative assistance to the Judge
Advocate General. Additionally, the JAG can delegate his or her
powers to the Chief Judge Advocate except for the power to appoint
Defence Force Magistrates, to dissent from a legal opinion in a
report of a reviewing authority, or nominate members of the judge
advocates panel. In exercising a delegated power the Chief Judge
Advocate is subject to the direction and control of the
JAG.
A person cannot be appointed as a Chief
Judge Advocate unless he or she holds the rank of naval captain,
colonel or group captain and is a member of the judge advocates
panel (new section 188C).
In 1989 the High Court handed down its
decision in Re
Tracey; Ex parte
Ryan. In this case Staff
Sergeant Ryan challenged the jurisdiction
of a Defence Force Magistrate to hear and determine three charges
that had been brought against him under the DFDA. He argued that
the DFM s statutory powers offended the constitutional separation
of powers found in Chapter III of the Constitution and, further,
that by reason of section 80 of the Constitution, a jury trial was
mandated in his case.
The High Court rejected these
arguments.(51) However, a majority of the Court
concluded that two particular provisions, severable from the rest
of the DFDA, interfered with the exercise by State courts of their
criminal jurisdiction and thus exceeded the Commonwealth s powers
in sections 51(vi) and (xxxix) of the Constitution. The provisions
were subsections 190(3) and (5) of the DFDA. They were designed to
protect a defence member from the double jeopardy of prosecution
before a service tribunal and before a civil court.
(52)
The result of the invalidity of the two
subsections is that, in the words of Brennan
and Toohey JJ:
[A] defence member whose conduct renders him
liable to punishment for a service offence and a corresponding
civil offence is amenable to the jurisdiction of a civil court as
well as the jurisdiction of a service tribunal and (subject to any
common law protection from double jeopardy) punishment as for a
civil offence as well as for a service
offence.(53)
Having been invalidated by the High
Court, subsections 190(3) and (5) have no operation and are thus
repealed by items 41-44.
Item 46 provides that
appointments to the judge advocate s panel cannot exceed three
years. However, a person can be reappointed. This amendment applies
to appointments made after the proposed legislation receives Royal
Assent (item 48).
Schedule 3 of the DFDA sets out tables
of punishments that can be imposed by a superior summary authority
(Table A), a commanding officer (Table B) and a subordinate summary
authority (Table C). Subordinate summary authorities can be either
Naval officers above a certain rank (in which case certain
punishments can be imposed) or any other subordinate authority (in
which case lesser punishments can be imposed). Item
47 repeals and replaces those parts of Table C that relate
to any other subordinate authority so that they reflect the
hierarchy of punishments contained in section 68 of the DFDA. The
amendments are also designed to clarify that commanding officers
and executive officers of ships and naval establishments have the
power to impose punishment on soldiers and airmen, as well as the
power to try soldiers and airmen under subsection 108(2).
(54)
Amendments relating to the cadet
services commence six months after the date of Royal Assent unless
earlier proclaimed (clause 2).
In 2000, the Government released a
review of the Australian Services Cadet Scheme (ASCS), Cadets:
The Future.(55) Its purpose was to provide a
strategic plan for the ASCS. Among other things, it recommended
that the Australian Army Corps Cadets, the Naval Reserve Cadets and
the Air Training Corps should be re-named as the Australian Army
Cadets, the Australian Naval Cadets and the Australian Air Force
Cadets, respectively.(56)
Amendments to the Air Force Act and the
other statutes listed below reflect these
recommendations.
The Air Force Act establishes the Air
Training Corps. Item 1 of Schedule
2 provides that the Air Training Corps will continue in
existence as the Australian Air Force Cadets. Items
2-7 make consequential changes. Item 8 is
a transitional provision which continues appointments of anyone who
holds an appointment to the Air Training Corps as members of
Australian Air Force Cadets.
Items 9-11 change
references in the Archives Act to reflect the new names of the
cadet services.
Items 12-15, 20 and 25
make consequential and transitional amendments to the Defence Act
as a result of the name changes to the cadet services.
Items 30-32 make
changes to the Freedom of Information Act 1982 that are
consequential to the name changes to the cadet services.
Item 33 provides that
the Naval Reserve Cadets continues in existence as the Australian
Navy Cadets and item 38 continues the appointments
of members of the Naval Reserve Cadets as Australian Navy Cadets.
Items 34-37 make consequential name
changes.
Item 39 makes changes
to the Privacy Act 1988 consequential on the name changes
to the cadet services.
Item 40 makes changes
to the Safety, Rehabilitation and Compensation Act 1988
consequential on the name changes to the cadet services.
Section 80A of the Defence Act
1903 creates an offence of falsely representing oneself to be
a returned soldier, sailor or airman. Section 80B creates an
offence of improper use of service decorations.
Items 16-19 of
Schedule 2 convert penalties in sections 80A and
80B from dollar amounts to penalty units and also increase the
penalties that can be imposed. As a result of the amendments, a
person convicted of a section 80A offence will be liable to a
maximum penalty of 30 penalty units ($3 300) or 6 months
imprisonment, or both. The maximum penalty that can be imposed at
present is $200 or 6 months imprisonment, or both.
The maximum penalties for wearing a
service decoration when not entitled to do so or falsely
representing oneself to be the person on whom a service decoration
has been conferred will be increased from a fine of $200 to a
penalty of 30 penalty units or 6 months imprisonment, or both. The
maximum penalties for defacing or destroying a service decoration
will be increased from a fine of $200 to a penalty of 60 penalty
units or 12 months imprisonment, or both.
Items 16-19 commence 28
days after the date of Royal Assent (clause
2).
Section 124 of the Defence Act
1903 enables the Governor-General to make regulations not
inconsistent with the Defence Act in order to give effect to the
Act and also to prescribe a large range of matters. One of these
matters is:
The appointment, procedures and powers of
courts of inquiry, boards of inquiry and investigating
officers.(57)
These matters are set out in the Defence
(Inquiry) Regulations 1985. As the Explanatory Memorandum points
out, those regulations were amended in 2000, in part to create the
position of inquiry assistant and thus allow greater efficiency in
the board or court inquiry process relating to Defence Force
matters. The powers of an inquiry assistant include assisting an
investigating officer to gather evidence for the purposes of an
inquiry and giving that evidence to the investigating
officer.(58)
As section 124 of the Defence Act
recognises, a regulation cannot be inconsistent with the primary
statute under which it is made. However, there appears to be some
doubt that existing paragraph 124(1)(gc) enables regulations to be
made about inquiry assistants . Item 21 amends
paragraph 124(1)(g) so it is clear that subordinate legislation can
be made on this subject.
Subsection 124(2A) of the Defence Act
enables regulations to be made requiring a witness appearing before
a court of inquiry or board of inquiry to answer questions even if
the answer might incriminate the person.(59)
Items 22-24 extend the power to compel answers to
investigating officers and inquiry assistants.(60)
Investigating officers and inquiry assistants include officers,
warrant officers, the holder of an office above APS Level 4
classification, and certain other non-APS civilians.
The amendments relating to Defence Act
inquiries commence on Royal Assent (clause
2).
The Defence HomeOwner Scheme was
introduced in 1991 and is administered under the Defence Force
(Home Loans Assistance) Act 1990 (the Home Loans Act). It is
designed to assist eligible members and ex-members of the
Australian Defence Force to purchase their own homes by providing a
subsidy on the interest of an $80,000 home loan borrowed from the
approved lender, the National Australia Bank.
(61)
Eligible ex-members who wish to use the
scheme have, in general, two years after their discharge date to
apply for the subsidy entitlement. Exemption from this sunset
clause applies to members who have transferred directly (with a
break of less than 21 days) to the Emergency, Inactive or Active
Reserves, or served in the Gulf War between 2 August 1990 and 9
June 1991. (62)
Item 27 of
Schedule 2 will enable the Secretary of the
Defence Department to make a determination extending the
eligibility of certain incapacitated ex-members(63)
beyond 2 years if the person s failure to apply for an entitlement
within the 2 year period was caused by a compensable disability
that resulted in the person s discharge. The Secretary s refusal to
make such a determination will be reviewable by the Administrative
Appeals Tribunal (item 26).
Amendments to the Home Loans Act
commence on Royal Assent (clause 2).
The purpose of the Defence
Legislation Amendment (Application of Criminal Code) Act 2001,
the Defence Legislation Amendment (Application of Criminal Code)
Regulations 2001 and the Defence Legislation Amendment (Application
of Criminal Code) Regulations 2001 (No. 2) was to harmonise the
offence-creating and related provisions with the general principles
of criminal responsibility as codified in Chapter 2 of the Criminal
Code whilst at the same time ensuring that the offences continue to
operate as intended by Parliament. (64)
Subsection 2(2) of the Defence
Legislation Amendment (Application of Criminal Code) Act 2001
provides that certain parts of that Act commence on the later
of:
(a) the day on which Chapter 2 of the
Criminal Code commences; and
(b) the day after the day on which this Act
receives the Royal Assent.
Subsection 2(2) may have been designed
to ensure that the relevant parts of the Act commenced no earlier
than 15 December 2001 the date on which it was planned that Chapter
2 of the Criminal Code would apply to all pre-existing Commonwealth
offences. However, the day on which Chapter 2 of the Criminal Code
commences could be read in other ways because, for example, Chapter
2 applied to Criminal Code offences and new Commonwealth offences
before 15 December 2001. On such readings, the Defence
Legislation Amendment (Application of Criminal Code) Act 2001
commences on 2 October 2001, the day
after Royal Assent. Item 28 of Schedule
2 repeals and replaces subsection 2(2) to provide that the
Act commenced on 15 December
2001.
Items 1 and 2 of Schedule 3
change the commencement date for the Defence Legislation Amendment
(Application of Criminal Code) Regulations 2001 and the Defence
Legislation Amendment (Application of Criminal Code) Regulations
2001 (No. 2) from the day on which Chapter 2 of the Criminal Code
commences to specify a date of 15 December 2001. The Explanatory
Memorandum says that the purpose of these changes is the remove any
ambiguity. (65) This ambiguity may arise for similar
reasons as those stated in the previous paragraph.
Subclause 3(2) of
the Bill provides regulations are taken
to still be regulations despite being changed by amendments in
primary legislation.
- Joint Standing Committee on Foreign Affairs,
Defence and Trade, Military Justice Procedures in the
Australian Defence Force, 1999, p. 23.
- ibid.
- AD Mitchell & T Voon, Defence of the
indefensible? Reassessing the constitutional validity of military
service tribunals in Australia , Federal Law Review, vol.
27, no. 3, 1999,
pp. 499 525 at p. 501.
- ibid.
- As Mitchell & Voon, ibid, point out
section 61 of the DFDA provides that a defence member or defence
civilian is guilty of an offence if he or she commits what would be
an offence in the Jervis Bay Territory, irrespective of whether
that offence is committed inside or outside the Jervis Bay
Territory. The Jervis Bay Territory is generally subject to ACT
law.
- Section 63, DFDA.
- Joint Standing Committee, op.cit.
- Section 3, DFDA.
- See paragraph 116(2)(a) and subsection
114(2), DFDA.
- See subsection 114(3), DFDA.
- Joint Standing Committee, op.cit., p.
28.
- Section 196 & subsections 134(1) and (4),
DFDA.
- Mitchell & Voon, op.cit, citing S
Thompson, An Officer and a Gentleman , Law Society
Journal, 1982, pp. 306-307 at p. 307.
- Joint Standing Committee, op.cit., p.
28.
- Judge Advocate General, Defence Force
Discipline Act 1982. Report for the period 1 January to 31 December
2001, p. 1.
- Government Response to the Report on
Military Justice Procedures in the Australian Defence Force by the
Joint Standing Committee on Foreign Affairs, Defence and
Trade, March 2001, p. 1.
- Re Tracey; Ex
parte Ryan (1989) 166 CLR 518; Re
Nolan; Ex parte Young (1991) 172 CLR 460;
Re Tyler; Ex parte Foley (1994) 181 CLR
18.
- Joint Standing Committee, op. cit.
- In 1997, the Joint Standing Committee on
Foreign Affairs, Defence and Trade commenced an inquiry into
military justice procedures in the Australian Defence Force. The
Committee ceased when Parliament was prorogued for the 1998 General
Election, re-convened early in 1999 and reported in June that year.
The Joint Committee also examined the system of military inquiry
operating in the Australian Defence Force. The military inquiry
system had been the subject of public scrutiny following cases
involving both the deaths of service personnel and complaints
against ADF members. The Committee s report, Military Justice
Procedures in the Australian Defence Force was presented in
June 1999.
- Recommendations that did not find favour
included the proposal that consideration be given to establishing
an independent Director of Military Prosecutions on a tri-service
basis. The Government Response to the Joint Standing Committee
report stated, The Australian Defence Force was of the view that
the recommendations that were agreed would significantly improve
institutional independence with respect to prosecution in Courts
Martial and Defence Force Magistrate trials without creating the
position of an independent Director of Military Prosecutions. The
[ADF] held serious reservations about the practicality and need for
such an appointment under present circumstances.
- Joint Standing Committee, op. cit., p.
203.
- ibid, p. 121.
- Judge Advocate General, Defence Force
Discipline Act 1982. Report for the period 1 January to 31 December
1997, p. 5.
- Judge Advocate General, Defence Force
Discipline Act 1982. Report for the period 1 January to 31 December
2001, p. 11.
- Judge Advocate General, Defence Force
Discipline Act 1982. Report for the period 1 January to 31 December
1998, p. 5.
- Joint Standing Committee, op. cit., p.
121.
- ibid, p. 203.
- Judge Advocate General, Defence Force
Discipline Act 1982. Report for the period 1 January to 31 December
1999, p. 4.
- ibid.
- ibid, p. 3.
- Judge Advocate General, Defence Force
Discipline Act 1982. Report for the period 1 January to 31 December
2000, p. 4.
- Joint Standing Committee, op. cit., p. 136.
Emphasis in the original.
- Government Response to the Report on
Military Justice Procedures in the Australian Defence Force by the
Joint Standing Committee on Foreign Affairs, Defence and
Trade, March 2001, p. 1. See response to recommendation
46.
- New subsections 35, 36A and
36B, respectively.
- The caution involves the person being told
that they need not answer questions but that anything said or done
by them may be used in evidence.
- See sections 3 & 102, DFDA.
- Subsection 103(1), DFDA.
- Subsection 103(2), DFDA.
- See subsections 103(4) & (6), DFDA.
- Explanatory Memorandum, p. 4.
- Judge Advocate General, Defence Force
Discipline Act 1982. Report for the Period 1 January to 31
December 2001, p. 1.
- Section 152, DFDA.
- Subsection 13(1), DFDA.
- Joint Standing Committee, op. cit., p.
32.
- ibid, p. 29.
- Section 169A, DFDA.
- Section 169F, DFDA.
- Section 169C, DFDA.
- The expression, officer cadet , is defined to
mean a person holding the rank of midshipman in the Navy or officer
cadet in the Army or Air Force.
- (1989) 166 CLR 518.
- A unanimous High Court rejected the section
80 (trial by jury) argument. Mason CJ, Wilson, Brennan, Dawson
& Toohey JJ rejected the separation of powers argument on the
basis that although the Defence Force Magistrate was exercising
judicial power, he was not exercising the judicial power of the
Commonwealth because section 51(vi) of the Constitution enabled
laws to be made for a military disciplinary code outside Chapter
III and to impose a duty to act judicially on those administering
that code.
- (1989) 166 CLR 518 at 545 per Mason CJ,
Wilson & Dawson JJ.
- (1989) 166 CLR 518 at 755 per Brennan &
Toohey JJ quoted in S Gaegler, Gnawing at a file: An analysis of Re
Tracey: Ex parte Ryan , University of Western Australia Law
Review, 20(1), June 1990, pp. 47 60 at p. 57.
- Explanatory Memorandum, p. 8.
- John Topley et al. Cadets: The Future.
Review. A Strategy for the Australian Services Cadet Scheme,
2000.
- ibid, p. 45.
- Paragraph 124(1)(gc), Defence Act.
- Defence (Inquiry) Amendment Regulations 2000
(No. 1) No. 327, Explanatory Statement.
- Within limits for instance, an answer cannot
be compelled if the witness is a defendant in live criminal
proceedings. Further, compelled evidence is not admissible in
criminal or civil proceedings against the witness, unless he or she
is being prosecuted for false testimony. See subsections 124(2B)
& (2C), Defence Act.
- The protections that apply to witnesses
before courts of inquiry and boards of inquiry also apply.
- http://www.dha.gov.au
- http://www.dha.gov.au
- There are two classes of incapacitated
ex-member under the Home Loans Act. First, there are incapacitated
ex-members who on or after
15 May 1991, are discharged from the Defence Force because of a
compensable disability. Second, there are incapacitated ex-members
who were discharged before this date. This second class of
ex-member stopped being eligible to apply for Home Loans Act
assistance on 1 December
1994. The amendments made by
item 27 affect the first category of ex-member,
not the second category.
- See, for example, Defence Legislation
Amendment (Application of Criminal Code) Regulations 2001 (No. 1),
Explanatory Statement,
p. 1.
- Explanatory Memorandum, p. 12.
Jennifer Norberry
23 June 2003
Bills Digest Service
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