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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MILITARY COURT OF AUSTRALIA BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Nicola Roxon MP)
MILITARY COURT OF AUSTRALIA BILL 2012
GENERAL OUTLINE
1. The Bill establishes the Military Court of Australia (Military Court) under Chapter III
of the Constitution and provides for, among other things, the structure, jurisdiction, practice
and procedure of the court. Amendments of the Defence Force Discipline Act 1982 and a
number of other Acts that are consequential to the establishment of the Military Court are
included in the Military Court of Australia (Transitional Provisions and Consequential
Amendments) Bill 2012.
2. The Military Court established by this Bill will assist in maintaining and reinforcing
discipline, thereby enhancing operational effectiveness in the ADF. It will permanently
replace the interim measures in the Military Justice (Interim Measures) Act (No. 1) 2009 and
Military Justice (Interim Measures) Act (No.2) 2009, which re-established the pre-2007
system of courts martial and Defence Force magistrates. Those interim arrangements were
put in place following the decision of the High Court of Australia in
Lane v Morrison (2009) 239 CLR 230, which unanimously found that the provisions of the
Defence Force Discipline Act 1982 that created the Australian Military Court were invalid.
3. The Military Court will be a superior court of record comprising judicial officers who,
by reason of their experience or training, have an understanding of the nature of service in the
ADF. The Bill allows judicial officers in the Military Court to hold dual commissions in
other federal courts on the same terms and conditions and, consistent with the Constitution,
provides tenure for judicial officers to the age of 70. The Bill requires appointments to the
Military Court to be made in consultation with the Minister for Defence.
4. Like other federal courts, the Chief Justice of the Military Court will have direct
responsibility for the administration of the Court. The Bill provides for the Registrar of the
Federal Court to assist the Chief Justice in the management of the administrative affairs of the
Military Court.
5. The responsibility of the Registrar of the Federal Court to assist the Chief Justice in
management of the administrative affairs of the Military Court makes clear the single
administration arrangements which will operate. It is expected that the Military Court will
use the existing infrastructure of the Federal Court of Australia for administration.
6. The Bill also allows the Chief Justice to make arrangements with the Chief of the
Defence Force for members of the ADF to provide administrative assistance and a liaison role
to the Military Court. The presence of these ADF members will emphasise the military
justice focus of the Military Court.
7. The Bill provides mechanisms for the Chief Justice to make arrangements with other
courts, agencies and organisations to provide office facilities and administrative services.
8. While the Military Court is expected to hear matters primarily in Australia, the Bill
will allow the Military Court to determine whether it is necessary to try a matter overseas. In
considering whether it should sit overseas, the Bill will require the Military Court to consider
(among other things) whether doing so is in the interests of justice. If it is necessary but not
possible for the Military Court to sit overseas, a court martial or Defence Force magistrate
will provide a deployable residual system of military justice.
9. The Bill confers original jurisdiction on the Military Court to try serious service
offences under the Defence Force Discipline Act 1982. Less serious service offences, which
comprise the vast majority of service offences, will continue to be tried by summary
authorities. The Military Court will also have jurisdiction to try less serious service offences
which would otherwise be heard by a summary authority, on the election of the accused
person or on referral by the summary authority, and to hear appeals from a court martial or
Defence Force magistrate sitting overseas where it is necessary but not possible for the
Military Court to deploy.
10. The Bill provides that all charges in the Military Court will be tried otherwise than on
indictment and therefore without a jury. 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. A jury in a
Chapter III court could not be similarly restricted to Defence members and a civilian would
not necessarily be familiar with the military context of service offences. 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.
11. The original jurisdiction of the Military Court will be exercised by a single Federal
Magistrate in the General Division, except where the proceeding relates to either a serious
service offence prescribed in Schedule 1 to the Bill, or an appeal from a court martial or
Defence Force magistrate or, alternatively, the Chief Justice directs otherwise. A single
Judge in the Appellate and Superior Division will try charges of serious service offences
prescribed in Schedule 1 and charges which the Chief Justice has directed be heard in the
Division. Appeals from a court martial or Defence Force magistrate will be heard by a Full
Court in the Appellate and Superior Division.
12. Serious service offences prescribed in Schedule 1 generally include:
(i) offences essential to maintaining discipline and morale in the ADF, such as offences
relating to operations against the enemy, mutiny and desertion
(ii) offences so serious in nature that they require the Commonwealth Director of Public
Prosecution's consent for prosecution in the military justice system, for example, murder
and sexual assault, and
(iii) serious offences which fall within the higher range of maximum punishments.
13. The Bill sets out procedures for instituting proceedings in the original jurisdiction of
the Military Court as well as procedures for the conduct of such proceedings during the pre-
trial and trial stages. These are modelled on proceedings before a court martial or Defence
Force Magistrate under the Defence Force Discipline Act 1982 and procedures developed for
the cartel jurisdiction of the Federal Court of Australia. It includes a system of pre-trial
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hearings and disclosure obligations on the parties, to reduce the length of trials by ensuring
that any issues that are not in dispute are identified at an early stage. This will narrow the
range of issues that will have to be dealt with at trial so that the Military Court can
concentrate on issues genuinely in dispute and deliver military justice outcomes in a timely
manner.
14. The Bill also confers jurisdiction on the Military Court to hear appeals from
judgments of the Military Court at first instance. The appellate jurisdiction of the Military
Court will be exercised by a Full Court or a single Judge in the Appellate and Superior
Division. The Bill sets out procedures for making appeals in the Military Court and for the
conduct of proceedings in an appeal, as well as the Military Court's powers on appeal. The
Bill also allows for appeals to the High Court in restricted circumstances. The appeal
mechanisms in the Bill will benefit members of the ADF through enhanced consistency and
certainty in decision-making under authoritative precedents on defence force disciplinary
matters.
15. The basic structure of the Military Court, and the kinds of charges to be heard in each
of its Divisions, is represented in Diagram 1 below.
Diagram 1
Chief Justice
Appeals and Schedule 1
Judges
Appellate and Superior serious service offences
Division
Serious service offences and
Federal less serious service offences
General Division
Magistrates on election
16. The Bill will give the Military Court powers to make orders for the custody and bail
of accused persons before the Military Court. These are similar to the powers available to the
Federal Court of Australia in the exercise of its criminal cartel jurisdiction. They include the
power to order bail subject to specific conditions, the power to vary or revoke bail orders, and
the power to make orders for the forfeiture of securities when an accused person fails to
comply with a bail undertaking.
17. The Bill also sets out the general practices and procedures of the Military Court.
Many of these provisions are consistent with the practices and procedures of the Federal
Court of Australia. This includes rules on evidence and the use of video and audio links. The
Military Court, like other federal courts, will have the power to make court rules to prescribe
the practice and procedure to be followed in the Court.
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FINANCIAL IMPACT
18. Establishing the Military Court will have 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.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
19. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
20. The purpose of Australia's military justice system is to support command in
reinforcing discipline and enhancing operational effectiveness. Military discipline which
supports the authority and effectiveness of commanders is of vital importance in the operation
of the ADF.
21. The Bill establishes the Military Court under Chapter III of the Constitution. The new
Military Court will permanently replace the interim measures in the Military Justice (Interim
Measures) Act (No. 1) 2009 and Military Justice (Interim Measures) Act (No.2) 2009.
22. The Bill provides for the structure, jurisdiction, practice and procedure of the Court.
The Bill confers original jurisdiction on the Military Court to try serious service offences
under the Defence Force Discipline Act 1982. The Military Court will be a superior court of
record comprising of judicial officers who, by reason of their experience or training, have an
understanding of the nature of service in the ADF. The Court will have two Divisions - the
General Division and Appellate and Superior Division.
23. This Bill operates in conjunction with the Military Court of Australia (Transitional
Provisions and Consequential Amendments) Bill 2012, which makes amendments to the
Defence Force Discipline Act 1982 and other Acts consequential to establishment of the
Military Court.
Human Rights Implications
24. The Military Court of Australia Bill 2012 engages the following rights:
· the right to a fair trial under Article 14 of the International Covenant on Civil and
Political Rights (`ICCPR'). Although the trial of service offences are not criminal
proceedings as such, this Statement includes assessment as if requirements under
Article 14 of the ICCPR relating to criminal proceedings have been engaged. It
includes consideration of access for justice for persons with disabilities under Article
13 of the Convention on the Rights of Persons with Disabilities (`CRPD')
· freedom from arbitrary detention under Article 9 of the ICCPR
· the right to humane treatment in detention under Article 10 of the ICCPR, and
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· the right to privacy under Article 17 of the ICCPR.
Right to a fair trial
Fair and public hearing by a competent, independent and impartial tribunal
25. Article 14(1) of the ICCPR provides for the right to a fair and public hearing by a
competent, independent and impartial tribunal in the determination of any criminal charge
against a person, or of a person's rights and obligations in a suit at law.
26. The DFDA creates service offences for the purpose of maintaining discipline in the
ADF. The DFDA complements, and does not replace, Australian criminal law. However,
this right is engaged because serious service offences will be an offence against the law of the
Commonwealth and conviction may attract punishments including fines, imprisonment or
military detention.
27. The Bill advances the protection of the right to a fair trial by establishing a permanent
Court in accordance with Chapter III of the Constitution to hear charges of serious service
offences.
Equality of arms
28. The right to a fair trial is aimed at ensuring the proper administration of justice, by
upholding, among other things, the right to a fair and public hearing. The requirement of a
fair hearing relates to the principle of equality of arms.
29. The Bill provides for fair processes for determination of service offences consistent
with the civilian criminal law system. It sets out the procedures for instituting proceedings
and their conduct during the pre-trial and trial stages. The Bill includes a system of pre-trial
procedures, including hearings and disclosure of the case for the prosecution. An ADF
member who is subject to proceedings in the Military Court will know the charge they face
and the evidence on which the charge is based.
30. The Bill gives the parties reasonable opportunities to present their case. The Evidence
Act 1995 will apply to proceedings in the Military Court and covers admission of evidence in
proceedings. Accused persons will be entitled to legal representation at either the cost of the
accused or be provided with a legal officer through the Director of Defence Counsel Services.
Right to a public hearing
31. The Bill requires the Military Court to generally exercise its jurisdiction in open court.
This provides for visibility of the operation of the military justice system for service
personnel and the public more generally, and facilitates public scrutiny of proceedings.
Consistent with current Australian criminal procedure, interim and pre-trial matters, and
matters prescribed by the Military Court Rules, may be dealt with by a Judge or Federal
Magistrate of the Military Court in Chambers.
32. Article 14(1) of the ICCPR provides that the press and the public may be excluded
from all or part of a trial for reasons of morals, public order, national security, the privacy of
the parties, or when in the opinion of the court publicity would prejudice the interests of
justice.
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33. Similar to other federal courts, the Military Court will have the power to exclude the
public (or specified persons) where the Military Court is satisfied that their presence would be
contrary to the interests of justice or would prejudice national security. The Military Court
will also have power to order that whole or part of a record of proceedings not be published
on specified grounds, and outlines procedures for this to occur. Any such determination by
the Military Court to conduct its proceedings in private or make orders for non-publication of
proceedings will occur based on the individual circumstances of each case.
34. The Military Court will provide reasons for judgment. The Bill requires a record of
proceedings to be kept by the Military Court, and enables access to copies of records of
proceedings by parties.
Competent, independent and impartial tribunal
35. The Bill provides the necessary independence and constitutional protections for an
impartial judiciary in the Military Court. It provides that persons currently serving in the
ADF would not be eligible for appointment as a Judge or Federal Magistrate of the Military
Court.
36. As a Chapter III Court, the Military Court will be independent from the military chain
of command. Consistent with other federal courts, the Chief Justice of the Military Court will
have responsibility for the administration of the Court.
37. The Military Court will be able to enforce its orders. The Bill includes offences by
witnesses before the Military Court. The Court has the same powers as the High Court to
punish contempt of its power and authority.
Presumption of Innocence
38. Article 14(2) of the ICCPR provides every individual charged with a criminal offence
the right to be presumed innocent until proved guilty according to law.
39. Notwithstanding that service offences are not considered criminal offences, the
criminal standard of proof for service offences in the Military Court will apply to require
charges to be proved beyond reasonable doubt.
Minimum guarantees in criminal proceedings
Article 14(3) of the ICCPR provides for minimum guarantees in criminal proceedings.
40. Notwithstanding that service offences are not criminal offences, the Military Court
will operate consistently with the minimum guarantees outlined in Article 14(3). Compliance
with Articles 14.3(b), (c), (e), (f) and (g) are matters that federal courts have held to be
fundamental to justice in civilian courts, and are implicit in systems provided for under the
Bill. The DFDA and its subordinate legislation provide for an accused person to be provided
with a charge and particulars in writing. Case law within Australia has imported a
requirement for the accused to be notified of the charge and its particulars in an understood
language.
41. All qualified legal practitioners would have the right to appear in the Military Court
representing the accused. Where an accused was impecunious or chooses not to retain private
legal representation, the accused would receive legal assistance through the Director of
Defence Counsel Services (see amendments in the Military Court of Australia (Transitional
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Provisions and Consequential Amendments) Bill). The Evidence Act 1995 will apply to
proceedings in the Military Court and includes the privilege against self-incrimination.
Right of review
42. Article 14(5) of the ICCPR provides that everyone convicted of a crime shall have the
right to his conviction and sentence being reviewed by a higher tribunal according to law.
43. Notwithstanding that service offences are not criminal offences, the Bill provides for
avenues for appeal that are consistent with federal criminal appeals. It confers jurisdiction on
the Appellate and Superior Division of the Military Court to hear appeals from judgments of
the General Division of the Military Court, including decisions on sentence, and sets out
processes for the conduct of such proceedings and the Military Court's powers on appeal.
Appeals from a judgment of the Full Court of the Military Court will lie to the High Court
with special leave from the High Court.
Punishments following conviction
44. The Military Court established by the Bill will be able to impose punishments of
imprisonment or detention on persons convicted of a service offence.
45. Consistent with Article 15 of the ICCPR, the Bill prevents the Military Court from
imposing a punishment on a convicted person that exceeds the maximum penalty specified in
the provision creating the service offence under the DFDA for which they were convicted.
46. Article 13 of the CPRD requires State parties to ensure effective access to justice for
persons with disabilities on an equal basis with others, including through the provision of
procedural and age-appropriate accommodations, in order to facilitate their effective role as
direct and indirect participants, including as witnesses, in all legal proceedings, including at
investigative and other preliminary stages.
47. The Bill will allow the Military Court to make orders where it finds an accused person
unfit to be tried in a trial of a charge of a service offence or it acquits an accused person of a
service offence because the person was suffering mental impairment at the time of engaging
in the conduct constituting the service offence. The orders that the Military Court may make
are to either:
· release the person, or release the person subject to certain conditions (such as that a
person attend a person or place for treatment), or
· make any other order it considers necessary having regard to the best interests of the
accused person, the safety of any other person to whom the order relates and the
safety of the community generally.
48. The Bill requires that any such orders be for a specified period not exceeding three
years. In making an order, the Military Court will have power to order examination of expert
witnesses. For example, a psychiatrist may be called to give evidence relating to the best
interests of an accused person.
49. An order should not be made for imprisonment of a person under these provisions.
Appropriate arrangements would be made for a person to be taken to a mental institution
where necessary. The Bill gives power to the Military Court to vary or set aside an order
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made by the Military Court on application of either the person to whom the order relates or
the DMP.
Freedom from arbitrary detention
50. Article 9(1) of the ICCPR provides that everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his or her liberty except on such grounds and in accordance with such procedure
as are established by law.
51. The Bill will give the Military Court powers to make orders for the custody and bail
of accused persons before the Military Court. Powers include the power to order bail subject
to specific conditions, the power to vary or revoke bail orders, and the power to make orders
for the forfeiture of securities when an accused person fails to comply with a bail
undertaking.
52. The provisions are consistent with provisions in federal and State and Territory
criminal law. Bail can be reconsidered during the course of proceedings.
Right to humane treatment in detention
53. Article 10 of the ICCPR provides the right to humane treatment for individuals
deprived of their liberty. Article 2 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment also places a burden on each State to
prevent acts of torture.
54. The Military Court may only impose punishments specified in the Bill. Persons
sentenced to detention will be treated humanely in accordance with the existing provisions of
the DFDA and the Defence Force Discipline Regulations 1985.
55. Imprisonment would be in a civilian prison under the same conditions as any federal
offender.
56. The Military Court may also impose a punishment of detention in a military detention
facility. Military detention is designed to deter and punish but primarily to be corrective and
is not awarded where discharge from the ADF is intended. Military detention is provided in
accordance with Part XA of the DFDA. Under the Defence Force Discipline Regulations
1985, detention facilities must be approved by service chiefs on an annual basis. Inspections
occur regularly for facilities. The Defence Force Discipline Regulations 1985 include access
to medical assistance.
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Right to privacy
57. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an
individual's privacy, family, home or correspondence, and protects a person's honour and
reputation from unlawful attacks. The right to privacy may be subject to permissible
limitations, provided that those limitations are aimed at a legitimate objective and are
reasonable, necessary and proportionate to that objective.
58. The Bill requires the Military Court to exercise its jurisdiction in open court. The
open court process is a key component of the right to a fair trial and aims to demonstrate that
proceedings have been conducted fairly and that accused persons have been dealt with justly.
59. The legitimate objective of ensuring an open court process may limit the right to
privacy of individuals who are involved in proceedings before the Military Court. However,
the limitations are reasonable, necessary and proportionate.
60. The Court will have power to make protective orders regarding witnesses similar to
the Federal Court of Australia Act 1976. Protection of the privacy of vulnerable witnesses is
provided consistent with the Evidence Act 1995 and, in relevant circumstances, the Evidence
(Miscellaneous Provisions) Act 1991 (ACT).
61. The Military Court will have similar protections for personal information as other
federal courts.
Conclusion
62. The Bill is compatible with human rights because it advances the protection of human
rights, in particular for the right to a fair trial and freedom from arbitrary detention. It also
ensures protection of the right to privacy. To the extent that the Bill may also limit human
rights such as aspects of the right to privacy, those limitations are reasonable, necessary and
proportionate.
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NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short title
1. This clause provides for the Bill to be cited as the Military Court of Australia Act
2012.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table. Item 1 in the table provides that sections 1 and 2 which concern the formal aspects
of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence
on the day on which the Bill receives Royal Assent.
3. Item 2 in the table provides that sections 3 to 192, which concern the structure,
jurisdiction, practice and procedure of the Military Court, commence on a single day to be
fixed by Proclamation. The day to be fixed by Proclamation must not be before the day the
Military Court of Australia (Transitional Provisions and Consequential Amendments) Act
2012 receives royal assent. This is because the amendments contained in that Act are
necessary for the effective commencement of the operation of the Military Court. Item 2 also
provides that if sections 3 to 192 do not commence within the period of 6 months beginning
on the day this Bill receives Royal Assent, they will commence on the day after the end of
that period.
4. The same commencement date also applies to Schedule 1 to the Bill (item 3). This
will allow time for amendments to be made to Schedule 1 to the Financial Management and
Accountability Regulations 1997 to include the Military Court as a prescribed agency for the
purposes of the Financial Management and Accountability Act 1997.
5. Subclause (3) provides that proceedings are not to be instituted in the Military Court
before the commencement of Part 1 of Schedule 1 of the Military Court of Australia
(Transitional Provisions and Consequential Amendments) Act 2012.
6. Part 1 of Schedule 1 of the Military Court of Australia (Transitional Provisions and
Consequential Amendments) Bill 2012 contains amendments to the Defence Force Discipline
Act 1982 consequential to establishment of the Military Court. Coinciding commencement
with this Act will ensure effective operation of the system prior to institution of proceedings
in the Military Court.
7. A period of 10 months is provided to allow sufficient time for the appointment of
judicial officers to the Military Court, for the implementation of administrative arrangements
for proceedings in the Military Court (including the establishment of Military Court Rules)
and to allow the Department of Defence to educate military personnel about the role of the
Military Court in the military justice system and their rights in relation to the new Court.
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Clause 3 - Definitions
8. This clause defines various terms used in the Bill. To facilitate the exercise of
jurisdiction under the Defence Force Discipline Act 1982, clause 3 defines a number of terms
in the same way as they are defined under that Act.
9. Registrar is defined in this clause to mean the Registrar of the Federal Court appointed
under section 18C of the Federal Court of Australia Act 1976. The Registrar has powers and
functions under Division 4 of Part 3 of the Bill.
Clause 4 - Crown to be bound
10. This clause provides that the Crown is bound by the Bill in each of its capacities.
However, the Crown is not liable to be prosecuted for an offence under the Bill.
Clause 5 - Operation of this Act
11. This clause provides that the Military Court of Australia 2012 Bill will apply both
within and outside Australia. This supports the authority of the court to sit at a place outside
Australia or in any of its external territories. The application of the Bill outside Australia will
operate in circumstances where the Military Court determines that it is necessary and possible
for it to sit at a place outside Australia, in accordance with clause 51.
Clause 6 - Application of Commonwealth laws to proceedings determined outside
Australia
12. This clause provides that Commonwealth laws which will apply to Military Court
proceedings have effect outside of Australia for when the Military Court sits overseas.
Examples of Commonwealth laws that apply to Military Court proceedings include (but are
not limited to) the Defence Force Discipline Act 1982, the Evidence Act 1995, the Crimes Act
1914 and the Criminal Code Act 1995. Certain parts of the Evidence (Miscellaneous
Provisions) Act 1991 of the Australian Capital Territory will also apply to proceedings in the
Military Court.
13. Clause 6 ensures the extraterritorial operation of some Acts (or provisions thereof)
that the Bill expressly states are applicable to Military Court proceedings, for example certain
provisions of the Evidence (Miscellaneous Provisions) Act 1991(ACT) (clause 172). Some
Acts already apply beyond Australia (for example, see section 3A of the Crimes Act 1914
and section 9 of the Defence Force Discipline Act 1982).
14. This clause is intended to evince a clear and unambiguous intention that any other
Commonwealth Acts which apply to Military Court proceedings in Australia but would not
apply overseas by virtue of clause 5 or by a provision in the Act itself, have effect outside of
Australia for when the Military Court sits overseas.
Clause 7 - Geographical jurisdiction for offences
15. This clause provides that section 15.1 of the Criminal Code (extended geographical
jurisdiction--category A) applies to an offence against the Bill. This means that, where the
conduct constituting an alleged offence against this Bill occurs wholly outside Australia, a
person does not commit the offence unless the person is an Australian citizen at the time of
the alleged offence.
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16. This may be relevant where the Military Court determines that it is appropriate for it
to sit at a place outside Australia, in accordance with clause 51. Relevant offences against
this Bill occurring outside Australia may include offences by witnesses failing to appear
before the Military Court as required by a subpoena (clause 169). However, this offence will
not apply to persons who are not Australian citizens at the time of the alleged offence.
Exempting foreign nationals from offences under the Bill will assist with the making of
arrangements between Australia and the host nation for the Military Court to sit overseas.
Part 2 - Military Court of Australia
17. Part 2 of the Bill creates the Military Court under Chapter III of the Constitution. It
provides for the constitution of the Military Court, including provisions for the appointment
of Judges and Federal Magistrates to the Military Court and their assignment to the Divisions
of the Military Court. This Part is generally consistent with Part II of the Federal Court of
Australia Act 1976 and Schedule 1 to the Federal Magistrates Act 1999.
Division 1 - Introduction
Clause 8 - Guide to this Part
18. This clause sets out a guide to Part 2 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
Division 2 - Creation of Military Court etc.
Clause 9 - Creation of Military Court etc.
19. This clause creates the Military Court as a superior court of record. The Military
Court consists of a Chief Justice, other Judges and Federal Magistrates.
Clause 10 - Divisions of Military Court
20. This clause provides that the Military Court has two Divisions: the Appellate and
Superior Division, and the General Division. All proceedings in the Military Court must be
instituted, heard and determined in either the Appellate and Superior Division, or the General
Division.
21. Judges, including the Chief Justice, of the Military Court will be assigned to the
Appellate and Superior Division while Federal Magistrates of the Military Court will be
assigned to the General Division (clause 13). Judges and Federal Magistrates may exercise
the powers of the Military Court only in their respective Divisions (clause 54). Clause 54
specifies that certain matters are to be dealt with in the General Division and the Appellate
and Superior Division respectively, in the exercise of the Military Court's original
jurisdiction. The Military Court's appellate jurisdiction will be exercised in the Appellate and
Superior Division (clause 98).
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Division 3 - Judges and Federal Magistrates
Clause 11 - Appointment
22. Subclauses (1) and (2) provide for the appointment of Judges and Federal Magistrates
to the Military Court by the Governor-General by commission. A Federal Magistrate may be
appointed on a part-time basis (subclause (7)). This is consistent with clause 1 of Schedule 1
to the Federal Magistrates Act 1999, which allows for the appointment of Federal
Magistrates on a part-time basis and is intended to allow flexibility in managing the workload
of Federal Magistrates.
23. Paragraph (3)(a) of the Bill sets out criteria for judicial appointments to the Military
Court consistent with appointments to other federal courts. To be eligible for appointment as
a Judge or Federal Magistrate of the Military Court, a person must be or have been a judge or
federal magistrate of another federal court or a judge or magistrate of a State or Territory
court, or have been enrolled as a legal practitioner of the High Court or of the Supreme Court
of a State or Territory for not less than 5 years.
24. Paragraph (3)(b) establishes criteria specific to judicial appointment to the Military
Court, consistent with other specialist courts, such as the Family Court of Australia. This
paragraph provides that a person must not be appointed as a Judge or Federal Magistrate of
the Military Court unless, by reason of experience or training, the person understands the
nature of service in the Australian Defence Force. 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.
25. A specific criterion for appointment to the Military Court is essential to ensuring that
the Military Court is recognised by commanders, service personnel and the public as a
specialist body capable of understanding the service context of offences as well as the unique
nature of military service. Experience or training which leads to an understanding of the
nature of service in the Australian Defence Force will ensure a proper appreciation of the
professional ethos and culture of the ADF within which the impact of offending can have a
different effect to that of equivalent offending in a civilian context.
26. The wording of this clause mirrors the Family Court of Australia appointment criteria
in the Family Law Act 1975. In this way, the clause identifies possession of qualifications or
experience directly relevant to the exercise of jurisdiction in a particular area of law, but does
not require ADF service for appointment to the Military Court. This criterion is intended to
require more than a passive observation, a general interest or familiarity, or mere study of the
military.
27. Paragraph (3)(b) further provides that a person must not be appointed as a Judge or
Federal Magistrate of the Military Court unless the Defence Minister has been consulted in
relation to the appointment.
28. The appointment criterion is designed to enhance confidence in the Court and its
appointees within the ADF.
29. Subclause (4) ensures the independence and impartiality of the Military Court by
providing that persons currently serving in the ADF would not be eligible for appointment as
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a Judge or Federal Magistrate of the Military Court. Additionally, once appointed, judicial
officers will no longer be eligible for recruitment into the ADF, which is provided for by
amendment to the Defence Act 1903 in the Military Court of Australia (Transitional
Provisions and Consequential Amendments) Bill.
30. In accordance with section 72 of the Constitution, and consistent with all four other
federal courts, subclauses (5) and (6) provide that a person is not eligible for appointment to
the Military Court if he or she has attained the age of 70, but judicial officers appointed to the
Military Court will have tenure to the age of 70. This provides the necessary independence
and constitutional protections for an impartial judiciary in the Military Court.
Clause 12 - Judges and Federal Magistrates may hold office of another court
31. This clause 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.
Clause 13 - Assignment to Divisions
32. This clause assigns the judicial officers of the Military Court to particular Divisions
mentioned in clause 10. It provides that Judges of the Military Court (including the Chief
Justice) are assigned to the Appellate and Superior Division, and Federal Magistrates of the
Military Court are assigned to the General Division. This reflects the intention for certain
matters to be heard in each Division, as set out in Parts 5 (Original jurisdiction) and 6
(Appellate jurisdiction).
Clause 14 - Assignment to particular locations
33. Subclause (1) provides that Judges and Federal Magistrates of the Military Court will
be assigned to sit at a particular location in their commission of assignment. Subclause (2)
provides that, while a Judge or Federal Magistrate may sit at another location on a temporary
basis, he or she must not sit or cannot be required to sit at another location on a permanent
basis unless the Judge or Federal Magistrate, the Chief Justice and the Attorney-General
consent.
34. Subclause (3) provides that the Chief Justice has the same protection and immunity
when deciding whether to give this consent as if he or she were making that decision as a
member of the Military Court. This means that judicial immunity applies to the Chief Justice
in making this decision.
35. Subclause (4) provides that the Federal Court of Australia does not have jurisdiction
with respect to a matter relating to the consent of the Attorney-General or the Chief Justice.
This is similar to subsection 12(6B) of the Federal Magistrates Act 1999 in respect of powers
of the Chief Federal Magistrate to assign a Federal Magistrate to a particular location or
registry.
Clause 15 - Resignation
36. Consistent with section 72 of the Constitution, this clause provides that a Judge or
Federal Magistrate may tender his or her resignation from the Military Court in writing to the
Governor-General. Subclause (2) provides that the resignation takes effect on the day on
which it is received by the Governor-General or a later day if specified in the resignation.
14
Clause 16 - Removal from office
37. This clause provides that a Judge or Federal Magistrate of the Military Court may be
removed from office only by the Governor-General, on an address from both Houses of the
Parliament in the same session, on the ground of proved misbehaviour or incapacity. This is
also consistent with section 72 of the Constitution.
Clause 17 - Style
38. This clause provides that a Judge or former Judge of the Military Court is entitled to
be styled `The Honourable', and a Federal Magistrate of the Military Court is to be styled
`Federal Magistrate (name)' or `(name) FM'. This is consistent with section 6 of the Federal
Court of Australia Act 1976 and clause 2 of Schedule 1 to the Federal Magistrates Act 1999.
Clause 18 - Seniority
39. This clause provides that the Chief Justice of the Military Court is senior to all other
Judges and to the Federal Magistrates of the Military Court, while the other Judges have
seniority according to the dates on which their commissions took effect or the precedence
assigned to them by their commissions. This is consistent with section 8 of the Federal Court
of Australia Act 1976.
Clause 19 - Acting Chief Justice
40. This clause provides that, whenever the Chief Justice of the Military Court is absent
from duty or there is a vacancy in the office of Chief Justice, the next senior Judge who is
available and willing to do so, is to perform the duties and may exercise the powers of the
Chief Justice. In doing so, that Judge is to be called the Acting Chief Justice of the Military
Court.
41. This is generally consistent with section 7 of the Federal Court of Australia Act 1976.
However, unlike that provision, this clause does not provide for an Acting Chief Justice
whenever the Chief Justice is absent from Australia. This is because the Chief Justice of the
Military Court may be sitting in a place outside Australia in accordance with clause 51.
Clause 20 - Remuneration etc.
42. Subclause (1) provides that Judges and Federal Magistrates of the Military Court are
to be paid such remuneration (within the meaning of Part II of the Remuneration Tribunal Act
1973) as is determined by the Remuneration Tribunal. This is subject to the Remuneration
Tribunal Act 1973 (subclause (2)).
43. Subclause (3) reflects subsection 9(2) of the Federal Court of Australia Act 1976. It
ensures that the salary and annual allowances of Judges of the Appellate and Superior
Division accrue daily and are payable monthly.
44. Subclause (4) provides that a Federal Magistrate is the holder of an office of Justice of
a federal court, for the purposes of paragraph 7(5B)(a) of the Remuneration Tribunal Act
1973.
45. These provisions are consistent with clause 5 of Schedule 1 to the Federal
Magistrates Act 1999. While different provisions are established under section 9 of the
15
Federal Court of Australia Act 1976, the enactment of that section pre-dates the creation of
the Remuneration Tribunal. These provisions are implemented so that remuneration for
Judges of the Federal Court is determined under the Remuneration Tribunal Act 1973. This
clause operates so that remuneration for Judges and Federal Magistrates of the Military Court
is to be set in the same manner as the remuneration of Judges of the Federal Court and
Federal Magistrates of the Federal Magistrates Court.
46. Subclause (5) provides that Federal Magistrates are to be treated as Justices of a court
of record for the purpose of determining their remuneration and other terms and conditions.
This is consistent with the position of Federal Magistrates in the Federal Magistrates Court,
which is a court of record.
47. In accordance with section 72 of the Constitution, subclause (6) provides that the
remuneration of a Judge or Federal Magistrate of the Military Court is not to be diminished
during his or her continuance in office.
Clause 21 - Oath or affirmation and office
48. This clause provides that a Judge or a Federal Magistrate of the Military Court must
take an oath or affirmation of allegiance before proceeding to discharge the duties of his or
her office, and sets out the form of that oath or affirmation. This is consistent with section 11
of the Federal Court of Australia Act 1976.
Subdivision B - Other terms and conditions of Federal Magistrates
Clause 22 - Other terms and conditions of Federal Magistrates
49. This clause explains that this subdivision sets out other terms and conditions that
apply in relation to Federal Magistrates.
Clause 23 - Outside Work
50. This clause provides that a Federal Magistrate must not engage in remunerated (paid)
work which is inconsistent with the holding of judicial office. In particular, paragraph (2)(a)
prohibits a Federal Magistrate from practising as a legal practitioner.
51. Subclause (3) ensures that any doctrine of constitutional incompatibility will apply to
a Federal Magistrate. For example, in Wilson v Minister for Aboriginal and Torres Strait
Islander Affairs (1996) 138 ALR 220 the High Court held that there were certain functions
that could not be conferred on a federal judicial officer. This would be the case if the
function were incompatible with the judicial officer's performance of his or her judicial
functions or with the proper discharge by the judiciary of its responsibilities as an institution
exercising judicial power.
Clause 24 - Leave
52. This clause provides that recreation leave entitlements for a Federal Magistrate are
those determined by the Remuneration Tribunal.
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Clause 25 - Other terms and conditions
53. This clause provides for the Governor-General to determine other terms and
conditions not specified in the Bill. Any determination made by the Governor-General is a
legislative instrument which must be tabled in Parliament and may be disallowed within 15
sitting days after the determination is tabled. This disallowance mechanism is based on a
similar mechanism in section 7 of the Remuneration Tribunal Act 1973.
Clause 26 - Disability and death benefits
54. This clause applies the disability and death benefit provisions in Division 2 of Part 2
of Schedule 1 to the Federal Magistrates Act 1999 in relation to Federal Magistrates of the
Military Court. Subclause (2) provides the following modifications to facilitate this
application: each reference to a Federal Magistrate is to be read as a reference to a Federal
Magistrate of the Military Court, cross-references to other clauses in the Federal Magistrates
Act 1999 are replaced by references to equivalent provisions in this Bill, and the definition of
prior judicial service includes service as a Federal Magistrate of the Federal Magistrates
Court.
55. Subclause (3) replicates section 9G in Division 2 of Part 2 of Schedule 1 to the
Federal Magistrates Act 1999 that establishes a special appropriation for the payment of
disability and death benefits. The establishment of a special appropriation is necessary as it is
not possible to predict when such benefits will need to be paid.
Subdivision C - Miscellaneous
Clause 27 - Certain references in other laws to Judge of a superior court etc. not to
include Federal Magistrate
56. Subclause (1) confirms that the expressions `Judge of a superior court' and `Judges of
a superior court', in any other law of the Commonwealth, do not include a Federal Magistrate
of the Military Court (which is a superior court of record). Section 48C of the Australian
Capital Territory (Self-Government) Act 1988 is an example of where this expression occurs.
57. Similarly, subclause (2) confirms that references, in any other law of the
Commonwealth, to a period during which a person served as a Judge in a superior court do
not include references to a period during which the person served as a Federal Magistrate of
the Military Court. Section 34B of the Australian Security Intelligence Organisation Act
1979 is an example of where this expression occurs.
58. This provision will clarify, for the avoidance of doubt, the application of such other
laws of the Commonwealth to persons who are serving or have served as a Federal Magistrate
of the Military Court. The Military Court is a superior court of record. However, where a
Federal Magistrate of the General Division consents to exercise non-judicial functions and
powers in their personal capacity under other Commonwealth laws, they are not to be taken to
be a Judge of a superior court for that purpose.
Part 3 - Management of the Military Court
59. Part 3 of the Bill provides for the management of the Military Court. Direct
responsibility for the management of the Court, including management of its financial affairs,
17
is vested in the Chief Justice. Part 3 also provides for the Registrar to assist the Chief Justice
in the management of its administrative affairs.
60. Clause 3 of the Bill defines the Registrar to mean the Registrar of the Federal Court of
Australia appointed under section 18C of the Federal Court of Australia Act 1976. This
makes clear the single administration arrangements which will operate. The Military Court is
expected to make use of the existing infrastructure of the Federal Court of Australia. Part 3
provides a mechanism for the Chief Justice of the Military Court to make these arrangements
and to make arrangements with other agencies, organisations and the Chief of the Defence
Force.
61. The provisions of Part 3 are generally consistent with Part IIA of the Federal Court of
Australia Act 1976 and Part 7 of the Federal Magistrates Act 1999.
Division 1 - Introduction
Clause 28 - Guide to this Part
62. This clause sets out a guide to Part 3 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
Division 2 - Management responsibilities of the Chief Justice etc.
Clause 29 - Management of the administrative affairs of the Military Court
63. This clause gives the Chief Justice responsibility for the management of the
administrative affairs of the Military Court. This is in addition to the Chief Justice's
responsibilities for managing the business of the Military Court (clause 53). Subclause (2)
gives the Chief Justice broad powers necessary for administering the Military Court,
including the powers to enter into contracts and acquire and dispose of personal property.
These powers are expressly limited so that the Military Court may not enter into contracts
which involve more than $250,000 without the Attorney-General's approval. A higher
amount may be prescribed by regulation. These provisions are consistent with section 18A of
the Federal Court of Australia Act 1976.
Clause 30 - Arrangements with other courts
64. This clause allows the Chief Justice to make arrangements with other courts for the
performance of certain procedural functions on behalf of the Military Court and such other
non-judicial functions as the Military Court considers appropriate. It is expected that these
functions would be performed by the Federal Court of Australia under an arrangement with
the Military Court. If a function is performed in accordance with an arrangement under this
clause, the function will be deemed to have effect as if it had been performed by the Military
Court. These provisions are consistent with section 90 of the Federal Magistrates Act 1999.
Clause 31 - Arrangements with agencies and organisations
65. This clause allows the Chief Justice to make arrangements with Commonwealth and
State and Territory agencies or other organisations for the performance of certain procedural
and non-judicial functions on behalf of the Military Court. In some locations it may not be
possible for arrangements to be made with an existing court, for example because there are no
18
appropriate court facilities or services provided in that location. In these circumstances it is
expected that the Chief Justice will make arrangements with another agency or organisation
for the provision of services on behalf of the Military Court. If a function is performed in
accordance with an arrangement under this clause, the function will be deemed to have effect
as if it had been performed by the Military Court. These provisions are consistent with
section 18BA of the Federal Court of Australia Act 1976 and section 91 of the Federal
Magistrates Act 1999.
Clause 32 - Arrangements with the Chief of the Defence Force
66. Subclause (1) allows the Chief Justice to make arrangements with the Chief of the
Defence Force for members of the ADF to provide administrative assistance in relation to
proceedings in the Military Court and/or to act as a means of liaison between the Department
of Defence and the Military Court in relation to administrative arrangements of the Military
Court. Administrative support by service personnel could take the form of escort or orderly
duties to assist in the conduct of trials. It is expected that a senior military officer position
will be created within Defence to act as a means of liaison between Defence and the Military
Court to address administrative arrangements between the ADF and the court. Selection of
suitable personnel is the responsibility of the ADF.
67. The wearing of military uniform by administrative assistants will be at the discretion
of the Chief Justice. The utilisation of uniformed ADF personnel in administrative assistance
roles provides a visible means of promoting the service nature and identity of the Military
Court to service personnel and the Australian public. To ensure the independence of the
Military Court, the ADF members will not carry out any judicial functions.
68. Subclause (2) provides that members of the ADF providing administrative or liaison
assistance to the Military Court in accordance with an arrangement made under subclause (1)
are subject to the direction and control of the Chief Justice and the Registrar and are not
subject to the direction or control of any other person or body. This is important to ensure the
independence of the court, consistent with Chapter III of the Constitution.
69. Subclause (3) provides that an ADF member is not subject to military command or to
the Defence Force Discipline Act 1982 in relation to the provision of administrative or liaison
assistance to the Military Court in accordance with an arrangement under subclause (1). This
is because the Military Court is created as an independent court under Chapter III of the
Constitution. However, in relation to any other matter, the ADF member remains subject to
military command and the Defence Force Discipline Act 1982.
70. Subclause (4) provides that members of the ADF are bound by the Code of Conduct
(within the meaning of the Public Service Act 1999) in providing administrative or liaison
assistance to the Military Court in accordance with an arrangement under subclause (1).
71. Subclause (5) provides that the Registrar may determine, in accordance with the
procedures established under subsection 15(3) of the Public Service Act 1999, whether a
member of the ADF has breached the Code of Conduct in providing administrative or liaison
assistance to the Military Court in accordance with an arrangement under subclause (1).
Subsection 15(3) of the Public Service Act 1999 provides that such procedures must comply
with basic procedural requirements set out in Commissioner's Directions and must have due
regard to procedural fairness.
19
72. Subclause (6) provides that, where the Registrar determines that a member of the ADF
has breached the Code of Conduct in providing administrative or liaison assistance to the
Military Court, the member is taken not to have acted in accordance with the arrangement
made under subclause (1), to the extent of the breach. This has the effect of excluding the
operation of subclause (2) and (3), which means the member of the ADF would be subject to
military command and the Defence Force Discipline Act 1982 in relation to his or her conduct
constituting that breach. Such conduct may constitute an offence against section 60 of the
Defence Force Discipline Act 1982, which prohibits acts that are likely to prejudice the
discipline of, or bring discredit on, the ADF. The determination by the Registrar of a breach
of the Code of Conduct would not, however, compel defence disciplinary action.
73. Subclause (7) substitutes certain phrases in the Code of Conduct so that they can be
read appropriately for the purposes of subclauses (4), (5) and (6). It provides that: `an APS
employee' is to be read as referring to a member of the ADF who is providing administrative
or liaison assistance to the Military Court in accordance with an arrangement under
subsection (1); `APS employment' is to be read as referring to the provision of such
administrative or liaison assistance; and `an APS employee's Agency' is to be read as `the
Statutory Agency referred to in section 18Q of the Federal Court of Australia Act 1976'.
APS employees of the Military Court would be part of the existing statutory agency under the
Federal Court of Australia Act 1976 for the purposes of the Public Service Act 1999 (see Item
22 of Schedule 3 of the Military Court of Australia (Transitional Provisions and
Consequential Amendments) Bill 2012).
Clause 33 - Arrangements for sharing courtrooms and other facilities
74. This clause provides for the Chief Justice to make arrangements with another court for
the Military Court to sit in rooms of another court, to share registry facilities of another court
or for the court to provide registry services to the Military Court. This provision is consistent
with section 92 of the Federal Magistrates Act 1999.
Clause 34 - Delegation of administrative powers of Chief Justice
75. This clause allows the Chief Justice to delegate all or any of his or her powers under
clause 29 to any one or more of the Judges or Federal Magistrates. This provision is
consistent with section 18W of the Federal Court of Australia Act 1976 and section 117A of
the Federal Magistrates Act 1999.
Division 3 - Registries
Clause 35 - Establishment of registries
76. This clause provides for the Attorney-General to establish such registries of the
Military Court as the Attorney-General thinks fit. It is expected that the Attorney-General
will establish such registries as are required according to workload and needs of the Military
Court. This is consistent with section 34 of the Federal Court of Australia Act 1976 and
section 98 of the Federal Magistrates Act 1999.
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Division 4 - Registrar
Clause 36 - Functions and powers
77. This clause gives the Registrar the power to do all things necessary or convenient to
be done for the purpose of assisting the Chief Justice. In particular, this will ensure that the
Registrar can assist the Chief Justice in conducting the administrative affairs of the Military
Court. This clause also establishes the independence of the Registrar, in the performance of
the Registrar's function and powers, so that the Registrar is subject to the direction and
control of the Chief Justice but not any other person or body in relation to the performance of
a function or the exercise of a power under this Bill or the Military Court Rules. These
provisions are consistent with section 18D of the Federal Court of Australia Act 1976.
78. Subclause (6) clarifies that the functions and powers conferred on the Registrar under
the Bill are in addition to the functions and powers conferred on the Registrar by any other
law of the Commonwealth. Clause 3 defines the Registrar to mean the Registrar of the
Federal Court of Australia appointed under section 18C of the Federal Court of Australia Act
1976. The Registrar of the Federal Court of Australia has powers and functions under the
Federal Court of Australia Act 1976.
Clause 37- Delegation of powers to Registrars
79. This clause allows certain procedural powers of the Military Court to be exercised by
Registrars, which includes the Registrar and Deputy Registrars, at the direction of the
Military Court. This includes powers to dispense with service of any process, make orders in
relation to substituted service, pre-trial disclosures, the adjournment of a hearing, exempting a
party from compliance with the Military Court Rules, or any other power of the Military
Court prescribed by the Rules. A Registrar has total independence in relation to the manner
in which he or she exercises these powers, and is not subject to the direction or control of any
person or body. However, an exercise of these powers by a Registrar is subject to review by
the Military Court. If a Registrar considers that it would not be appropriate for him or her to
exercise any of these powers, or an application is made for the Military Court to determine
the matter, he or she must refer the application for the exercise of the power to the Military
Court. These provisions are based on section 35A of the Federal Court of Australia Act
1976.
Division 5 - Other officers and staff of the Military Court
Clause 38 - Officers of the Military Court
80. This clause provides for the officers and the Registry staff of the Military Court, apart
from the Registrar. This includes Deputy Registrars, the Sheriff and Deputy Sheriffs of the
Military Court. These officers are to be appointed by the Registrar. All officers of the
Military Court other than the Registrar and the Deputy Sheriffs are to be subject to the Public
Service Act 1999. Deputy Sheriffs may be Commonwealth, State or Territory officers.
81. Subclause (3) provides that a person may be an officer of both the Military Court and
the Federal Court. Subclause (4) provides that subclause (3) has effect despite anything in
this Bill or the Federal Court of Australia Act 1976. This will facilitate the making of
arrangements for sharing registry or other services provided by the Federal Court.
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82. Subclause (5) stipulates that the Deputy Registrar cannot be a member of the ADF.
This is to ensure the independence of the Military Court.
83. There is nothing in the Bill that prevents a Sheriff or Deputy Sheriff from being a
member of the ADF. This is because the Sheriff and Deputy Sheriffs would not exercise any
judicial functions, and would only carry out administrative work in the Military Court. While
carrying out those functions, members of the ADF would be subject to the direction and
control of the court. They would be subject to military command and the Defence Force
Discipline Act 1982 in all other respects.
84. These provisions are generally consistent with section 18N of the Federal Court of
Australia Act 1976.
Clause 39- Functions of officers other than the Registrar
85. This clause provides that officers of the Military Court have the duties, powers and
functions which are given to them by the Bill, the Military Court Rules or the Chief Justice.
In carrying out these duties, powers and functions the officers of the Military Court may be
assisted by members of the ADF in accordance with an arrangement made between the Chief
Justice and the Chief of the Defence Force under clause 32.
Clause 40 - Deputy Registrars
86. This clause establishes the independence of Deputy Registrars, in relation to the
performance and exercise of his or her functions and powers, from any person or body other
than the direction and control of the Chief Justice, other Judges or Federal Magistrates
authorised by the Chief Justice and the Registrar. The Registrar's control over Deputy
Registrars may include making arrangements for Deputy Registrars to perform certain
functions in particular matters or classes of matters.
Clause 41 - Functions of the Sheriff and Deputy Sheriffs
87. This clause sets out the responsibilities of the Sheriff of the Military Court. These
include the service and execution of process of the Military Court, dealing with federal, state
and territory, and military police in this regard, the detention of persons committed to the
Sheriff's custody and discharging such persons when so directed by the Military Court. This
clause is modelled on section 18P of the Federal Court of Australia Act 1976.
Clause 42 - Actions by or against the Sheriff or a Deputy Sheriff
88. This clause provides for a procedure to be followed where the Sheriff or a Deputy
Sheriff is a party to a proceeding in the Military Court. It provides for all processes that
would normally be directed to the Sheriff to be directed to a disinterested person appointed by
the Military Court. This procedure follows section 113 of the Federal Magistrates Act 1999.
Clause 43 - Staff of the Military Court
89. This clause provides for there to be such staff of the Military Court as are necessary
and for these staff to be engaged under the Public Service Act 1999.
22
90. APS employees of the Military Court would be part of the existing statutory agency
under the Federal Court of Australia Act 1976 for the purposes of the Public Service Act
1999 (see section 18Q of the Federal Court of Australia Act 1976).
Clause 44 - Engagement of consultants etc.
91. This clause allows the Registrar to engage consultants with suitable qualifications and
experience to perform services for the Military Court. This provides flexibility to the
Registrar, for example, to ensure the court has the capability to handle particular non-judicial
work for the Military Court where specialist expertise is required which may not be otherwise
available to the Military Court. These provisions are consistent with section 18R of the
Federal Court of Australia Act 1976.
Division 6 - Miscellaneous administrative matters
Clause 45 - Seal of the Military Court
92. This clause provides for the seal of the Military Court and for the Attorney-General to
determine the design of the seal. The seal of the Court and a stamp bearing the design of the
seal must be affixed to documents as provided for in the Bill or by the Military Court Rules.
These provisions are consistent with section 36 of the Federal Court of Australia Act 1976.
Clause 46 - Writs
93. This clause provides for the formal requirements of writs, commissions and processes
issued by the Military Court. That is, they should have the seal of the Military Court affixed
to them and be signed by the Registrar, a Deputy Registrar or authorised person. The
signature of the Registrar or a Deputy Registrar may be an electronic signature applied to the
document by an authorised person. These provisions are consistent with section 37 of the
Federal Court of Australia Act 1976.
Clause 47 - Annual report
94. Subclause (1) provides for the Chief Justice of the Military Court to give the
Attorney-General a report on the management of the administrative affairs of the Military
Court as soon as practicable after the end of the financial year. Subclause (2) requires the
report to be tabled in Parliament.
Clause 48 - Proceedings arising out of administration of Military Court
95. This clause allows for proceedings to be instituted by or against the Commonwealth in
relation to matters arising out of the management of the administrative affairs of the Military
Court. This includes any proceedings relating to anything done by the Registrar under Part 3.
This clause is consistent with section 18X of the Federal Court of Australia Act 1976.
Clause 49 - Oath or affirmation of office
96. This clause provides that the Registrar and each Deputy Registrar of the Military
Court must take an oath or affirmation of allegiance before proceeding to discharge the duties
of his or her office, and sets out the form of that oath or affirmation. This is consistent with
section 18Y of the Federal Court of Australia Act 1976.
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Part 4 - Jurisdiction of the Military Court: general
97. Part 4 of the Bill includes various provisions on the exercise of jurisdiction in the
Military Court generally. This includes the Military Court's power to punish contempt, the
Chief Justice's responsibilities for arranging the Military Court's business and the general
obligation to exercise jurisdiction in open court. These provisions are generally consistent
with comparable sections in Parts II and III of the Federal Court of Australia Act 1976,
discussed further in Division 1. Other provisions in Part 4, such as the Military Court's
powers to determine its place of sitting, contained in clause 51, are specific to the Military
Court.
Division 1 - Introduction
Clause 50 - Guide to this Part
98. This clause sets out a Guide to Part 4 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
Division 2 - Arrangement of business of the Military Court etc.
Clause 51 - Place of sitting
99. This clause provides the Military Court with the power to determine its place of
sitting.
100. Subclause (1) provides that the Military Court will sit at a place in Australia to hear
and determine a proceeding or part of a proceeding. Australia is defined in clause 3 to
include the external Territories. Subject to the discretion of the judicial officer, Military
Court trials in Australia could be heard anywhere in Australia, including on ADF
establishments (providing visibility of the operation of the military justice system for service
personnel) or in a federal or State or Territory courtroom facility. The Military Court can sit
at a place outside Australia where the Military Court determines, in accordance with this
clause, that it is both necessary and possible for it to sit at a place outside Australia to hear
and determine the proceeding or the part of the proceeding.
101. Subclause (2) provides that the Military Court may sit at any place outside Australia
to hear and determine a proceeding or a part of a proceeding in respect of a charge of a
service offence where it is necessary to do so, in the interests of justice, and the accused
person or the DMP has applied for it to do so. The ability for the Military Court to sit
overseas is an essential feature of the court to maintain discipline in deployed environments.
Specific issues which may make it necessary for the Military Court to sit in a place outside
Australia might include prosecution or defence witnesses who might be foreign nationals
(civilian or military) who are unable or unwilling to come to Australia to give evidence,
physical evidence being located outside Australia or a host nation or coalition partner that
might expect a matter to dealt with in the theatre of operations.
102. In determining an application for the court to sit outside Australia made under
subclause (2), subclause (3) requires the Military Court to take a number of matters into
account in determining what is in the interests of justice: namely, where the service offence
24
occurred, the location of the accused person and any witnesses, the ability of witnesses to
give evidence in Australia and submissions from the accused and the DMP
103. If the Military Court determines that it is necessary in the interests of justice to sit at a
place outside Australia, subclause (4) requires the Military Court to then determine whether it
is possible to do so. In this regard, the Military Court must consider: the security of that
place, any relevant Australian or foreign laws, any arrangements in place between Australia
and the host nation, the international legal basis for the presence of both the ADF and the
Military Court in that country and submissions from the accused person and the DMP. The
agreements or arrangements in place between Australia and the host nation could include
Status of Forces Agreements or other international arrangements which provide for the
exercise of jurisdiction over deployed forces for the purposes of military discipline. If the
country in question does not have a recognised or functioning government in place and the
presence of the ADF is based upon a United Nations Security Council resolution, this would
also be a relevant consideration.
104. Where it is necessary but not possible for the Military Court to sit in a place outside
Australia to hear and determine the proceeding or a part of the proceeding, subclause (5)
provides that the proceeding is taken to be discontinued and the charge to have been
withdrawn from the Military Court. The note to this subclause clarifies that, in these
circumstances, charges may be dealt with under the Defence Force Discipline Act 1982 by the
residual court martial and Defence Force magistrate system (see General Outline of this Bill).
Under that Act, a court martial or Defence Force magistrate could then deploy to a place
outside Australia to hear and determine the charge.
Clause 52 - Manner in which Military Court may be constituted
105. Subclause (1) provides that the Military Court, in exercising its original jurisdiction,
may be constituted by a single Federal Magistrate, a single Judge or the Full Court.
Subclauses (2) and (3) provide that the Full Court consists of three Judges sitting together but
if one of the Judges dies, resigns or otherwise becomes unable to continue as a member of the
Full Court once a hearing has commenced, the Full Court may be constituted by the
remaining two Judges with the consent of the parties. These provisions are modelled on
subsections 14 (1), (2) and (3) of the Federal Court of Australia Act 1976.
106. Subclauses (4) and (5) respectively provide that the Military Court constituted by one
or more Judges or a Federal Magistrate may sit and exercise the jurisdiction of the Court
notwithstanding that the Court constituted by one or more other Judges or another Federal
Magistrate is at the same time sitting and exercising the jurisdiction of the Court. These
provisions are consistent with subsection 14(6) of the Federal Court of Australia Act 1976.
Clause 53 - Arrangement of the business of the Military Court
Responsibility of Chief Justice
107. This clause gives the Chief Justice specific responsibility for arranging the business of
the Military Court and, after appropriate consultation with other Judges and Federal
Magistrates, the business of the Judges and Federal Magistrates who are to constitute the
Military Court in any matter or any class of matters. This would include assigning caseloads
to particular Judges or Federal Magistrates, making arrangements to temporarily restrict a
Judge or Federal Magistrate to non-sitting duties and to provide Judges and Federal
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Magistrates with access to judicial education, as part of the Chief Justice's overall
responsibility for ensuring the effective, orderly and expeditious discharge of the Court's
business.
108. Subclause (3) provides that the Chief Justice has the same protection and immunity
when exercising these powers or performing these functions as if he or she were exercising or
performing those powers or functions as a member of the Military Court. This means that
judicial immunity applies to the Chief Justice in making arrangements to discharge the
Court's business so that he or she is protected from personal liability for exercising these
functions.
109. Subclause (4) provides that the Federal Court does not have jurisdiction with respect
to a matter relating to arrangements made by the Chief Justice in carrying out the business of
the Court. The Federal Court might otherwise have such jurisdiction under section 39B of the
Judiciary Act 1903. This means that proceedings cannot be brought against the Chief Justice
in the Federal Court for exercising or performing his or her powers or functions in this regard.
110. These provisions are consistent with section 15 of the Federal Court of Australia Act
1976.
Arrangements for Judges or Federal Magistrates who hold other judicial offices
111. This clause makes provision for judicial officers in other federal courts to be made
available by arrangement for work in the Military Court. Such inter-curial arrangements will
be made between the Chief Justice of the Military Court and the head of jurisdiction of the
other federal court. These provisions are modelled on subsections 15(2) and (3) of the
Federal Court of Australia Act 1976.
Clause 54 - Exercise of powers of Military Court in Divisions
112. This clause provides that Judges of the Military Court must exercise the powers of the
Court in the Appellate and Superior Division, while Federal Magistrates of the Military Court
must exercise the powers of the Court in the General Division. This corresponds to the
assignment of Judges and Federal Magistrates to these respective Divisions (clause 13). This
clause reflects the intention for certain matters to be heard in each Division, according to the
structure of the Military Court (clause 10) and subject to the responsibilities of the Chief
Justice to manage the Military Court's business (clause 53).
113. Subclause (3) confirms that the validity of any exercise of power by the Military
Court otherwise than in accordance with these arrangements is not affected.
Clause 55 - Military Court divided in opinion
114. This clause provides that judgments of the Full Court are to be pronounced according
to the opinion of the majority of Judges, where the Judges constituting the Full Court are
divided in opinion for the purposes of any proceeding. Where the Judges are equally divided
in opinion, the opinion of the Chief Justice or the next most senior Judge is to prevail.
However, in an appeal from a judgment of the Military Court constituted by a single Judge or
Federal Magistrate, a Full Court equally divided in opinion will affirm the judgment appealed
from. These provisions are consistent with section 16 of the Federal Court of Australia Act
1976.
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Clause 56 - Exercise of jurisdiction in open court and in Chambers
115. Subclause (1) provides that the Military Court will generally exercise its jurisdiction
in open court. However, certain matters set out in subclause (2) may be dealt with by a Judge
or Federal Magistrate in Chambers. These matters are interim and pre-trial matters, and any
other matter prescribed by the Military Court Rules.
116. Subclause (3) allows a Judge or a Federal Magistrate to order that a proceeding in
Chambers be adjourned into court.
117. Subclause (4) allows the Military Court to order that a proceeding in open court be
adjourned into Chambers if, apart from this subclause, the jurisdiction of the Military Court
may be exercised by a Judge or Federal Magistrate sitting in Chambers in that proceeding.
118. The Military Court may also make orders under subclause (5) to exclude the public or
persons specified by the Military Court from a sitting of the Military Court, if satisfied that it
is in the interests of justice or national security to do so. National security is defined in
section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 to
mean Australia's defence, security, international relations or law enforcement interests.
119. This clause is consistent with section 17 of the Federal Court of Australia Act 1976.
Division 3 - Other matters
Clause 57 - Making of orders and issuing of writs
120. This clause gives the Military Court the power to make orders and issue writs, as
appropriate, for matters in which it has jurisdiction. See also clause 176 which provides that
an order of the Military Court must be in writing or reduced to writing as soon as practicable.
This clause is consistent with section 23 of the Federal Court of Australia Act 1976.
Clause 58 - Costs not to be awarded
121. This clause provides that the Military Court cannot award costs in a proceeding except
as provided in clause 109.
122. This reflects the traditional position that the Crown neither pays nor recovers costs in
proceedings for a charge of an offence.
123. Clause 109 provides for the Military Court to award costs in respect of appeals.
Clause 59 - Powers of Military Court extend to whole of Australia
124. This clause provides that the process of the Military Court runs, and the judgments of
the Military Court have effect and may be executed both within and outside Australia. The
provision is consistent with section 18 of the Federal Court of Australia Act 1976, in so far as
it applies within Australia. The extension of the Military Court's powers outside Australia is
necessary where the Military Court decides to sit at a place outside Australia to determine a
proceeding or part of proceeding in respect of a charge of a service offence (clause 51).
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Clause 60 - Prerogative of mercy unaffected
125. This clause provides that nothing in Part 4 or 5 abrogates or affects the prerogative of
mercy. This is consistent with section 31B of the Federal Court of Australia Act 1976 and
also consistent with the way service offences are dealt with under the Defence Force
Discipline Act 1982, as stated in section 189 of that Act.
Clause 61 - Contempt of court
126. Subclause (1) provides that, subject to any other Act, the Military Court has the same
power to punish contempt of its power and authority as is possessed by the High Court in this
regard.
127. Subclause (2) specifies that the jurisdiction of the Military Court to punish contempt
may be exercised by the Military Court as constituted at the time of the contempt.
128. These provisions are consistent with section 31 of the Federal Court of Australia Act
1976.
Part 5 - Original jurisdiction of the Military Court
129. Part 5 of the Bill establishes the original jurisdiction of the Military Court. This Part
is modeled on Division 1A in Part III of the Federal Court of Australia Act 1976. Division 3
of Part 5 deals with the conduct of proceedings in the original jurisdiction of the Military
Court. Division 4 of Part 5 deals with pre-trial matters in proceedings before the Military
Court. It includes a system of pre-trial hearings to narrow the range of issues that will have to
be dealt with at trial and to reduce the length of trials. It also includes a disclosure regime
between the parties to ensure that the accused person knows the case against them and that
any matters and facts which are not in dispute are identified at an early stage so that the trial
can concentrate on matters which are genuinely in dispute.
Division 1 - Introduction
Clause 62 - Guide to this Part
130. This clause sets out a guide to Part 5 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
Division 2 - Original jurisdiction
Clause 63 - Original jurisdiction of the Military Court
131. This clause confers on the Military Court original jurisdiction to hear and determine
charges of service offences. Service offences within the Military Court's original jurisdiction
are contained in the Defence Force Discipline Act 1982.
132. The Military Court may also be vested with original jurisdiction by other Acts. This
can be done by express provision or by the operation of section 15C of the Acts Interpretation
Act 1901 to a provision that authorises a proceeding to be instituted in the Military Court in
relation to a matter. In particular, the Military Court will be vested with original jurisdiction
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to try service offences which would otherwise be heard by a summary authority under the
Defence Force Discipline Act 1982, on the up-front election of the accused person or on
referral by the service tribunal. This will be provided for by amendment to the Defence Force
Discipline Act 1982, in the Military Court of Australia (Transitional and Consequential
Amendments) Bill 2012.
133. The original jurisdiction of the Military Court will include any jurisdiction vested in it
to hear and determine appeals from decisions of persons, authorities or tribunals other than
courts. In particular, the Military Court will be vested with original jurisdiction to hear and
determine appeals, on questions of law, from certain determinations of courts martial and
Defence Force magistrates. The residual role for courts martial and Defence Force
magistrates is expected to be very limited - they will only be able to hear matters where the
Military Court determines that it is necessary for a trial to be conducted overseas but also that
it is not possible for the Military Court to deploy (see clause 51 for place of sitting). The
residual role of courts martial and Defence Force magistrates is provided for in the Military
Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012.
134. Subclause (2) provides that the Military Court will not have original jurisdiction to
hear or determine charges of custodial offences. These offences are established in section
54A of the Defence Force Discipline Act 1982 and relate to persons in detention under that
Act. This is because the punishments that apply to custodial offences under the Defence
Force Discipline Act 1982 are more appropriately administered by a summary authority under
that Act.
Clause 64 - Charges of service offences not to be dealt with on indictment
135. This clause provides that charges of service offences are to be dealt with otherwise
than on indictment. This means that they will not be tried before a jury. This is consistent
with the determination of service offences under the Defence Force Discipline Act 1982,
which also does not provide for trial by civilian jury. Amendment of that Act to reflect the
status of service offences and make clear the intent that service offences are not to be tried on
indictment is contained in the Military Court of Australia (Transitional and Consequential
Amendments) Bill 2012.
136. The Defence Force Discipline Act 1982 complements, and does not replace, the
criminal law in force in Australia. Under the Defence Force Discipline Act 1982, jurisdiction
is restricted to the prosecution of service offences, in circumstances in which prosecution can
reasonably be regarded as substantially servicing the purpose of maintaining or enforcing
service discipline. Offences the Defence Force Discipline Act 1982 provides for are service
offences. Sometimes, conduct which is a service offence may also constitute a serious
criminal offence. If conduct is to be prosecuted as a criminal offence, service personnel, like
civilian citizens, will be afforded trial by jury if prosecution is of a criminal offence by a
civilian Director of Public Prosecutions on indictment.
Clause 65 - Exercise of original jurisdiction
137. Subclauses (1) and (2) provide that the original jurisdiction of the Military Court is to
be exercised by a single Federal Magistrate in the General Division, unless the proceeding is
for the trial of a charge of a serious service offence prescribed in Schedule 1, or an appeal
from a decision of a court martial or Defence Force magistrate or a question of law referred to
the Full Court under Schedule 3 of the Defence Force Discipline Act 1982. In these cases, the
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original jurisdiction of the Military Court is to be exercised in the Appellate and Superior
Division.
138. The Chief Justice may also direct that a proceeding be heard and determined in the
Appellate and Superior Division. For example, if a person is charged with a number of
offences, including offences prescribed under Schedule 1 and other non-Schedule 1 offences,
the Chief Justice may direct that all the charges be dealt with together in the Appellate and
Superior Division.
139. Service offences listed in Schedule 1 are those that go to the very core of maintaining
discipline in the ADF such as offences relating to operations against the enemy, mutiny,
desertion and ordering the commission of a service offence. It also contains offences for
which the most serious penalties can be imposed under the Defence Force Discipline Act
1982. This clause ensures that charges of the most serious service offences prescribed in
Schedule 1 are heard by Judges, as well as charges which the Chief Justice considers
appropriate for Judges to hear and determine, while less serious service offences are tried by
Federal Magistrates.
140. A single Judge will exercise the original jurisdiction of the Military Court in the
Appellate and Superior Division, in respect of a Schedule 1 offence or a proceeding which the
Chief Justice has directed to be heard in that Division (subclause (3)). However, appeals
from a court martial or Defence Force magistrate will be heard by the Full Court in the
Appellate and Superior Division (subclause (4)). The note under subclause (4) states that
certain applications relating to an appeal to the Military Court from a determination of a court
martial or a Defence Force magistrate under Schedule 3B of the Defence Force Discipline Act
1982 may be heard and determined by a single judge.
141. Subclause (5) defines a Schedule 1 offence as an offence against a provision of the
Defence Force Discipline Act 1982 that is specified in the table in Schedule 1. It also
includes an ancillary offence in relation to an offence specified in the table in Schedule 1 that
was committed by a person at a time when the person was a defence member or a defence
civilian. This provision makes it clear that, in these circumstances, an ancillary offence is
also a service offence.
142. Subclause (6) defines an ancillary offence, in this sense, as meaning an offence
against section 11.1, 11.4 or 11.5 of the Criminal Code (attempt, incitement and conspiracy)
or section 6 of the Crimes Act 1914 (accessory after the fact).
Clause 66 - Referral of proceedings from one Division to another
143. Subclause (1) allows the Chief Justice, on application by a party or on his or her own
initiative, to refer a proceeding pending in one Division of the Military Court to the other
Division. However, a Schedule 1 offence or an appeal under Schedule 3B of the Defence
Force Discipline Act 1982 cannot be referred to the General Division (subclause (2)) because
those offences can only be heard in the Appellate and Superior Division (clause 65).
144. Subclause (6) sets out certain matters which the Chief Justice must take into account
when deciding whether to refer a proceeding between Divisions. This includes the
seriousness of the service offence, the complexity of the matters raised by the proceeding, the
wishes of the parties and the interests of the administration of justice. The Military Court
Rules may also make provision in relation to the referral of proceedings from one Division to
30
another (subclause (4)) and set out additional factors to be considered by the Chief Justice
(subclause (5)).
145. If the Chief Justice refers a proceeding to the other Division, the Chief Justice may
impose such conditions on the referral as he or she considers necessary pending the disposal
of the proceeding (subclause (7)). A decision by the Chief Justice to refer or not to refer a
proceeding between Divisions cannot be appealed (subclause (8)).
Division 3 - Instituting proceedings
Clause 67 - Instituting proceedings in the Military Court
146. This clause sets out the procedure for instituting proceedings in the original
jurisdiction of the Military Court for the trial of a charge of a service offence. Subclause (1)
requires the proceedings to be instituted in accordance with the Military Court Rules.
Subclause (2) requires the Military Court, on the referral of a charge by the DMP to the
Military Court, to issue a summons to the person charged with a service offence to appear
before the Military Court on a date and at a time and place specified in the summons.
Clause 68 - Condonation of service offence not to prevent institution of proceeding
147. This clause provides that condonation of a service offence does not prevent a
proceeding being instituted in the Military Court in respect of the service offence. This is
consistent with the way service offences are dealt with under the Defence Force Discipline
Act 1982, as stated in section 143 of that Act.
Clause 69 - Charge sheet may include charge of alternative offence
148. This clause provides that a charge sheet for a service offence can also include
alternative offences against an accused person. It is modelled on section 23BA of the Federal
Court of Australia Act 1976. This gives flexibility in a case where it is not clear what
findings the Military Court will make but where more than one finding will support a
conviction. The Military Court can be given the option of finding the accused person guilty
of one or other of the alternative offences. For example, an accused person may be charged
as a principal to an alleged offence or, in the alternative, as a person who has aided and
abetted the offence.
149. The Military Court will have power to direct that one or more counts be removed from
a charge sheet if it considers that it would be unfair for the trial to proceed on the charge sheet
as filed.
Clause 70 - Single charge sheet can cover multiple accused persons
150. This clause provides that a single charge in a charge sheet can cover more than one
accused person for the same service offence if the charge is founded on the same or
essentially the same alleged facts for each accused. It is modelled on section 23BB of the
Federal Court of Australia Act 1976.
151. This will provide flexibility to draft a charge sheet in a case where it is alleged that
more than one person was party to an alleged offence. It is not necessary to have a lengthy
charge sheet repeating the same allegations against each accused person. This provision may
be used if, for example, it is alleged that more than one accused person was a party to the
31
same service offence. The DMP will still need to prove its case separately against each
accused person and the Military Court will need to reach a separate verdict against each
accused.
152. The provision ensures that, when appropriate, all relevant and related issues can be
dealt with in one trial before the Military Court. The Military Court will have power under
clause 81 to prevent unfairness to the accused person.
Clause 71 - Separating one or more accused persons from a single charge
153. This clause is modelled on section 23BC of the Federal Court of Australia Act 1976.
Subclause (1) gives the Military Court power to direct that one or more of the accused person
included in a single charge in a charge sheet be tried separately, either in the same
proceedings but on a different charge in the same charge sheet or in a separate trial, if
satisfied that it is expedient to do so in the interest of justice.
154. Subclauses (2) and (3) give the Military Court power to make an order either before or
after a trial has commenced and power to make any other orders that it considers appropriate
in the circumstances.
Clause 72 - Single charge sheet can include multiple charges
155. This clause is modelled on section 23BD of the Federal Court of Australia Act 1976.
Subclause (1) provides that a single charge sheet may include charges for more than one
service offence against a single accused person if they are founded on the same alleged facts
or they relate to a series of alleged service offences of the same or similar character or
purpose.
156. Subclause (2) provides that a charge sheet may include charges against any number of
accused persons for the same or different service offences if they are founded on the same or
substantially the same alleged facts or they relate to a series of alleged service offences of the
same or similar character or purpose.
157. These provisions give flexibility to draft a charge sheet in a case where one or more
persons are alleged to have engaged in a course of unlawful conduct. They ensure that, when
appropriate, all relevant and related issues can be dealt with in one trial before the Military
Court. The Military Court will have power under clause 73 to prevent unfairness to the
accused person.
Clause 73 - Separating one or more charges from a single charge sheet
158. This clause is modelled on section 23BE of the Federal Court of Australia Act 1976.
Subclause (1) gives the Military Court power to direct that one or more of the charges in a
charge sheet be tried separately in separate proceedings if satisfied that it is expedient to do so
in the interest of justice. Any separate trial will have to take place under a new charge sheet.
159. Subclauses (2) and (3) give the Military Court power to make an order either before or
after a trial has commenced and power to make any other orders that it considers appropriate
in the circumstances.
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160. This may occur if, for example, the Military Court considers that a charge sheet
covers so many service offences or so many accused persons, that it would be unfair to allow
a matter to proceed as a single trial.
Clause 74 - Amending charges
161. This clause sets out the rules for when the DMP can amend a charge sheet that has
been filed in the Military Court or replace a charge sheet. It is modelled on section 23BH of
the Federal Court of Australia Act 1976.
162. Under subclause (1) the DMP can amend or replace a charge included in a charge
sheet at any time before a trial commences. The procedure for amending or replacing a
charge will be set out in the Military Court Rules (see clause 189 for the power to make
Rules).
163. Subclause (2) provides that once a trial has commenced the DMP can only amend or
replace a charge included in a charge sheet with the leave of the Military Court.
164. Subclause (3) provides that if the DMP replaces a charge included in a charge sheet
the Military Court must dismiss the replaced charge.
165. Subclause (4) provides that if a charge included in a charge sheet is amended or
replaced, the Military Court may make such orders as it thinks appropriate in the
circumstances. For example, if a charge sheet is amended to remove a charge against the
accused person, the Military Court could discharge the accused in relation to that charge.
166. Subclause (5) makes it clear that this clause does not affect the amendment of a charge
under other provisions of this Part. Examples of such provisions are clause 84 (the Military
Court may amend a charge included in a charge sheet to remove a defect objected to by the
accused person), clause 87 (a charge will be taken to have been amended if the DMP advises
the Military Court that the accused has entered guilty pleas to some counts in satisfaction of
others) and clause 88 (a charge will be taken to have been amended if a guilty plea is made in
relation to a different service offence capable of being supported by a charge included in the
charge sheet).
Division 4 - Pre-trial matters
Clause 75 - Pre-trial hearings
167. This clause sets out a procedure for pre-trial hearings before the Military Court.
Subclause (1) provides that the DMP and the accused person must attend a pre-trial hearing
before the Military Court on the date and at the time and place notified by the Military Court.
At the hearing, the accused person may enter a plea to each charge that relates to the accused
person (subclause (3)).
168. Subclause (2) gives the Military Court power to order the parties to attend further
pre-trial hearings. The Military Court will be able to use that power to explore the scope for
narrowing the range of issues that will have to be dealt with at trial.
169. Subclause (4) provides power for the Military Court to make orders and
determinations during a pre-trial hearing for the efficient management and disposal of a trial
of the charge of a service offence.
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170. Subclause (5) sets out a non-exclusive list of the orders that can be made by the
Military Court during a pre-trial hearing and is designed to avoid doubt about whether, for
example, the Military Court can make orders at the pre-trial stage that will govern the conduct
of the trial. Among other things, the Court can make orders in relation to the admissibility of
evidence and on any legal issues which are likely to arise at trial.
171. The Military Court will also have power to rule on an objection to the charge or a
submission that the trial should not proceed for any other reason. This would include a claim
of autrefois acquit (previously acquitted for the same offence), autrefois convict (previously
convicted of the same offence) or a pardon.
172. Subclause (6) has the effect that any ruling made in the pre-trial process will be
binding at a trial, irrespective of which Judge or Federal Magistrate has made the ruling,
unless the Military Court is satisfied that applying the ruling would be contrary to the
interests of justice.
173. Subclause (7) has the effect that an accused person who wants to object to a charge or
submit that the trial should not proceed for any other reason must normally raise their
objection in the pre-trial process. This subclause provides that if a matter covered by
paragraph (5)(a) or (d) was not raised during the pre-trial hearings, it cannot be raised at trial
unless the Military is satisfied that not to do so would be contrary to the interests of justice.
174. This clause is modelled on sections 23CA, 23CB and 23CC of the Federal Court of
Australia Act 1976. These provisions are designed to ensure that pre-trial procedures can be
used effectively by the Military Court to narrow the range of issues that will have to be dealt
with at trial and to reduce the length of trials. The purpose of this procedure is to ensure that
the Military Court is in a position to take control of the proceedings at an early stage and that
it is made clear from that stage whether the accused person pleads guilty or not.
175. This clause does not prevent the Military Court from conducting the pre-trial hearing
immediately before the trial. This might be done to minimise the costs that would be incurred
by the parties when attending at the Military Court on different days for pre-trial and trial
hearings, particularly where the parties would incur substantial travel expenses. It may be
appropriate for the pre-trial and trial hearings to be conducted consecutively where the
proceeding is not particularly complex, or where the exigencies of service might make this
preferable and the parties agree to do so.
Clause 76 - Pre-trial and ongoing disclosure
176. This clause gives the Military Court power to make orders for disclosure by the
DMP. The disclosure regime only applies if the Military Court makes an order under this
clause. This clause is adapted from section 23CD of the Federal Court of Australia Act 1976.
177. If the Military Court makes an order for disclosure by the DMP in accordance with
clause 77, the Military Court may order ongoing disclosure obligations on the DMP in
accordance with the Military Court Rules. Orders for ongoing disclosure might be made to
account for any additional material that comes into the possession of the DMP after formal
disclosure has been completed, or the fact that the DMP may decide to alter the basis on
which it will present its case.
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178. Subclause (3) requires the accused person to give notice if he or she intends to raise a
defence of alibi or adduce evidence that the accused person was suffering from mental
impairment. Procedures of this kind are common in State and Territory court proceedings
and are similar to proceedings before a service tribunal under the Defence Force Discipline
Act 1982, as provided by section 145A of that Act. This will ensure that the DMP gets notice
of the relevant matter before trial so that the issue can be properly tested at trial. The accused
person is also required to provide copies of any reports prepared by expert witnesses, which
the accused person proposes to call at the trial. These are the only circumstances in which an
accused person is required to disclose details of a proposed defence.
179. The pre-trial disclosure provisions have two purposes. The first is to ensure that the
accused person knows the case against them and has access to any unused material which is
potentially relevant to responding to that case. The second is to ensure, as far as possible, that
any matters and facts which are not in dispute are identified in advance of the trial so that the
trial can concentrate on matters which are genuinely in dispute.
Clause 77 - Disclosure of case for the prosecution
180. This clause outlines what the DMP must disclose if the Military Court makes an order
under clause 76. However, the list of matters in this clause is not exhaustive. The notice of
the prosecution's case can include other matters. This clause is modelled on section 23CE of
the Federal Court of Australia Act 1976.
181. The DMP must provide a notice of the prosecution's case, which includes an outline
that sets out the facts, matters and circumstances on which the case is based. The DMP must
provide copies or access to the material it intends to rely on. The DMP must also disclose
any material which it does not intend to use but which is potentially relevant to the case of the
accused person or that might adversely affect the reliability or credibility of a prosecution
witness. The DMP can meet these obligations in relation to unused material by giving copies
of the material to the accused person or by giving the accused person details of the material
which are sufficient to enable the accused person to determine if it wants to see the material.
The latter procedure may be used if the relevant material is voluminous or sensitive. If the
accused person asks for access, a decision can be made on whether to allow access and, if so,
in what form. If necessary, the DMP can seek a direction from the Court.
182. The DMP must also provide a list of any material that is not in his or her possession
but which the Director reasonably believes may be relevant to the accused person's case. The
DMP must also provide a copy of any information, document or other thing that is adverse to
the accused person's credit or credibility.
183. In most cases the DMP will already have disclosed part or all of this material to the
accused person. Clause 80 makes it clear that information which has already been disclosed
does not have to be disclosed a second time.
184. This clause is designed both to ensure that as many issues as possible are resolved at
the pre-trial stage and that the DMP makes full and proper disclosure to the accused person of
material that it does not rely on but which has the potential to help the accused person. It does
not impose an obligation on the DMP to speculate about what defences the accused person
may plan to run. The obligation in relation to unused material is to disclose information,
documents or things in the possession of the DMP that the Director reasonably believes may
be relevant to the accused person's case. Material relevant to the accused person's case is
35
evidence that is capable of undermining the prosecution's case and/or assisting the accused
person's case. The clause does not require the DMP to consider fanciful or unrealistic
defences that the accused person may want to run.
Clause 78 - Copies of things need not be provided if impractical etc.
185. This clause is modelled on section 23CI of the Federal Court of Australia Act 1976.
It makes it clear that a party does not have to provide a copy of a thing under the disclosure
regime if it is unlawful, impossible or impracticable to provide a copy. However, under
subclause (2), the party must allow the other party a reasonable opportunity to inspect the
thing.
186. This clause will apply if, for example, an exhibit cannot be easily copied, not easily
obtained, or to obtain or access the exhibit would be dangerous or if it would be an offence
for the other party to possess a copy. As offences heard by the Military Court may arise from
operational situations, provision of safe access to information or things may be a pertinent
consideration in the operation of this clause.
Clause 79 - Personal details need not be provided
187. This clause protects personal details of potential prosecution witnesses. It is modelled
on section 23CJ of the Federal Court of Australia Act 1976.
188. Subclause (1) provides that nothing in the disclosure regime requires the DMP to
disclose the address or telephone number of a witness or other living person, unless that
information is relevant to the issues in the trial or the Military Court makes an order directing
disclosure. Subclause (2) provides that the Military Court must not make an order for
disclosure unless it is satisfied that the accused person has a legitimate need for the
information and that, if the disclosure is likely to present a risk to a person's safety or welfare,
the accused person's need for the information outweighs that risk.
189. Subclause (4) gives the DMP authority to delete these details, or render them illegible,
before providing material to the accused person.
190. This clause recognises that there may be cases where potential prosecution witnesses
may be at risk of intimidation and that, in most cases, the accused person does not need
personal details of this kind to prepare for trial.
191. Subclause (3) provides that the clause does not prevent the disclosure of an address if
the disclosure does not identify it as a particular person's address or if it could not reasonably
be inferred from the matters disclosed that it is a particular person's address.
192. When a witness gives evidence at trial, the Military Court will have power under
clause 167 to make any orders that may be needed to protect the witness.
Clause 80 - Things need not be disclosed to a party more than once
193. This clause is modelled on section 23CK of the Federal Court of Australia Act 1976.
It makes it clear that a party does not have to disclose anything under the disclosure regime
which has already been disclosed, either during the proceeding or any proceeding relating to a
service offence founded on alleged facts that are the same or substantially the same as those
for a service offence being prosecuted in the current proceeding.
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Clause 81 - Consequences of disclosure requirements
Orders to ensure non-compliance does not unfairly affect the other party
194. This clause is modelled on section 23CM of the Federal Court of Australia Act 1976.
It deals with sanctions if a party fails to comply with its obligations under the disclosure
regime. It provides an incentive for both parties to cooperate with the Military Court to
resolve as many issues as possible at the pre-trial stage.
195. A disclosure regime is only likely to work effectively if the parties are prepared to
cooperate and the Military Court is prepared to make orders to support compliance. The
DMP will normally have an incentive to comply with disclosure obligations, because of the
risk that the Military Court may not allow the trial to proceed but the accused person may not
have the same incentive. The accused person may, in fact, be concerned that complying even
with limited obligations that are imposed on an accused person has the potential to prejudice
their position at trial. This clause gives the Military Court a range of powers to encourage
compliance and imposes a range of potential sanctions that can be imposed if a party does not
comply.
196. Subclause (1) provides that the Military Court may make such other orders as it thinks
appropriate in the circumstances in relation to a party's failure to comply with an order under
clause 76. This might include any or all of the following orders:
· that evidence not be admitted
· that a party not be allowed to call an expert witness
· that a party be allowed to tender a statement or other document as evidence of its
contents
· that the accused person not be able to take issue with a fact, matter or circumstance,
and
· grant an adjournment to a party.
197. Subclause (2) provides that the Military Court must ensure that any order it may make
under this clause does not result in an unfair trial.
Certain evidence cannot be adduced at trial unless there is earlier disclosure
198. Subclauses (3) and (4) confirm that the accused person must seek the leave of the
Military Court to adduce evidence in relation to an alibi or mental impairment if the accused
person has failed to provide notice of particulars to the DMP (subclause 76(3) requires the
accused person to tell the DMP that they intend to produce supporting evidence of alibi or
mental impairment and to provide notice of particulars prepared in accordance with the
Military Court Rules).
Clause 82 - Restricting further disclosure of disclosed material
199. This clause is modelled on section 23CN of the Federal Court of Australia Act 1976.
It restricts the things that can be done with material that is disclosed under the disclosure
37
regime. This is an important provision designed to protect persons whose rights and interests
may be prejudiced by material released under the disclosure provisions.
200. The clause applies to material disclosed by either party. The clause refers to such
material as `protected material'.
201. Subclause (2) makes it an offence for a person who has access to protected material
(described as an `entrusted person') to disclose the material to another person. The maximum
penalty is imprisonment for 2 years.
202. Subclause (3) sets out a number of exceptions to the prohibition to ensure that the
protected material can be used for appropriate purposes and that the protection does not apply
too widely. They are that the disclosure is for the purposes of the proceedings; the Military
Court has given leave for the disclosure; the disclosure happens for the purposes of, or in
connection with, the performance of the duties of the entrusted person's official employment;
or the material has been lawfully disclosed in open court by, for example, being adduced in
evidence.
203. A defendant will bear an evidential burden in relation to a matter in subclause (3).
That is appropriate given the practical difficulties that would face the prosecution if it was
required to prove that none of the exceptions applied in a particular case, given the range of
matters covered by the exceptions. The defendant will know why he or she made the relevant
disclosure, and in what circumstances, and should have no difficulty in discharging an
evidential burden if their conduct fell within one of the exceptions.
204. The term `official employment' is defined in subclause (5). It means employment as
the DMP, the Defence Minister, a person appointed by the Governor-General in relation to
the prosecution, a person performing services for any one of those persons, or a person
exercising the powers or performing the functions of the DMP.
Clause 83 - Restricting admissibility of disclosed material as evidence in other
proceedings
205. This clause is modelled on section 23CO of the Federal Court of Australia Act 1976.
It limits the use which can be made of material that has been disclosed under the disclosure
regime. It protects the position of an accused person who discloses prejudicial information
and of a person whose rights may be affected if information disclosed by the DMP can be
used in evidence.
206. Subclause (1) gives the Military Court power to order that some or all of the material
is not admissible in any court or before a person authorised to hear evidence. A party can
apply for an order under subclause (1) at the time it discloses material or a later time.
207. Subclause (2) provides that a subclause (1) order will cease to have effect if, during
the primary proceedings, the material is lawfully disclosed in open court.
208. Subclause (3) modifies the operation of the clause. It gives the Military Court power
to set aside or vary an order made under subclause (1), and allow material to be used in later
proceedings, if the Military Court is satisfied that it is in the interests of justice to do so. An
application for an order under subclause (3) can be made by any interested person. That term
is not defined. It covers any person who can satisfy the Military Court that they have an
38
interest in having the order set aside or varied. It may, for example, be the DMP who wants
to use the material in a later prosecution, or it may be a party in civil proceedings who wants
to use the material to establish a civil claim.
209. If there is an application under subclause (3) the Military Court will balance the public
interest in allowing the material to be used in evidence against the public interest in ensuring
that a person does not suffer undue prejudice because material that would otherwise be
confidential has been disclosed under the disclosure regime.
210. Subclause (4) provides that, before making an order under subclause (3), the Military
Court may direct that notice of the application for the order be given to such persons as it
thinks fit or be published in such manner as it thinks fit, or both. That provision is needed
because an application for an order under subclause (3) may relate to material that affects the
rights of a person who is not a party to the later proceedings.
211. It is possible, for example, that a party to a civil action may want to use material that
was disclosed by the DMP in an earlier proceeding. The Military Court may consider that the
DMP should be given an opportunity to make submissions before deciding whether to allow
the material to be used in the civil proceedings.
Clause 84 - Objecting to charges
212. This clause is modelled on section 23CP of the Federal Court of Australia Act 1976.
Subclause (1) sets out the grounds on which an accused person may object to a charge in a
charge sheet. They are: a formal defect apparent on the face of the charge sheet, the Military
Court lacks jurisdiction, autrefois acquit (previously acquitted for the same offence), autrefois
convict (previously convicted of the same offence), or a pardon.
213. The note to subclause (1) clarifies that the effect of clause 75 is that the objection
must be raised during a pre-trial hearing unless the Military Court allows otherwise.
214. Subclause (2) sets out the things the Military Court can do if it upholds an objection to
a charge in a charge sheet. They include dismissing the count in relation to the accused
person, discharging the accused person in relation to the count, and making such other orders
as it thinks appropriate including, for example, orders in relation to bail and custody.
215. Subclause (2) also provides that the Military Court can make an order allowing the
charge to be amended if the objection relates only to a formal defect apparent on the face of
the charge sheet.
Division 5 - Matters relating to pleas, the trial and verdicts
Clause 85 - Practice and procedure applicable to the trial
216. This clause is modelled on section 23FB of the Federal Court of Australia Act 1976.
It provides that the rules of practice and procedure that apply at trial are those in force at the
time the charge is referred to the Military Court, or those in force at another time if the
Military Court so orders.
217. The effect is that if a procedural rule changes after a charge sheet has been referred,
the Military Court will apply the old procedure and not the new one at a trial unless it makes
an order to the contrary. The Military Court may make an order to the contrary if, for
39
example, a change to a procedural rule has the potential to benefit the accused person or to
shorten a trial in a way that does not significantly affect the accused person.
218. This clause ensures that an accused person will not suffer prejudice if changes are
made to a procedural rule after a charge sheet has been filed and proceedings have
commenced before the Military Court.
Clause 86 - Entering pleas
219. This clause is modelled on section 23FD of the Federal Court of Australia Act 1976.
Subclause (1) provides that the accused person may enter a plea of guilty, or not guilty, to a
charge in the charge sheet.
220. The effect of subclause (2) is that the accused person is taken to have entered a plea of
not guilty if the accused person fails to enter a plea when directed by the Military Court. An
accused person who says nothing will have failed to enter a plea.
221. Subclause (3) makes it clear that an accused person may both enter a plea to a charge
and object to the charge. The fact that an accused person pleads not guilty to a charge in a
charge sheet does not mean the accused person is taken to have accepted that the charge is
legally valid or effective.
Clause 87 - Pleading to some charges in satisfaction of other charges
222. This clause provides that it is open to the DMP and the accused person to agree that
the accused person will plead guilty to some charges in the charge sheet and the DMP will
accept the plea in satisfaction of all charges in the charge sheet. In that situation, the charge
is taken to be amended so that no other charge in the charge sheet covers the accused person.
223. The effect is that the plea of guilty can be accepted by the Military Court without need
to amend the charge and, if the plea is accepted, the Military Court will not have to make any
orders in relation to the outstanding charges in the charge sheet.
Clause 88 - Pleading to different service offences capable of being supported by charge
included in charge sheet
224. Subclause (1) ensures that it is open to the DMP and the accused person to agree that
the accused person will plead guilty to a charge of a service offence that is not specified in the
charge sheet and the DMP will accept the plea in satisfaction of the charge. That can be done
without amending the charge sheet if the matters alleged in the charge sheet can support an
allegation that the accused person committed the other service offence. The Military Court
will also need to have jurisdiction to try the person for the other service offence.
225. Subclause (2) provides that, for the purposes of the Bill, the charge sheet is taken to
have always included a charge against the accused person for the service offence.
226. If the accused person proposes to enter a plea of guilty to a service offence that cannot
be supported by the matters alleged in the charge sheet, the DMP will need to amend the
charge sheet under clause 74 to include a charge for the service offence.
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Clause 89 - Changing pleas
227. This clause provides for changing of pleas by an accused person. It is modelled on
section 23FG of the Federal Court of Australia Act 1976.
Accused person may change plea
228. Subclause (1) provides that an accused person may change his or her plea in
accordance with this clause.
Changing plea to guilty
229. Under subclause (2), an accused person who has entered a plea of not guilty in
relation to a charge in the charge sheet, can change the plea to guilty. The Military Court has
power under clause 91 to reject the change of plea in the interests of justice.
Changing plea to not guilty
230. Under subclause (3) an accused person who has entered a plea of guilty in relation to a
charge in the charge sheet can only change the plea to not guilty if the Military Court gives
leave. The Military Court will need to be satisfied that there are good reasons why the
accused person should be allowed to change a plea from guilty to not guilty. However, there
may be a basis for changing a plea if, for example, a court delivers judgment in another case
which shows that the accused person pleaded guilty on the basis of a mistaken view of the
law. The Military Court can grant leave at any time before the Military Court imposes a
sentence on the accused person in relation to an offence.
231. Subclause (4) applies if the accused person is given leave to change a plea from guilty
to not guilty. The Military Court must direct that the accused person be put on trial in relation
to the charge and can make such orders as to pre-trial matters as it thinks appropriate.
232. The Military Court will be able to make orders under Division 4 to ensure that there is
a pre-trial process before the matter goes to trial.
Clause 90 - Military Court's verdict if no case to answer
233. This clause is modelled on section 23FH of the Federal Court of Australia Act 1976.
It gives the Military Court power to rule that there is no case to answer for a charge in the
charge sheet after the close of the DMP' case and before the Military Court delivers its
verdict for the charge. If the Military Court finds the accused person has no case to answer in
relation to a charge the Military Court must enter a judgment of acquittal and discharge the
accused person in relation to that charge.
Clause 91 - Consequences of guilty pleas and guilty verdicts
234. This clause provides for the consequences of guilty pleas and guilty verdicts in the
Military Court. It is modelled on section 23FJ of the Federal Court of Australia Act 1976.
Guilty pleas
235. Subclause (1) provides that if the accused person pleads guilty, either from the outset
or by way of change of plea, the Military Court must accept the plea unless either it gives
41
leave to the accused person to change the plea to not guilty or it would be contrary to the
interests of justice to accept the plea of guilty. The latter situation may arise if, for example,
the Military Court is satisfied that the accused person does not understand the consequences
of the plea.
236. Subclause (2) provides that if the Military Court does not accept a plea of guilty the
plea has no further effect and the accused person is taken to have entered a plea of not guilty
to the charge.
Consequences of guilty verdict or acceptance of guilty plea
237. Subclause (3) applies if the Military Court accepts a plea of guilty for a charge in the
charge sheet. The Military Court is taken to have found the charge proven in relation to the
accused person and the accused is taken to be convicted of the service offence covered by the
charge. There is no need for the Military Court to formally announce that the accused person
has been convicted.
238. Subclause (4) applies if the Military Court finds an accused person guilty of a service
offence covered by a charge in the charge sheet or a plea of guilty is accepted for a charge in
the charge sheet in relation to an accused person. The Military Court must proceed to
sentence the accused person in relation to the service offence, although it can adjourn the
proceedings before doing so. If the charge has an alternative offence included in the charge
sheet in relation to the accused person, the Military Court must discharge the accused in
relation to the charge of the alternative offence.
239. Subclause (5) applies if the accused person is subsequently given leave to change a
plea of guilty to a plea of not guilty. The charge is taken not to have been found proven and
the accused person is taken not to have been convicted. The Military Court must cease any
relevant sentencing proceedings to the extent that those proceedings relate to the plea of
guilty and any alternative counts on the charge sheet will be taken not to have been
discharged.
240. Subclause (6) provides that paragraphs (3)(b) and (4)(a) do not apply where the
Military Court makes an order under section 19B of the Crimes Act 1914 in relation to an
accused person. Section 19B of the Crimes Act 1914 provides that, in appropriate
circumstances, a court can deal with a matter without proceeding to conviction.
Paragraph (3)(b) deems an accused person to have been convicted of a service offence where
a plea of guilty is accepted by the Military Court. Paragraph (4)(a) requires the Military
Court proceed to sentence the accused person in relation to the service offence if the Military
Court finds an accused person guilty of a service offence covered by a charge in the charge
sheet or a plea of guilty is accepted for a charge in the charge sheet in relation to an accused
person. Subclause (6) has the effect of removing the deemed conviction of an accused person
who has entered a plea of guilty in circumstances where the Military Court has ordered that
no conviction need be recorded.
241. The note to the subclause clarifies that the Military Court may make an order under
section 19B of the Crimes Act 1914.
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Clause 92 - Consequences of not guilty verdicts
242. This clause is modelled on section 23FK of the Federal Court of Australia Act 1976.
It provides that, if the Military Court finds an accused person not guilty of a service offence
covered by a charge in the charge sheet, the Military Court must acquit and discharge the
accused person in relation to the charge.
Part 6 - Appellate jurisdiction of the Military Court
243. Part 6 of the Bill establishes the appellate jurisdiction of the Military Court. This Part
is modelled on Division 2A of Part III of the Federal Court of Australia Act 1976. Division 2
of Part 6 deals with matters relating to bringing appeals and the constitution of the Military
Court in exercising its appellate jurisdiction. Division 3 of Part 6 sets out the powers which
the Military Court has in the exercise of its appellate jurisdiction. Division 4 of Part 6
provides for cases to be stated and questions to be reserved for consideration by the Full
Court and other matters.
Division 1 - Introduction
Clause 93 - Guide to this Part
244. This clause sets out a guide to Part 6 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
Division 2 - Bringing appeals
Clause 94 - Allowable appeals
245. The right to appeal has been a recognised feature of previous military justice systems
within the ADF.
246. This clause provides that the Military Court has jurisdiction to hear and determine
appeals from judgments or decisions of the Military Court constituted by a single Judge or a
Federal Magistrate exercising the original jurisdiction of the Military Court. The Court's
original jurisdiction may be exercised by Federal Magistrates in the General Division or
Judges in the Appellate and Superior Division (clause 52).
247. This clause also provides that the Military Court has jurisdiction to hear and determine
appeals from judgments of the Military Court under Part 8 (which deals with custody). This
may include appeals from orders of the Military Court for the forfeiture of securities provided
for an accused person's bail (clause 129).
Clause 95 - Leave to appeal
248. This clause is modelled on section 30AB of the Federal Court of Australia Act 1976.
It provides that an appeal cannot be brought from a decision of the Military Court at first
instance unless the Full Court or a Judge gives leave to appeal or the appeal involves a
question of law alone or relates to bail.
249. The requirement for leave to appeal is designed to ensure that the Military Court's
time is devoted to consideration of meritorious appeals. An appeal that involves a question of
43
law alone does not normally take as long to resolve as one that requires the Military Court to
consider matters of fact and to review evidence.
Clause 96 - Who may appeal
Appeal by accused person
250. This clause is modelled on section 30AC of the Federal Court of Australia Act 1976.
It provides that the accused person can apply for leave to appeal or bring an appeal in relation
to a judgment or decision referred to in clause 94, as appropriate.
Appeal by Director of Military Prosecutions
251. This clause provides that the DMP can apply for leave to appeal or bring an appeal in
relation to a judgment or decision referred to in clause 94, as appropriate, except in relation to
a judgement that acquits the accused person or an order that the person is unfit to be tried, or
a judgment that acquits the accused person on the basis of mental impairment at the time of
committing the service offence.
252. This clause has the effect that the DMP will not be able to appeal an acquittal of an
accused person. The DMP will, however, have the ability to refer a question of law arising
from a trial that resulted in an acquittal to the Full Court for its determination, but that
determination will not affect the acquittal itself (see clause 112).
Clause 97 - Time for appealing
253. This clause is modelled on section 30AF of the Federal Court of Australia Act 1976.
It sets the time limits in which a notice of appeal or an application for leave to appeal must be
filed.
254. Subclause (1) clarifies that the clause applies to the filing of an application of leave to
appeal under paragraph 105(a), a notice of appeal under paragraph 105(a) for an appeal
involving a question of law alone, or a notice of appeal under paragraph 105(b) in relation to
a judgement or decision of the Military Court. Clause 94 provides for allowable appeals to
the Military Court.
255. Subclause (2) provides that the application for leave to appeal, or the notice of appeal
before the end of 30 days, and clarifies when time starts running. A party will have 30 days
in which to apply for leave to appeal, or to file a notice of appeal (if they do not need leave).
However, in the case of appeal against conviction, the effect of subclause (2) is that the 30
days will not start running until the accused person is sentenced. This recognises that an
accused person who has been convicted may want to focus on the sentencing proceedings
before they focus on whether there are grounds to appeal against conviction. In the case of an
appeal against acquittal, in the limited cases where an appeal is possible, the 30 days will start
running from the day the accused person is discharged. Where the appeal is in relation to bail
or an interlocutory judgment, the 30 days will start running from the day the judgment or
decision was made.
256. Time limits will apply in relation to each application specified in the clause.
257. Subclause (3) gives the Military Court power to extend time if it is satisfied that it is
in the interests of justice to do so.
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Clause 98 - Exercise of appellate jurisdiction
258. This clause is modelled on section 30AE of the Federal Court of Australia Act 1976.
259. Subclause (1) provides that an appeal from a judgment or decision of a single Judge
must be heard by a Full Court. Subclause (2) provides that an appeal from a judgment or
decision of a single Federal Magistrate must be heard by a Full Court or, if the Chief Justice
considers it appropriate, a single Judge. This clause is modelled on a similar provision in
section 11(4) of the Victorian Supreme Court Act 1986 which provides for giving discretion
to the Chief Justice to have some appeals to the Full Court heard by a single Judge.
260. Subclause (3) provides that these requirements for exercise of appellate jurisdiction in
subclauses (1) and (2) have effect subject to additional requirements in subclauses (4) and (6).
261. Subclause (4) applies to an application for: leave to appeal, an extension of time to file
a notice of appeal or apply for leave to appeal, leave to amend grounds of appeal or for the
stay of an order made by a Federal Magistrate. Any of these applications must be heard and
determined by a single Judge unless the Judge directs that the application be heard and
determined by a Full Court; or the application is made in a proceeding that has already been
assigned to a Full Court, and the Full Court considers it is appropriate for it to hear and
determine the application.
262. Subclause (5) deals with applications for a range of ancillary orders including an
interlocutory order pending, or after, the determination of an appeal to the Military Court; an
order that an appeal be dismissed for want of prosecution or failure to comply with a direction
of the Court; or an order for directions about the conduct of an appeal. Subclause (6)
provides that any of these applications must be heard and determined by a single Judge unless
the Judge directs that the application be heard and determined by a Full Court; or the
application is made in a proceeding that has already been assigned to a Full Court, and the
Full Court considers it is appropriate for it to hear and determine the application.
263. Subclause (7) provides that the Rules may make provision enabling applications to be
dealt with without an oral hearing, either with or without the consent of the parties.
Clause 99 - Stay of proceedings and suspension of orders
264. This clause is modelled on section 30AK of the Federal Court of Australia Act 1976.
Subclause (1) gives power to the Military Court to make an order to stay or otherwise affect
the operation or implementation of an order arising from a decision which is the subject of an
appeal. The order can be made on such conditions, if any, as the Military Court thinks fit.
265. Subclause (2) makes it clear that this clause does not affect the operation of any other
Act or the Military Court Rules in relation to the stay or suspension of orders.
Clause 100 - Right to attend
266. This clause is modelled on section 30AG of the Federal Court of Australia Act 1976.
It gives a party to an appeal, including the accused person, a right to be present at the hearing
of the appeal unless the Military Court orders otherwise; or the Military Court directs or
allows the party to appear by way of video link, audio link or other appropriate means. This
clause recognises that there may be problems in allowing an accused person to attend a court
45
hearing in person if, for example, the appeal is an appeal against inadequate sentence and the
accused person is in custody.
Clause 101 - Practice and procedure applicable to the appeal
267. This clause is modelled on section 30AH of the Federal Court of Australia Act 1976.
It provides that the rules of practice and procedure that apply during an appeal are those in
force at the time the notice of application for leave to appeal was filed. Alternatively, if there
is no need for leave, then those rules of practice and procedure in force when the notice of
appeal was filed will apply, or those in force at another time if the Military Court so orders.
268. The effect is that if a procedural rule changes after the appeal process has commenced,
the Military Court will apply the old procedure and not the new one during the appeal unless
it makes an order to the contrary. The Military Court may make an order to the contrary if,
for example, a change to a procedural rule has the potential to benefit the accused person.
269. This clause ensures that an accused person will not suffer prejudice if changes are
made to a procedural rule after the appeal process has commenced.
Clause 102 - Evidence on appeal
270. This clause is modelled on section 30AI of the Federal Court of Australia Act 1976.
Subclause (1) provides that, when considering an appeal, the Military Court must have regard
to the evidence given in the proceedings out of which the appeal arose and may draw
inferences of fact from that evidence.
271. Subclause (1) also provides that the Military Court can receive further evidence if
satisfied that it is in the interests of justice to do so and can receive that further evidence on
affidavit; by video link, audio link or other appropriate means permitted under Division 5 of
Part 11 or permitted under another Commonwealth law; or by oral examination before the
Court or a Judge. This does not compel the Military Court to receive further evidence in a
matter. The Military Court may decline to receive further evidence if, for example, the
failure to adduce the evidence during the trial is not satisfactorily explained.
272. Subclause (2) provides that if the Military Court decides to receive further evidence
by oral examination, the Military Court can direct that the evidence be taken by a single
Judge and can have regard to the findings of that Judge in relation to that evidence.
Clause 103 - Prison sentence does not include time on bail
273. This clause is modelled on section 30AL of the Federal Court of Australia Act 1976.
It makes it clear, for the avoidance of doubt, that if a person who has been convicted and
sentenced to a term of imprisonment appeals and is released on bail pending the
determination of the appeal, time spent on bail does not count as part of the term of
imprisonment to which the person has been sentenced.
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Division 3 - Powers of Military Court on appeal
Clause 104 - Military Court may give such judgment as is appropriate
274. This clause is modelled on section 30BA of the Federal Court of Australia Act 1976.
It gives the Military Court general power to dismiss or allow an appeal and to take such other
action as it thinks appropriate in the circumstances when exercising its appellate jurisdiction.
275. Clauses 105 to 108 provide examples of orders the Military Court can make when it
upholds an appeal. Those examples are included to avoid doubt that the orders which can be
made do not restrict the general power of the Military Court under this clause.
Clause 105 - When to allow appeals
276. This clause is modelled on section 30AJ of the Federal Court of Australia Act 1976.
It sets out the criteria that must be satisfied before the Military Court can uphold different
types of appeal.
Appeals against conviction
277. Subclause (1) provides that the Military Court must allow an appeal against
conviction if the Military Court is satisfied that there was a wrong decision of any question of
law or that there has been a substantial miscarriage of justice.
278. However, subclause (2) provides that the Military Court may dismiss an appeal on the
first of these grounds if the Court is satisfied that there has not been a substantial miscarriage
of justice. This ensures that a conviction will not automatically be set aside purely on the
basis of an error or irregularity.
Appeals against sentence
279. Subclause (3) provides that the Military Court must allow an appeal against a
judgment sentencing the accused person if the Military Court is satisfied that some other
sentence (whether more or less severe) is warranted in law. This means that the Military
Court can either decrease or increase a sentence if a party appeals and the Military Court is
satisfied that some other sentence was warranted in law. The Military Court has the power, in
an appropriate case, to increase a sentence even if the accused person has appealed but the
DMP has not. Similarly, the Military Court has the power, in an appropriate case, to decrease
a sentence even if the DMP has appealed but the accused person has not.
Other appeals
280. Subclause (4) provides that the Military Court may allow any other appeal if the
Military Court is satisfied it is in the interests of justice to do so.
Clause 106 - Allowing appeals against convictions
281. This clause is modelled on section 30BB of the Federal Court of Australia Act 1976.
It provides that, if the Military Court allows an appeal against conviction of a service offence,
it can (among other things) set aside the conviction, acquit the accused person or find the
accused guilty of an alternative service offence (within the meaning of section 142 of the
47
Defence Force Discipline Act 1982). The Military Court does not have to order a new trial if
it allows an appeal against conviction.
Clause 107 - Allowing appeals against sentences
282. This clause is modelled on section 30BC of the Federal Court of Australia Act 1976.
It provides that, if the Military Court allows an appeal against sentence it can (among other
things) increase or decrease the sentence or substitute a different sentence.
Clause 108 - Allowing appeals against bail, bail forfeiture or interlocutory judgments
and decisions (including about custody)
283. This clause is modelled on section 30BG of the Federal Court of Australia Act 1976.
It applies if the Military Court allows an appeal against a judgment in relation to bail, bail
forfeiture or against an interlocutory judgment (including about custody). If the Military
Court allows the appeal it can (among other things) set aside the judgment or decision, vary
the appealed decision, substitute a new judgment or decision, or make orders about custody or
bail. A bail judgment can be varied by, for example, imposing, removing or varying
conditions on which bail was granted.
Clause 109 - Costs
284. This clause provides discretion for the Military Court to award costs of an appeal in
certain circumstances. Clause 58 provides that the Military Court may not otherwise award
costs in proceedings.
285. Subclauses (1) and (2) relate to appeals by an accused person. If the Military Court
allows an appeal by an accused person, the Court has discretion, if it considers appropriate, to
order the Commonwealth to pay to the accused person such amount as the Military Court
considers to be reasonably sufficient to compensate the accused person for expenses properly
incurred by him or her in the prosecution of his or her appeal and any proceedings
preliminary or incidental to the appeal or in carrying on his or her defence against the charge
or charges out of which the appeal arose.
286. Conversely, if the Military Court dismisses an appeal, or application for special leave
to appeal, by an accused person, the Court has discretion, if it considers it appropriate, to
order the accused person to pay to the Commonwealth the whole or any part of the costs of
the appeal or application.
287. Subclauses (3) and (4) relate to appeals by the DMP. If the Military Court allows an
appeal by the DMP, the Court has discretion, if it considers appropriate, to order the accused
person to pay to the Commonwealth the whole or any part of the costs of the appeal.
288. Conversely, if the Military Court dismisses an appeal, or application for special leave
to appeal, by the DMP, the Court has discretion, if it considers it appropriate, to order the
Commonwealth to pay to the accused person such amount as the Military Court considers to
be reasonably sufficient to compensate the accused person for expenses properly incurred by
him or her in responding to the appeal and any proceedings preliminary or incidental to the
appeal or in carrying on his or her defence against the charge or charges out of which the
appeal arose.
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289. Powers to award costs in the Military Court are similar to powers of the Defence
Force Discipline Appeals Tribunal under section 37 of the Defence Force Discipline Appeals
Act 1955 in the interim military justice system, and take into account the extended ability of
appeal of the DMP in the Military Court.
290. Clause 178 provides for the recovery of an amount due and payable under an order
made by the Military Court. This would include an order made under subclauses (2) or (3).
Clause 110 - New trials
291. This clause is modelled on section 30 of the Federal Court of Australia Act 1976. It
gives the Military Court, when granting a new trial on appeal, the power to impose such
conditions on a party as are just and direct such admissions to be made by a party for the
purpose of the new trial.
292. Subclause (2) specifies that, if the Military Court grants a new trial, it may do so
either generally or on particular issues only, as it thinks just, and may order that evidence of a
witness examined at the former trial may be used in the new trial in the manner provided in
the order.
Division 4 - Other matters
Clause 111 - Cases stated and questions reserved
293. This clause is modelled on section 26 of the Federal Court of Australia Act 1976.
Subclause (1) gives a single Judge or a Federal Magistrate of the Military Court the power to
state any case or reserve any question concerning a matter for the consideration of a Full
Court. The matter must be one with respect to which an appeal would lie to the Military
Court.
294. Subclause (2) gives the Full Court jurisdiction to hear and determine the case or
question.
Clause 112 - Questions referred after trial
295. This clause is modelled on section 30CB of the Federal Court of Australia Act 1976.
It gives the DMP the power to bring a precedent appeal where an accused person has been
acquitted on the basis of a ruling of law which the DMP wants to test on appeal. The Full
Court has jurisdiction to hear the appeal, and rule on the legal issue. The ruling will not
affect the person's acquittal but will clarify the legal issue for future cases. In Mellifont v
Attorney-General (Qld) (1991) 173 CLR 289, the High Court held that there is no
Constitutional impediment to a federal court hearing a precedent appeal despite the fact that
the outcome of the appeal will not affect the position of the acquitted person.
296. Subclause (1) provides that the DMP may apply to the Military Court for leave to
refer a question of law to a Full Court for its determination if a judgment of the Military
Court acquits a person following a trial for a service offence.
297. Subclause (2) provides that, if leave is granted, both the DMP and the acquitted
person may make submissions to the Full Court. In some cases, the acquitted person may
take no interest in the proceedings but in others the person may want to make submissions
because they consider that the rulings made at the trial were correct.
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Subclause (3) makes it clear that a determination made by the Military Court on the question
of law does not affect the person's acquittal.
Part 7 - Appeals to the High Court
Clause 113 - Appeals to the High Court
298. This clause is modelled on section 33 of the Federal Court of Australia Act 1976.
Subclause (1) prevents appeals to the High Court from a judgment of a single Judge or
Federal Magistrate of the Military Court in its original jurisdiction. Those appeals may be
heard by the Full Court or a Judge of the Military Court in its appellate jurisdiction
(clause 98).
299. Subclause (2) allows appeals to the High Court from a judgment of a Full Court,
either in the original or appellate jurisdiction of the Military Court, with special leave from
the High Court.
300. Similarly, subclause (3) allows appeals to the High Court from a judgment of a single
Judge exercising the appellate jurisdiction of the Military Court, with special leave from the
High Court.
301. Subclause (4) prevents appeals to the High Court from judgments of a Full Court of
the Military Court exercising the original jurisdiction of the Military Court, if the judgment is
a decision to join or remove a party or to adjourn, expedite or vacate a hearing date or not to
do any of those things.
302. Subclause (5) prevents appeals to the High Court from a judgment of the Military
Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate
jurisdiction, in relation to a range of determinations, decisions and orders specified in
paragraphs (a) to (h).
303. Subclause (6) makes clear that, for the avoidance of doubt, a party may appeal from a
final judgment in proceedings before the Military Court on the basis of an interlocutory
judgment of the Military Court made in the proceeding, even if there has been or can be no
appeal to the High Court from that interlocutory judgment. It also clarifies that the High
Court may take account of the interlocutory judgment in determining the appeal or an
application for special leave to appeal from the final judgment.
304. Where an appeal from the Military Court is brought to the High Court, the jurisdiction
of the High Court in this regard is to be exercised by a Full Court consisting of not less than 3
Justices (subclause (7)).
305. The restricted nature of appeals to the High Court emphasises the role that the
Military Court will have as the exponent of military law.
Part 8 - Custody and Bail
306. The Military Court will have powers to remand an accused person in custody, make
recognizance orders and grant bail from the point when an accused person first appears before
the Military Court. The majority of this Part of the Bill is modelled on Part VIB of the
Federal Court of Australia Act 1976.
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307. There is no provision for the Military Court to make an order dispensing with bail.
The Military Court may grant bail but not impose conditions other than a condition to appear.
Division 1 - Introduction
Clause 114 - Guide to this Part
308. This clause sets out a guide to Part 8 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
Division 2 - Custodial matters
Clause 115 - Arrangements for accused person if proceedings adjourned
309. This clause is modelled on section 15 of the Crimes Act 1914. It gives the Military
Court power to remand an accused person in custody for such period as the Military Court
considers necessary, where a proceeding in respect of a charge of a service offence is
adjourned. That can be done if there is no bail order or, if there is a bail order, the accused
person cannot be released on bail by operation of clause 108 (bail undertakings). If an
accused person is remanded in custody it must be by way of a warrant.
310. The Military Court also has the power to order the discharge of the accused person
upon his or her entering into a recognisance conditioned for his or her appearance at the time
and place appointed for continuing the proceeding.
Division 3 - Granting Bail
Clause 116 - Applying for bail
311. This clause is modelled on section 58DA of the Federal Court of Australia Act 1976.
Subclause (1) provides that at any stage during a proceeding in respect of the charge of a
service offence (including an appeal), the accused person can apply to the Military Court for
bail.
312. Subclause (2) provides that if the Military Court refuses to grant bail to the accused
person for a service offence, the accused cannot apply again for bail for the service offence
unless there has been a significant change in circumstances since the refusal. This means that
an accused person who is not satisfied with a decision refusing bail can appeal against that
decision but cannot make a fresh application for bail unless there has been a significant
change in circumstances since the refusal.
Clause 117 - Granting bail
313. This clause is modelled on section 58DB of the Federal Court of Australia Act 1976.
Subclause (1) gives the Military Court the power, by order, to grant bail to the accused person
for one or more service offences. A bail order will normally be for a period specified in the
order. It may, for example, require the accused person to appear before the Military Court on
a specified day or on the occurrence of a specified event such as the day notified by the
Military Court as the day when a trial has been listed to commence.
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314. Subclause (2) sets out certain matters which the Military Court must consider when
deciding whether to grant bail. This is in addition to the matters set out in section 15AB of
the Crimes Act 1914, which the Military Court must also take into account in this regard. The
relevant matters set out in this Act are:
· whether the accused person will appear in court if bail is granted
· the interests of the accused person
· the protection of any other person
· the protection and welfare of the community, including whether there is a risk that the
accused person will commit offences if bail were granted
· whether there is a risk that the accused person will approach witnesses or attempt to
destroy evidence, and
· the service requirements of the ADF.
Clause 118 - Bail may be granted subject to conditions
315. This clause is modelled on section 58DC of the Federal Court of Australia Act 1976.
Subclause (1) provides that a bail order may be made unconditionally or subject to one or
more specified conditions.
316. Subclause (2) sets out a non-exclusive list of conditions that can be imposed. They
are:
· the accused person reside at a specified place
· the accused person report to a specified person at a specified place at a specified time
or times
· the accused person surrender any passport held by the accused and agree not to
approach a point of international departure
· the accused person provide security in the form of money, or other property, for
forfeiture if the accused fails to appear before the Military Court in accordance with
the accused's bail undertaking, and
· one or more other specified persons provide security in the form of money, or other
property, for forfeiture if the accused person fails to appear before the Military Court
in accordance with the accused's bail undertaking.
317. Subclause (3) provides that money or other property deposited with the Military Court
or otherwise provided as security must be dealt with by the Military Court in accordance with
the Military Court Rules.
Clause 119 - Bail to be stayed pending appeal
318. This clause is modelled on section 58DD of the Federal Court of Australia Act 1976.
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319. Subclause (1) applies if the Military Court makes a bail order and the DMP requests
the Military Court to stay the bail order pending appeal. The effect of the clause is to stay the
bail order for 48 hours in these circumstances so that the accused person will be remanded in
custody.
320. Subclause (2) provides for the stay of the bail order to continue if a notice of appeal
from the bail order is filed within the initial 48 hours provided under subclause (1). If the
stay of the bail order continues under subclause (2), it will continue until the first occurring of
the circumstances listed in paragraphs (a), (b) or (c) being that:
· the appeal is finally disposed of
· the DMP withdraws the appeal in accordance with the Military Court Rules, and
· Full Court Orders, under subclause (2), that the stay of the bail order be set aside.
321. The stay of the bail order will cease if the DMP fails to file a notice of appeal within
48 hours. Ceasing the stay of the bail order will allow the accused person to be released on
bail.
322. Subclause (3) requires an appeal from the making of the bail order to be dealt with as
quickly as possible where the DMP makes a request to stay the bail order pending appeal
under paragraph (1)(b).
323. Subclause (4) requires the Military Court to order remand of an accused person in
custody for the duration of the stay of the bail order. The duration of the stay of the bail order
may vary in accordance with the above subclauses. Subclause (5) provides that an order under
subclause (4) may be signed by any Judge or Federal Magistrate, the Registrar or any Deputy
Registrar of the Military Court.
324. This clause provides for a mechanism through which an accused person can remain in
custody if there is a flight risk and there is a genuine question about whether bail should have
been granted. It is expected that the DMP would use this provision rarely.
Clause 120 - Bail undertakings etc.
325. This clause is modelled on section 58DE of the Federal Court of Australia Act 1976.
Subclause (1) provides, for the avoidance of doubt, that if the Military Court grants bail to the
accused person, the accused can only be released on bail if the accused has signed a bail
undertaking in the required form, any third party surety has signed an undertaking in the
required form and any security that is required to be deposited has been deposited.
326. Subclause (2) sets out the things that must be included in a bail undertaking given by
an accused person. They are:
· an undertaking by the accused person to appear in person before the Military Court in
accordance with the bail order and to promptly notify the Military Court if the accused
person changes his or her residential address, and
· an undertaking by the accused person to comply with the specified conditions, if any,
on which bail has been granted.
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327. Subclause (3) provides that a bail undertaking, and any third party security
undertaking, must be expressed to cover the period for which bail was granted and each
period for which bail may be continued. If bail is continued, all relevant undertakings will
continue in force even if one or more of them is expressed to apply for a limited time and that
time has expired.
328. Subclause (4) provides that the Registrar must cause the parties to be given a copy of
the accused person's bail undertaking and any third party security undertaking made in
relation to the accused's bail. This provision resolves any doubt about whether the DMP is
entitled to a copy of the relevant undertakings.
Clause 121 - Effect of granting bail
329. This clause is modelled on section 58DF of the Federal Court of Australia Act 1976.
Subclause (1) provides that if an accused person is released on bail under Part 8, the accused
person is entitled to be at liberty in respect of the service offence in accordance with the
accused's bail undertaking. However, this does not mean the accused person must be
released if he or she is being held in custody for some other service offence.
330. Subclause (2) notes that subclause (1) is subject to a stay under clause 107. If an
order is made under clause 107 that stays a bail order pending appeal, the accused person is
not entitled to be released on bail while that order is in force.
Clause 122 - Seeking discharge from undertaking to give security
331. This clause is modelled on section 58DG of the Federal Court of Australia Act 1976.
Subclause (1) gives a person who has provided a third party security undertaking the right to
apply to the Military Court to be discharged from liability under the undertaking.
332. Subclause (2) provides that, if there is an application and the accused person has not
already failed to appear before the Military Court in accordance with the accused person's
bail undertaking, the Military Court must direct that the person be discharged from his or her
liability, unless satisfied it would be contrary to the interests of justice to do so. This
constitutes a mechanism for a person who has provided a third party security undertaking to
withdraw it if, for example, they are no longer confident that the accused person will answer
bail.
333. If the accused person has already failed to appear before the Military Court in
accordance with the accused's bail undertaking, it will be too late for a third party to apply to
be released from their security.
334. If the Military Court releases a third party from their security this will trigger a
reconsideration of the accused person's bail under Division 4, in which event the accused
must be brought before the Military Court.
Clause 123 - Dealings with property given as security for bail
335. This clause is modelled on section 58DH of the Federal Court of Australia Act 1976.
This clause makes it an offence for a person who has signed a bail undertaking or a third
party security undertaking, and who has undertaken to forfeit security other than money if the
accused person does not appear before the Military Court, to dispose of or otherwise deal
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with that security with the intention of preventing the forfeiture of the security, or to destroy
the security, or to reduce its value. The maximum penalty is imprisonment for 2 years.
Division 4 - Reconsidering bail orders
Clause 124 - Reconsidering bail--discharge of security or accused person fails to
comply with bail undertaking
336. This clause is modelled on section 58EA of the Federal Court of Australia Act 1976.
It applies if the Military Court gives a direction that releases a third party from a security
undertaking or if the DMP applies for a bail order to be varied or revoked on the basis that the
accused person has failed to comply with a bail undertaking.
337. Subclause (2) provides that the Military Court must cause the accused person to be
brought before the Military Court in accordance with the Military Court Rules.
338. In a case where the accused person failed to appear before the Military Court in
accordance with the accused's bail undertaking, the DMP may also be able to commence
forfeiture proceedings under clause 128.
339. Subclause (3) gives the Military Court power to vary or revoke the bail order.
340. Subclause (4) requires that, in deciding whether to vary or revoke the bail order, the
Military Court must consider the matters set out in subclause 117(2). This means that, if the
Court is deciding whether to vary or revoke bail, it must consider the same matters it would
be required to consider if it was deciding whether to grant bail.
Clause 125 - Reconsidering bail--change in circumstances
341. This clause is modelled on section 58EB of the Federal Court of Australia Act 1976.
Subclause (1) gives the Military Court power to vary or revoke an accused person's bail order
if the Military Court is satisfied that there has been a sufficient change in circumstances since
the making of the bail order. The Military Court must consider the matters set out in
subclause 117(2). This means that, if the Military Court is deciding whether to vary or
revoke bail, it must consider the same matters it would be required to consider if it was
deciding whether to grant bail.
342. Subclause (2) gives the Military Court power to refuse to hear an application for an
order to vary or revoke bail without a hearing if the Military Court is satisfied that the
application is frivolous or vexatious. That may be the case if, for example, an accused person
who has been granted bail but is dissatisfied with the conditions of bail makes repeated
applications for an order varying the conditions which the Military Court is satisfied is
unlikely to succeed.
Clause 126 - Consequences if bail is varied or revoked
343. This clause is modelled on section 58EC of the Federal Court of Australia Act 1976.
Subclause (1) provides, for the avoidance of doubt, that if the Military Court varies the
accused person's bail, the accused can only be released on bail if the accused has signed a
new bail undertaking in the required form, any third party surety has signed a new
undertaking in the required form and any security that is required to be deposited has been
55
deposited. Subclause (1) would not require someone to sign a new security undertaking if,
under the order as varied, it is no longer a condition of bail for that person to provide security.
344. Subclause (2) provides that if the Military Court revokes the accused person's bail, the
Military Court has power to cause the accused to be committed to prison in accordance with
the Military Court Rules.
Division 5 - Further consequences if accused person fails to appear in accordance with
bail undertaking
Clause 127 - Offence for failing to appear before the Military Court
345. This clause is modelled on section 58FA of the Federal Court of Australia Act 1976.
It makes it an offence for an accused person to give the Military Court a bail undertaking and
subsequently fail to appear before the Military Court in accordance with the bail undertaking.
The maximum penalty is imprisonment for 2 years. If an accused person fails to answer bail,
their bail will also potentially be reconsidered under Division 4.
346. Part 2.3 of the Criminal Code Act 1995 provides defences which may apply to a
person who fails to appear before the Military Court in accordance with a bail undertaking. A
defendant bears an evidential burden in relation to those defences. It is appropriate to apply
all the defences under Part 2.3 of the Criminal Code Act 1995 in these circumstances because
of the potential range of reasons why a person might fail to answer bail. Reversal of the onus
of proof on the defendant is consistent with the application of subsection 13.3(3) of the
Criminal Code Act 1995. It is appropriate that the defendant bears the evidential burden for
the reasons that a person has not answered bail, as these matters are within the defendant's
knowledge.
347. It will not be an offence against this clause for an accused person to breach any other
condition of bail other than the requirement to appear before the Military Court when
required to do so under a bail undertaking.
Clause 128 - Notice of proposed forfeiture
348. This clause is modelled on section 58FB of the Federal Court of Australia Act 1976.
It applies if the DMP alleges that an accused person failed to appear before the Military Court
in accordance with the accused's bail undertaking and bail security has been given in the
matter.
349. Subclause (1) gives the DMP power to apply to the Military Court for a direction that
the Registrar give one or more notices inviting a person to show cause why a security should
not be forfeited.
350. Subclause (2) provides that the Military Court may direct the Registrar to give a
notice to each person who provided security for the accused person's bail and any other
person who the Military Court considers may have an interest in security provided for the
accused's bail. However, a failure to give notice to a person does not invalidate a forfeiture
order if the Registrar made reasonable efforts to serve notice.
351. Subclause (3) provides that the notice must invite the person to show cause, by filing
an objection, why the security should not be forfeited and must contain the particulars set out
in the Military Court Rules. Section 29 of the Acts Interpretation Act 1901 and section 160 of
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the Evidence Act 1995 provide for presumptions about when documents or postal articles
have been served, depending on circumstances. There are also provisions dealing with the
service of documents in section 28A of the Acts Interpretation Act 1901.
352. Subclause (4) provides that an application under subclause (1) cannot be made more
than 6 months after the alleged failure to appear before the Military Court. This means that, if
the DMP wants to apply for a forfeiture order on the basis of an alleged failure to answer bail,
the proceedings must commence within 6 months.
Clause 129 - Ordering forfeiture
353. This clause is modelled on section 58FC of the Federal Court of Australia Act 1976.
Subclause (1) provides that the Military Court must order the forfeiture of all specified
security provided by a particular person for the accused person's bail if the Military Court is
satisfied that the accused failed to appear before the Military Court in accordance with the
accused person's bail undertaking.
354. However, under subclause (2) the Military Court may decide not to make a forfeiture
order or reduce the amount of the security to be forfeited if satisfied that the accused person
had a reasonable excuse for failing to appear or it is in the interests of justice to do so. The
burden of proving these matters, to the civil standard of proof, will rest on the person
contesting forfeiture.
355. Subclause (3) requires that, in deciding whether to make a forfeiture order, the
Military Court must consider any objection filed by a person who the Military Court is
satisfied either provided security for the accused person's bail or has an interest in such
security. The Military Court is only required to consider the objection if it was filed within
28 days after the person was given a notice under clause 128 or, if the person was not given
notice, within 28 days of a notice being given to any person under clause 128. The objection
must contain the particulars set out in the Military Court Rules.
356. The Military Court may also invite a person who filed an objection to make
submissions before deciding whether to make a forfeiture order.
357. If more than one person has provided a bail security, the Military Court may make
separate forfeiture orders.
358. A dissatisfied party can appeal against a forfeiture order, or a refusal to make a
forfeiture order, under clause 94.
Clause 130 - When forfeiture orders take effect
359. This clause is modelled on section 58FD of the Federal Court of Australia Act 1976.
Subclauses (1) and (2) have the effect that, unless it is set aside on appeal, a forfeiture order
takes effect at the end of the time for filing a notice of appeal under clause 97 or, if there is an
appeal, when the appeal is finally disposed of. If a forfeiture order is varied on appeal, it will
take effect as varied.
360. Subclause (3) provides that if a forfeiture order takes effect, the Registrar must give
written notice that it has taken effect to the person who provided the security forfeited by the
order and each other person, if any, who objected to the making of the order in relation to that
security.
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Clause 131 - Effect of forfeiture orders
361. This clause provides for the effect of forfeiture orders. It is modelled on section 58FE
of the Federal Court of Australia Act 1976.
Security is money held by the Military Court or property other than registrable property
362. Subclause (1) applies if security specified in a forfeiture order is money deposited
with the Military Court or otherwise provided to the Military Court or is property which is not
money or registrable property. In such cases, the security vests absolutely in the
Commonwealth at the time the order takes effect.
Security is money not held by the Military Court
363. Subclause (2) applies if security specified in a forfeiture order is an amount of money
that has not been deposited with or otherwise provided to the Military Court. In such cases,
the amount is taken to be a civil debt payable by the person who provided the security to the
Commonwealth at the time the order takes effect. The Commonwealth may enforce the
forfeiture order as if it were an order made in civil proceedings against the provider to recover
a debt due by the provider and the debt arising from the order is taken to be a judgment debt.
If the undertaking also specified property to secure payment of the amount, the
Commonwealth may also enforce the undertaking in respect of that property.
Security is registrable property
364. Subclause (3) applies if the security specified in a forfeiture order is registrable
property. Registrable property is defined for the purpose of this clause in subclause (5) (see
below). In such cases, the property vests in equity in the Commonwealth but does not vest in
the Commonwealth at law until the applicable registration requirements have been complied
with. The DMP may, on behalf of the Commonwealth, do anything necessary or convenient
to give notice of, or otherwise protect, the Commonwealth's equitable interest in the property,
for example, registering a caveat. The Commonwealth is entitled to be registered as the
owner of that property and the Military Court may, by order, authorise a person to do, or
authorise the doing of, anything necessary or convenient to obtain the registration of the
Commonwealth as the owner.
365. Subclause (4) makes clear that an order under subclause (3) can authorise a person to
execute any instrument required to be executed by a person transferring an interest in
registrable property.
Meaning of registrable property
366. Subclause (5) defines `registrable property' for the purpose of the clause. It means
property, title to which is passed by registration on a register kept pursuant to a provision of
any law of the Commonwealth or of a State or Territory.
Division 6 - When bail ends
Clause 132 - Continuing bail orders
367. This clause is modelled on section 58GA of the Federal Court of Australia Act 1976.
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368. Subclause (1) gives the Military Court power to direct that a bail order previously
granted continues to have effect. This is an alternative to requiring an accused person to
make a fresh bail application if the accused has answered bail and the DMP does not oppose a
continuation of bail.
369. A direction that bail continues will normally specify a period for which bail continues.
Under subclause 120(3), a bail undertaking, and any third party security undertaking, must be
expressed to cover the period for which bail was granted and each period for which bail may
be continued under subclause (1).
370. Subclause (2) applies if an accused person appears in accordance with a bail
undertaking and the matter is not completed but the Military Court makes no order as to bail.
The Military Court is taken to have made a direction under subclause (1) that the bail order
continue to have effect until the accused person's next scheduled appearance before the
Military Court.
371. This subclause has the effect of allowing for bail to be continued until the next
appearance if, for whatever reason, the Military Court does not make an order for bail. It
clarifies the position in favour of the accused person's right to be at liberty unless the Military
Court orders otherwise as to bail.
372. Subclause (3) provides that, if the Military Court gives a direction for bail to continue,
each of the following continues to have effect, subject to any contrary intention in the
undertaking and to any variation ordered by the Military Court:
· the accused person's bail undertaking, and
· each third party security undertaking made in relation to the accused person's bail.
Clause 133 - Bail discharged if the Military Court discharges the accused
373. This clause is modelled on section 58GB of the Federal Court of Australia Act 1976.
It provides that a bail order ceases to have effect if the Military Court discharges the accused
person in relation to all the service offences for which bail was granted. There is no need in
such cases for the Military Court to formally release the accused person from the bail
conditions.
Clause 134 - Continuing security undertakings when bail ends
374. This clause is modelled on section 58GC of the Federal Court of Australia Act 1976.
It applies if security was provided for the accused person's bail and the accused's bail order is
revoked under clause 124 because of a failure by the accused person to appear in accordance
with the accused's bail undertaking.
375. Subclause (2) provides that, despite the revocation, the accused person's bail
undertaking and each third party security undertaking made in relation to the accused's bail
continue to have effect to the extent to which they relate to the security provided for the
accused person's bail. This provision is needed to ensure that a bail security does not lapse
the moment bail is revoked but remains in force for the time needed to resolve whether the
security should be forfeited.
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376. Subclause (3) provides that the continuation of an undertaking to provide security
ceases if a forfeiture order cannot take effect in relation to the security and the accused
person's failure to appear, or the Military Court orders the continuation to cease.
377. A forfeiture order cannot be made unless an application is made within 6 months of
the relevant breach of bail (subclause 128(4)). Clause 130 sets out when a forfeiture order
takes effect.
Clause 135 - Returning security when bail ends
378. This clause is modelled on section 58GD of the Federal Court of Australia Act 1976.
It provides that the Military Court must return a security which has been lodged with the
Military Court if the accused person's bail order ceases to have effect and the security is not
still in force through the operation of subclause 134(3). This does not apply if the security
has been forfeited under Division 5 or is being held as security in relation to another bail
order.
Division 7 - Other matters
Clause 136 - Admissibility of certain matters
379. This clause is modelled on section 58HA of the Federal Court of Australia Act 1976.
It facilitates the proof of certain formal matters relating to bail. The provisions apply to
proceedings in all courts and proceedings including criminal proceedings for offences relating
to bail and proceedings for the forfeiture of security.
380. Subclause (1) makes the following documents admissible as prima facie evidence of
their contents in all courts and proceedings:
· a bail order
· a bail undertaking
· a third party security undertaking, and
· a notice about change of address given by the accused person to the Military Court.
381. Subclause (2) has the effect that a document referred to in subclause (1) can be proved
by tendering a copy of the document certified by an officer of the Military Court without
further proof or production of the original. A certified copy is to be received in all courts and
proceedings as prima facie evidence of the original's contents.
382. Subclause (3) has the effect that the following matters can be proved on the basis of a
written certificate issued by an officer of the Military Court:
· a condition specified in a bail order has not been varied or has been varied in a
specified way
· a notice was given under subclause 128(2) to a specified person in a specified way on
a specified day
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· an accused person did not appear in person before the Military Court at a specified
place or on a specified day or during a specified period
· the accused person did not notify the Military Court of a change in the accused's
residential address, and
· the accused person notified the Military Court of a change in the accused's residential
address to a specified address and on a specified day.
383. Subclause (4) provides that a certificate under subclause (3) is to be received in all
courts and proceedings as prima facie evidence of the statements in the certificate.
384. Subclause (5) provides that a document purporting to be a certificate under subclause
(3) is taken to be such a certificate and to have been duly given, unless the contrary is
established.
Clause 137 - Indemnifying a person providing security
385. This clause is modelled on section 58HB of the Federal Court of Australia Act 1976.
Subclause (1) makes it an offence for a person who has provided security as a condition of
bail, either as an accused person or as a third party, to agree to be indemnified by another
person against any forfeiture of that security. The maximum penalty is imprisonment for 2
years.
386. Subclause (2) makes it an offence for a person to agree to indemnify another person
against any forfeiture of security provided by that other person as a condition of bail. The
maximum penalty is imprisonment for 2 years.
Part 9 - Sentencing and orders
387. Part 9 of the Bill deals with the sentences and other orders that may be imposed by the
Military Court on a person convicted of a service offence. This Part is modelled on Part IV of
the Defence Force Discipline Act 1982. This will allow consistency in sentencing and the
punishment of service offences across proceedings in the Military Court and service tribunals.
Division 1 - Introduction
Clause 138 - Guide to this Part
388. This clause sets out a guide to Part 9 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
Division 2 - Sentencing principles
Clause 139 - Sentencing principles
389. This clause applies section 70 of the Defence Force Discipline Act 1982 (other than
subsection 70(5) of that Act) in relation to the conviction of a person by the Military Court. It
allows the necessary substitution of references in that section to a service tribunal for
references to the Military Court. This means that the Military Court will use the same
principles of sentencing as those applicable in proceedings before a service tribunal under the
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Defence Force Discipline Act 1982. This will allow consistency in sentencing of service
offences across proceedings in the Military Court and service tribunals.
390. The note to this clause clarifies that the Military Court may make an order under
section 19B of the Crimes Act 1914. Section 19B of the Crimes Act 1914 provides that, in
appropriate circumstances, a court can deal with a matter without proceeding to conviction.
Division 3 - Punishments
Clause 140 - Kinds of punishments that may be imposed
391. This clause is modelled on section 68 of and Schedule 2 to the Defence Force
Discipline Act 1982. Subclause (1) provides that the Military Court may (subject to this
Division) impose one or more punishments on a person who is convicted by the Military
Court of a service offence. The Military Court may also make a good behaviour order in
relation to a person who is convicted by the Military Court of a service offence. The order
may be made instead of, or in addition to, imposing a punishment on the person (see
subsection 20(1) of the Crimes Act 1914).
392. A number of punishments which the Military Court and service tribunals can impose
are unique to the military justice system.
· The effect of the punishment of dismissal is to terminate the member's service in the
ADF. It is imposed in circumstances where a member is convicted of an offence
which by its nature renders the member unfit to continue serving in the ADF.
· The punishment of detention requires the convicted person to serve a period of time in
an ADF detention centre where they undergo a regime intended to restore personal
discipline.
· Reduction in rank can be imposed when the Military Court is satisfied that the
offender, by reason of the offence of which he or she has been convicted, is unfit to
remain in his or her present rank in the ADF. Reduction in rank may be by one or
more ranks and causes the reduced member loss of status, authority, privileges and
financial loss due to lessened salary and entitlements. Reduction in rank will also
affect the member's suitability to hold particular rank-contingent appointments or
postings. The punishment of reduction in rank is effective as soon as it is imposed by
the Military Court.
· Forfeiture of service for the purposes of promotion is a punishment that only has
effect on junior officer ranks where promotion is contingent not upon merit, but on
time served in rank. The effect of the punishment is to require the convicted member
to serve additional time in rank before being promoted.
· Forfeiture of seniority has effect on all members where seniority is used to determine
the member's eligibility for promotion.
393. Subclauses (2) and (3) set out, in decreasing order of severity, the punishments that
may be imposed by the Military Court on an officer of the ADF and other members of the
ADF. These include life imprisonment, imprisonment for a specified period, dismissal,
reduction in rank, forfeiture of seniority and a fine not exceeding 28 days pay.
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394. Subclause (2) provides that an officer can also receive the punishment of forfeiture of
service for the purposes of promotion. Subclause (3) confirms that, while a member of the
ADF (other than an officer) cannot receive a punishment of forfeiture of service, they can
receive the punishment of detention for a period not exceeding 2 years.
395. Subclause (4) sets out, in decreasing order of severity, the punishments that may be
imposed by the Military Court on a person who is not a member of the ADF who is convicted
of a service offence.
396. Subclause (5) provides that the Military Court cannot impose a punishment on a
person who is convicted by the Military Court in respect of a service offence that is more
severe than the most severe kind of punishment specified in the provision creating that
service offence. This subclause is modelled on section 69 of the Defence Force Discipline
Act 1982. It is intended to clarify that, despite the ability of the Military Court under this
clause to impose kinds of punishments other than the kind of punishment specified as the
maximum punishment in the provision creating the service offence, the Military Court cannot
exceed that maximum punishment. For example, in respect of a service offence with a
maximum punishment of 2 years imprisonment, the Military Court may impose one or more
less severe punishments, such as detention, reduction in rank or a fine. But if the Military
Court imposes imprisonment, either in addition to another punishment of a different kind or
as the sole punishment, the sentence of imprisonment must not exceed the maximum period
of 2 years. Similarly, despite the maximum fine specified in paragraphs (2)(g), (3)(g) and
(4)(c), if the maximum fine for a service offence (either specified in the provision creating the
service offence or calculated under section 4B of the Crimes Act 1914) is lower than as
provided in this clause, the lower punishment is to apply.
Clause 141 - Restrictions on power to impose punishments
397. This clause is modelled on section 71 of the Defence Force Discipline Act 1982.
Subclause (1) applies where the Military Court imposes a punishment of imprisonment on a
member of the ADF who is convicted by the Military Court of a service offence. It has the
effect of requiring the Military Court to also impose (in respect of that conviction of the
member) the punishment of dismissal from the ADF.
398. Subclause (2) applies where the Military Court imposes a punishment of detention on
a non-commissioned officer of the ADF who is convicted by the Military Court of a service
offence. It has the effect of requiring the Military Court to impose (in respect of that
conviction of the non-commissioned officer) the punishment of reduction in rank to a rank
below non-commissioned rank.
399. Subclause (3) provides that the Military Court must not impose a sentence of
imprisonment on a person who is convicted by the Military Court of a service offence if the
person was under 18 years of age at the time of the conviction.
400. Subclause (4) applies where the Military Court imposes a punishment of dismissal
from the ADF on a member who is convicted by the Military Court of a service offence. It
has the effect of preventing the Military Court from also imposing (in respect of that
conviction or another conviction of the member) the punishment of detention on that person.
401. Subclauses (5), (6) and (7) provide that where the Military Court imposes a
punishment of reduction of rank, forfeiture of service for the purposes of promotion or
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forfeiture of seniority, the Military Court must specify the date from which the punishment is
to be calculated. This date must not be before the date on which the punishment was imposed.
Clause 142 - Imposition of fines
402. This clause is modelled on sections 73 and 85 of the Defence Force Discipline Act
1982. Subclause (1) provides that the Military Court must, when imposing a punishment of a
fine, specify the fine in the amount of money payable.
403. Subclause (2) applies where the Military Court convicts a person of 2 or more service
offences and imposes 2 or more punishments, being or including fines. It provides that the
sum of the amounts of those fines must not exceed the amount of the most severe fine that the
Military Court could impose on the person for any one of the service offences of which the
person has been so convicted. For example, if the most severe fine for one of the service
offences of which the person has been convicted is a fine of the amount of the members' pay
for 14 days then the Military Court cannot impose a fine greater than 14 days pay even if the
court imposes 2 or more fines for 2 or more service offences.
404. The Military Court may order that a fine must be paid either in one sum or by
instalments (subclause (3)).
405. A fine is payable to the Commonwealth (subclause (4)).
Clause 143 - Concurrent or cumulative punishments
406. This clause is modelled on section 74 of the Defence Force Discipline Act 1982. It
sets out the various circumstances in which punishments imposed by the Military Court may
or must be concurrent or cumulative.
Imprisonment for life and imprisonment for specific period to be concurrent
407. Subclause (1) requires punishments of imprisonment, where one is for a specific
period and the other is for life, to be concurrent.
Provisions relating to 2 or more punishments of imprisonment, or of detention, for a specific
period
408. Subclause (2) provides that the remainder of this clause (subclauses (3) to (6)) only
applies to punishments of imprisonment or detention for a specific period.
409. Subclause (3) deals with the circumstances in which the Military Court may order that
the punishments be cumulative (subject to subclauses (4) and (5)). Paragraphs (a) to (d) list
the various circumstances where the Military Court may impose on a person 2 or more of the
same kind of these punishments (either both imprisonment or both detention, for a specific
period).
410. Subclause (4) applies where the Military Court convicts of a service offence a person
who is already subject to a punishment imposed by the Military Court (being a punishment
that is suspended in whole or in part) and, on that conviction, revokes that suspension and
also imposes another punishment of the same kind on the person. The subclause restricts the
Military Court from ordering punishments to be cumulative if this would subject the person to
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punishment for a period that exceeds the maximum punishment that it could impose for any
of the service offences of which he or she has been convicted by the Military Court.
411. Subclause (5) requires a punishment of detention, when imposed for a service offence
committed while serving such a punishment, to be cumulative (commencing at the end of the
period of detention that the person was serving when the service offence was committed).
412. Subclause (6) provides for a default position where paragraphs (3)(a), (b), (c) or (d)
apply in relation to 2 or more punishments imposed on a person by the Military Court.
Where the Military Court does not order that two punishments are to be cumulative (under
subclause (3), and subject to subclause (4) and (5), these punishments are to be concurrent.
413. The note to subclause (6) clarifies that section 19 of the Crimes Act 1914 applies (in
addition to this section) to punishments of imprisonment imposed by the Military Court.
Section 19 of the Crimes Act 1914 provides for cumulative, partly cumulative or concurrent
sentences involving convictions for federal offences.
Clause 144 - Taking other offences into consideration
414. This clause is modelled on section 77 of the Defence Force Discipline Act 1982. It
allows the Military Court to take into consideration other service offences admitted by a
convicted person that are similar to the service offence of which he or she has been convicted.
This is intended to avoid the necessity for a multiplicity of charges and at the same time to
enable the convicted person to recommence service or civilian life on completion of sentence
without threat of further prosecution. This may be useful when there is a series of less serious
service offences, for example.
415. Subclause (1) empowers the Military Court to take other offences into consideration
as described above, provided the DMP consents.
416. Subclause (2) provides that the Military Court is not to impose a separate punishment
or make a separate good behaviour order in respect of a service offence taken into
consideration. However, a restitution or reparation order may be made (clauses 151 and 152).
In addition, a service tribunal under the Defence Force Discipline Act 1982 must not impose a
separate punishment or order that a conviction be recorded without punishment in respect of
service offences taken into consideration by the Military Court.
417. Subclause (3) provides that, if the Military Court does not take the service offence into
consideration, the admission of the service offence is not admissible as evidence in any
subsequent proceeding before the Military Court, a service tribunal or civil court in respect of
that service offence or civil offence that is substantially the same.
Clause 145 - Commencement of sentences and non parole periods
418. This clause is modelled on section 16E of the Crimes Act 1914.
419. Subclause (1) is subject to subsections (2) and (3). It provides that the law of the
Jervis Bay Territory relating to the commencement of sentences and of non-parole periods
applies to a person who is sentenced by the Military Court for a service offence in the same
way as it applies to a person who is sentenced for an offence against a law of that Territory.
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420. Subclause (2) applies where the law of the Jervis Bay Territory has the effect that a
sentence imposed on a person for an offence against the law of that Territory, or a non-parole
period fixed in respect of that sentence, may be reduced by the period that the person has
been in custody for the offence, or is to commence on the day on which the person was taken
into custody for the offence. In these cases, the law will apply in the same way to a sentence
imposed by the Military Court on a person for a service offence or to a non-parole period
fixed in respect of such a sentence.
421. Subclause (3) applies where the law of the Jervis Bay Territory does not have the
effect mentioned in subsection (2). In this case, if the Military Court imposes a sentence on a
person for a service offence or fixes a non-parole period in respect of such a sentence, it must
take into account any period that the person has spent in custody in relation to the service
offence.
Division 4 - Suspension of punishments
Clause 146 - Suspension of detention
422. This clause is modelled on section 78 of the Defence Force Discipline Act 1982.
Subclause (1) gives the Military Court power to suspend a punishment of detention.
423. Subclause (2) deals with cases where 2 or more punishments of detention are imposed
on a person in respect of 2 or more service offences. It prevents the Military Court from
suspending, in whole or in part, one punishment unless all the punishments are suspended (in
whole or in part).
424. Subclause (3) provides that, where the Military Court suspends a punishment of
detention (in whole or in part), the punishment does not begin to run while the suspension
remains in force.
Clause 147 - Suspension of fines
425. This clause is modelled on section 79 of the Defence Force Discipline Act 1982.
Subclause (1) gives the Military Court power to suspend a punishment of a fine (in whole or
in part) on a member of the ADF, and subclause (2) makes similar provisions for a person
who is not a member.
426. Subclause (3) provides that, where the Military Court suspends a fine or part thereof,
the fine or the suspended part does not take effect while the suspension remains in force.
Clause 148 - Revocation of suspension of punishment
427. This clause is modelled on section 80 of the Defence Force Discipline Act 1982. It
allows the Military Court to revoke a suspension under clause 146 or 147 so that the
punishment that was suspended takes effect as if it had been imposed at the time of the
revocation.
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Division 5 - Remission of punishments
Clause 149 - Remission of suspended punishment
428. This clause is modelled on section 81 of the Defence Force Discipline Act 1982. It
provides for the automatic remission of suspended punishments.
429. Subclause (1) provides that, where a member of the Australia Defence Force who is
subject to a suspended punishment ceases to be a member, the punishment is remitted.
430. Subclause (2) provides that, where the suspension of a punishment of detention
continues for 12 months or, if the sentence is for a longer period, and the suspension of a
punishment of detention continues for that period, then the punishment is remitted.
431. Subclause (3) provides that, where the suspension of a fine continues for 12 months,
the fine (or the suspended part of it) is remitted.
Clause 150 - Remission of punishment of detention on imprisonment
432. This clause is modelled on section 82 of the Defence Force Discipline Act 1982. It
provides that a punishment of detention, whether imposed by the Military Court or a service
tribunal and whether suspended or not, is remitted if the convicted person is subsequently
sentenced to imprisonment.
Division 6 - Restitution orders and reparation orders
Clause 151 - Restitution orders
433. This clause is modelled on section 83 of the Defence Force Discipline Act 1982. It
enables the Military Court, where a person is convicted of a service offence involving the
theft of property, to make appropriate orders for the restoration of the property to its rightful
owner. This clause is restricted to property that is in the custody or control of the DMP
because it would be inappropriate for the Military Court to be making orders about property
that is in the custody or control of others.
434. Subclause (1) deals with cases in which the property unlawfully taken has not passed
into the hands of an identifiable third party. Paragraph (a) enables the property to be given
back when found in the convicted person's possession. Paragraph (b) enables any property
obtained by conversion or exchange to be handed back to the rightful owner of the property
taken.
435. Subclause (2) deals with cases in which the property unlawfully taken has been taken
in exchange by an identifiable and innocent third party. It enables the Military Court to order
that, on the third party restoring the property unlawfully taken to the rightful owner, the
property taken in exchange be restored to the third party.
436. Subclause (3) ensures that an order may be made in relation to a service offence taken
into consideration under clause 154. Such orders will lapse where the conviction, in respect
of which a service offence was taken into consideration, is quashed or set aside (subclause
(4)).
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437. Subclause (5) provides that an order under this clause does not prevent a person from
pursuing a civil claim.
Clause 152 - Reparation orders
438. This clause is modelled on section 84 of the Defence Force Discipline Act 1982. It
gives the Military Court power to order a convicted person to make financial reparation to a
person who sustained loss or damage as a consequence of the service offence.
439. Subclause (1) allows the Military Court to order the convicted person to pay a just
amount to the person who sustained the loss or damage, whether or not a punishment is also
imposed.
440. Subclause (2) gives the Military Court the option of allowing the convicted person to
pay the amount by instalments.
441. Subclause (3) ensures that an order may be made in relation to a service offence taken
into consideration under clause 154. Such orders will lapse where the conviction, in respect
of which a service offence was taken into consideration, is quashed or set aside (subclause
(4)).
442. Subclause (5) provides that an order under this clause does not prevent a person from
pursuing a civil claim.
Part 10--Persons found unfit to be tried and persons acquitted because of mental
impairment
Clause 153 - Unfitness to be tried
443. This clause applies where the Military Court finds an accused person unfit to be tried
in a trial of a charge of a service offence (subclause (1)).
444. Subclause (2) provides for the orders that the Military Court may make in these
circumstances. The orders that the Military Court may make are to either:
· dismiss the charge and release the person, or release the person subject to certain
conditions (such as that a person attend a person or place for treatment) for a period
not exceeding three years (paragraph (2)(a)), or
· make another other order it considers necessary having regard to the best interests of
the accused person, the safety of any other person to whom the order relates and the
safety of the community generally (paragraph (2)(b)). Examples of orders may
include, but are not limited to, orders requiring a person to remain at a certain
location, or not to leave a certain geographic area. An order should not be made for
detention of a person.
445. Subclause (3) requires an order under paragraph (2)(b) to specify the period it is to
have effect, which must not be more than three years.
446. Subclause (4) prevents the Military Court from making an order under section 19B of
the Crimes Act 1914 (discharge without conviction) where it makes an order under subclause
(2) in relation to the accused person and the service offence.
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447. Subclause (5) gives power to the Military Court to vary or set aside an order made by
the Military Court under this clause. An application to the Military Court to vary or set aside
an order under subclause (5) may be made by the DMP or the person to whom the order
relates (subclause (6).
Clause 154 - Persons acquitted because of mental impairment at time of conduct
constituting service offence
448. This clause applies where the Military Court acquits an accused person of a service
offence because the person was suffering mental impairment at the time of carrying out the
conduct constituting the service offence (subclause (1)).
449. Subclause (2) provides for the orders that the Military Court may make in these
circumstances. The orders that the Military Court may make are to either:
· release the person, or release the person subject to certain conditions (such as that a
person attend a person or place for treatment) for a period not exceeding three years
(paragraph (2)(a)), or
· make another other order it considers necessary having regard to the best interests of
the accused person, the safety of any other person to whom the order relates and the
safety of the community generally (paragraph (2)(b)).
450. Examples of orders may include, but are not limited to, orders requiring a person to
remain at a certain location, or not to leave a certain geographic area. An order should not be
made for detention of a person.
451. Subclause (3) requires an order under paragraph (2)(b) to specify the period it is to
have effect, which must not be more than three years.
452. Subclause (4) gives power to the Military Court to vary or set aside an order made by
the Military Court under this clause. An application to the Military Court to vary or set aside
an order under subclause (4) may be made by the DMP or the person to whom the order
relates (subclause (5)).
Part 11 - Practice and procedure
453. Part 11 of the Bill sets out the practices and procedures of the Military Court. The
majority of this Part is modelled on Part VI of the Federal Court of Australia Act 1976. It
also incorporates certain practices and procedures in proceedings before a service tribunal
under the Defence Force Discipline Act 1982. These will be supplemented by the Military
Court Rules. This Part will also operate in conjunction with other Acts such as the Evidence
Act 1995.
Division 1 - Introduction
Clause 155 - Guide to this Part
454. This clause sets out a guide to Part 11 of the Bill. The guide will assist readers to
understand the purpose and content of the Part, and to more easily navigate through the Part
to find relevant provisions.
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Division 2 - General
Clause 156 - Practice and procedure to be in accordance with Military Court Rules
455. This clause is modelled on section 38 of the Federal Court of Australia Act 1976. It
provides that, subject to any provision made under this or any other Act, the practice and
procedure of the Military Court is to be in accordance with the Military Court Rules. The
Rules of the High Court will apply where the Military Court Rules are insufficient to the
extent they are capable of application, and subject to any directions of the Military Court.
Clause 157 - Record of proceedings
456. This clause is modelled on section 148 of the Defence Force Discipline Act 1982.
Subclause (1) requires the Military Court to keep a record of proceedings and requires the
inclusion in the record of such particulars as are prescribed by the regulations.
457. Subclause (2) requires the Registrar to give a copy of the record of proceedings to the
Chief of the Defence Force and the DMP. This is because of the significant role of these
parties in the military justice system. The role of the DMP under the Defence Force
Discipline Act 1982 is to carry on prosecutions in the new military justice system. The Chief
of Defence Force has primary responsibility for the command of the ADF under subsection
9(2) of the Defence Act 1903.
Order that record not be published
458. Subclause (3) provides that the Military Court may order that the whole or a specified
part of a record not be published if the Military Court considers publication would be contrary
to the interests of justice or prejudicial to national security.
Clause 158 - Access to record of proceedings
459. This clause enables certain parties to be given access to the record of proceedings.
This is consistent with clause 56 which includes a general requirement for the jurisdiction of
the Military Court to be exercised in open court.
Application by party to proceedings
460. Subclause (1) enables a party, or former party, to proceedings other than the DMP to
apply to the Registrar for a copy of the record of proceedings.
Application by representative of deceased person
461. Subclause (2) enables the legal representative of a deceased party (or former party) to
proceedings, or person approved by the Registrar as the deceased person's representative, to
apply to the Registrar for a copy of the record of proceedings.
462. Subclause (3) prevents a Registrar from approving a person as the deceased person's
representative to access proceedings, unless the Registrar is satisfied that the deceased
person's legal representative has declined to make an application for a copy of the record of
proceedings under subclause (2).
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Record of proceedings to be given
463. Subclause (4) requires the Registrar to give a copy of the record of proceedings where
a person has applied under subclause (1) and (2).
464. Subclause (5) confirms that this clause does not authorise or require a copy of a record
of proceedings, or part of a record, to be given contrary to orders of the Military Court
prohibiting such publication.
Proceedings and provision of records not affected
465. Subclause (6) confirms that this clause does not affect the power of a court to make an
order for discovery of documents, the giving of evidence or production of documents in a
court, or the provision of copies of records of proceedings to other person entitled to receive
them other than under this clause.
Division 3 - Conduct of proceedings
Clause 159 - Accused person to be present at hearing
466. This clause is modelled on section 139 of the Defence Force Discipline Act 1982.
Subclause (1) provides that a hearing before the Military Court is to take place in the presence
of the accused person.
467. Where it is impossible to continue the hearing in the presence of the accused person
because of his or her disorderly behaviour, subclause (2) provides that the Military Court may
order that they be removed.
Clause 160 - Change of venue
468. This clause gives the Military Court power to order a change of venue at any stage of
proceedings. An order under this clause may specify that the proceeding be conducted in a
place inside or outside Australia subject to any conditions imposed by the Military Court. It
is modelled on section 48 of the Federal Court of Australia Act 1976. However, this clause
also enables the direction to include conduct or continuation of proceedings in a place outside
Australia. This is because the Military Court may move to a venue outside Australia (see
clause 51).
Clause 161 - Formal defects not to invalidate
469. This clause is modelled on section 51 of the Federal Court of Australia Act 1976.
Subclause (1) provides that a proceeding in the Military Court is not to be invalidated by a
formal defect or irregularity unless the Military Court is of the opinion that a substantial
injustice has been caused and that injustice cannot be remedied by an order of the Military
Court.
470. Subclause (2) enables the Military Court to make an order declaring that the
proceeding is not invalid by reason of a formal defect or irregularity. This may be on such
conditions (if any) as the Military Court thinks fit.
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Division 4 - Evidence
Clause 162 - Application of Evidence (Miscellaneous Provisions) Act 1991 of the
Australian Capital Territory
471. This clause provides that, in addition to the Evidence Act 1995, Parts 2, 4 and 4A of
the Evidence (Miscellaneous Provisions) Act 1991 (ACT) apply in relation to proceedings in
the Military Court as if the Military Court were a court exercising jurisdiction in or in relation
to the Jervis Bay Territory.
472. Part 2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) will provide
protections for children giving evidence in proceedings before the Military Court. Part 4 of
that Act provides various rules of evidence that will apply in proceedings before the Military
Court relating to sexual and violent offences. Part 4A of that Act will allow children and
witnesses with a mental disability to be accompanied by a support person when giving
evidence in a proceeding before the Military Court.
Clause 163 - Evidence to be given orally
473. This clause provides that evidence in proceedings before the Military Court must be
given orally unless the parties agree to another form to which the Military Court does not
object, or the evidence is given in accordance with the Military Court of Australia Bill 2012
or any other Act, or the law in force in the Jervis Bay Territory. This may include the
Evidence Act 1995.
474. Testimony by video link, audio link or other appropriate means is dealt with in
Division 5 of this Bill.
Clause 164 - Orders and commissions for examination of witnesses
475. This clause is modelled on section 46 of the Federal Court of Australia Act 1976. It
allows the Military Court for the purposes of proceedings before it to order the examination
of a person on oath or affirmation before the Military Court, a Judge, Federal Magistrate, an
officer of the Military Court or other person (other than a member of the ADF) at any place
within or outside Australia. It also allows the Military Court to authorise a person (other than
a member of the ADF) to take the evidence on oath or affirmation. This provision will help
to ensure the independence of the Military Court from the ADF.
476. Upon making such an order the Military Court may give directions as to the time,
place and manner of the examination (subclause (2)(a)). The Military Court may also
empower any party to give, in evidence in the proceeding, the evidence taken by an
authorised person (subclause (2)(b)).
Clause 165 - Oaths and affirmations
477. This clause is modelled on section 44 of the Federal Court of Australia Act 1976.
Subclause (1) provides that a Judge or Federal Magistrate may require and administer all
necessary oaths and affirmations for the purposes of the Military Court.
478. Subclause (2) allows the Military Court to authorise (either orally or in writing) any
person within or outside Australia to administer oaths or affirmations.
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479. Subclause (3) allows the Registrar to authorise a Deputy Registrar or member of staff
of the Military Court to administer oaths or affirmations by written instrument. The note to
this subclause refers to paragraph 30(1)(d). Paragraph 30(1)(d) enables the Chief Justice of
the Military Court to arrange with the chief judicial officer of another Australian court for
officers of that court to administer oaths or witness affidavits for the purposes of proceedings
in the Military Court on behalf of the Military Court.
Clause 166 - Swearing of affidavits etc.
480. This clause is modelled on section 45 of the Federal Court of Australia Act 1976. It
sets out the people before whom an affidavit to be used in a proceeding before the Military
Court may be sworn or affirmed both inside and outside Australia.
481. In Australia, affidavits may be sworn or affirmed before people including a Judge or
Federal Magistrate, Registrar or justice of the peace (subclause (1)).
482. Outside Australia, an affidavit may be sworn or affirmed before a broader range of
people (subclauses (2)(a)-(j)), including a person who is a competent officer, for the purposes
of regulations in force under the Defence Act 1903, for taking affidavits of members of the
ADF in that place.
483. Subclause (3) provides that the Military Court Rules may allow an affidavit sworn or
affirmed outside Australia otherwise than before a person in subclause (2) to be used in a
proceeding before the Military Court.
Clause 167 - Protecting witnesses etc.
484. This clause is modelled on section 23HC of the Federal Court of Australia Act 1976.
Subclause (1) gives the Military Court power to make such orders as it thinks appropriate to
protect witnesses called or proposed to be called or to protect information, documents and
other things admitted or proposed to be admitted. This is an addition to the powers of the
Military Court to restrict or prohibit the publication of information about witnesses and
evidence under clause 168.
485. Subclause (2) provides that, without limiting the broad power under subclause (1), the
Military Court may order the exclusion of the public or of persons specified by the Military
Court, from a sitting of the Military Court or direct how a witness may give evidence.
Clause 168 - Prohibition or restriction on publication of evidence etc.
486. This clause is modelled on section 50 of the Federal Court of Australia Act 1976. It
allows the Military Court to make orders prohibiting the publication of particular information
where it appears to the Military Court to be necessary to prevent prejudice to the
administration of justice or national security. This may include forbidding the publication of
the name of a party or witness, or access to certain documents obtained though discovery or
disclosure or produced under a subpoena. This is in addition to the powers of the Military
Court to protect witnesses and evidence admitted in a proceeding under clause 167.
Clause 169 - Offences by witness
487. This clause is modelled on section 58 of the Federal Court of Australia Act 1976. It
provides that it is an offence for a person duly served with a subpoena or summons to appear
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as a witness before the Military Court to fail to attend as required or to fail to appear and
report themselves from day to day unless excused or released from further attendance by the
Military Court.
488. Subclause (2) provides that it is an offence for a person appearing as a witness before
the Military Court to refuse or fail to swear an oath or make an affirmation, answer a
question, or produce a book to document required to be produced.
489. The penalty for both offences under this clause is 6 months imprisonment. Part 2.3 of
the Criminal Code Act 1995 sets out defences that may apply to these offences.
Division 5 - Use of video links or audio links
Clause 170 - Testimony by video link or audio link
490. This clause is modelled on section 47A of the Federal Court of Australia Act 1976. It
deals with testimony being given by video link, audio link or other appropriate means in
proceedings before the Military Court. Subclause (1) enables the Military Court to direct or
allow testimony to be given in this way in any proceedings. The note to subclause (1)
confirms that clause 172 provides for conditions for use of video links and audio links.
491. Subclause (2) requires testimony given by video link, audio link or other appropriate
means to be given on oath or affirmation unless the person giving testimony is in a foreign
country and the laws of that country do not permit them to give testimony on oath or
affirmation, or would make it inconvenient for them to do so. The Military Court must also
be satisfied that it is appropriate for the testimony to be given otherwise than on oath or
affirmation.
492. If testimony is not given on oath or affirmation, subclause (3) provides that the
Military Court must give the testimony such weight as it thinks fit.
493. Subclause (4) provides that the power to direct or allow testimony to be given by
video link, audio link or other appropriate means may be exercised on the application of a
party to the proceeding or on the Military Court's own initiative.
494. Subclause (5) provides that these provisions do not apply to a person giving testimony
from New Zealand. This is because these circumstances are dealt with by the Evidence and
Procedure (New Zealand) Act 1994.
Clause 171 - Appearances or submissions of persons by video link or audio link
495. This clause is modelled on section 47B of the Federal Court of Australia Act 1976. It
deals with a person appearing or making submissions by video link, audio link or other
appropriate means in proceedings before the Military Court. Subclause (1) provides that the
Military Court can make an order for a person to appear in this way. The note to subclause
(1) confirms that clause 172 provides for conditions for use of video links and audio links.
496. Such an order can be on the application of a party to the proceeding or on the Military
Court's own initiative (subclause (2)).
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497. Subclause (3) provides that these provisions do not apply to a person appearing or
making a submission from New Zealand. This is because these circumstances are dealt with
by the Evidence and Procedure (New Zealand) Act 1994.
Clause 172 - Conditions for use of video links and audio links
498. This clause is modelled on section 47C of the Federal Court of Australia Act 1976. It
outlines a number of conditions which must be met before the Military Court can allow
testimony to be given, or an appearance or submission to be made, by video link, audio link
or other appropriate means.
499. Subclause (1) provides that, for an appearance made by video link including to give
testimony or make a submission, the courtroom or place where the Military Court is sitting
must be equipped with facilities that enable all eligible persons present to see and hear the
person and vice versa.
500. Subclause (2) enables the Military Court Rules to prescribe other conditions for the
appearance including but not limited to the form of the video link, the layout of cameras and
quality of the communication.
501. The same conditions apply for an appearance made by audio link to the extent that all
eligible persons present must be able to hear the person giving the testimony or appearing
before the Military Court (subclauses (3) and (4)).
502. Subclause (5) provides that the Military Court may allow an appearance by means
other than video link or audio link if certain conditions are met, including any conditions
prescribed by the Military Court Rules.
503. Subclause (6) defines `eligible person' for the purposes of the clause. A person is an
`eligible person' if the Military Court considers they should be treated so.
Clause 173 - Putting documents to a person by video link or audio link
504. This clause is modelled on section 47D of the Federal Court of Australia Act 1976. It
provides for documents to be put to a person if it is necessary in the course of an examination
or appearance by video link, audio link or other appropriate means.
505. If the document is physically present in the courtroom or place where the Military
Court is sitting a copy must be transmitted and put to the person where they are located.
506. If the document is physically present where the person appearing remotely is located,
a copy must be transmitted to the courtroom or other place where the Military Court is sitting.
Clause 174 - Administration of oaths and affirmations
507. This clause is modelled on section 47E of the Federal Court of Australia Act 1976. It
provides that an oath can be sworn, or an affirmation made, by a person giving testimony by
video link, audio link or other appropriate means in two ways. It can be administered by
means of the video or audio link or other appropriate means in a way that, as nearly as
practicable, corresponds to how it would be administered if the person were present where the
Military Court is sitting. Alternatively, the Military Court may allow another person present
at the place where the person is located to administer the oath or affirmation.
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Clause 175 - New Zealand proceedings
508. This clause is consistent with section 47G of the Federal Court of Australia Act 1976.
It confirms that the provisions in Division 5 are not intended to affect the operation of the
remote appearance regime which operates under the Evidence and Procedure (New Zealand)
Act 1994.
Division 6 - Orders and judgments
Clause 176 - Orders
509. Subclause (1) provides that an order of the Military Court must be in writing, or
reduced to writing as soon as practicable. Subclause (2) enables an order of the Military
Court to be authenticated in a manner specified in the Military Court Rules.
Clause 177 - Reserved judgments
510. This clause is modelled on section 49 of the Federal Court of Australia Act 1976.
Subclause (1) provides that where the Military Court reserves judgment in a proceeding, and
the Judge or Federal Magistrate who heard the proceeding is not available to publish the
judgment, it may be made public by another Judge or Federal Magistrate authorised by the
original Judge to do so. Subclause (2) provides that a judgment published in this way has the
same effect as if it were made public by the original Judge or Federal Magistrate who wrote
the judgment.
511. Subclause (3) confirms that references to a Judge authorised to make public a
judgment under subclause (1) include a reference to a Judge hearing a proceeding as a
member of a Full Court.
Clause 178 - Recovery of amounts due under order of Military Court
512. Subclause (1) outlines the ways in which an amount due and payable under an order
by the Military Court can be recovered against a person. This may include a deduction from
a pay or salary payable to the person by the Commonwealth, or by action in a civil court as a
debt due to the person in whose favour the order was made.
513. Subclause (2) provides that if an amount is directed to be paid by instalments and a
person defaults on an instalment the remaining amount becomes due and payable.
514. Subclause (3) provides that this section will not affect any right or remedy that a
person may have, apart from this section, in respect of any loss or damage occasioned by a
service offence.
Division 7 - Military Court Rules
Clause 179 - Military Court Rules
515. This clause allows the Judges and Federal Magistrates of the Military Court to make
Rules of Court not inconsistent with the Bill. Subclause (1) provides that the Rules may
make provision for the practice and procedure to be followed in the Military Court and
anything necessary or convenient to be prescribed for the conduct of any of its business. The
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provision is intended to have broad application and capture the full scope of rule making
power that may validly be conferred on a federal court.
516. Subclause (2) provides that the Military Court Rules will have effect subject to any
provision made by another Act or rule or regulations under another Act with respect to the
practice and procedure in particular matters.
517. Subclauses (3) and (4) are modelled on subsections 59(4) and (5) of the Federal Court
of Australia Act 1976.
518. Subclause (3) provides that the Military Court Rules are subject to the requirements of
the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act).
That Act applies as if a reference to a legislative instrument was a reference to a rule of court,
and reference to a rule-maker was a reference to the Chief Justice acting on behalf of the
Judges and Federal Magistrates of the Military Court. This provision is subject to such
further modifications or adaptations as provided for in regulations under this Bill.
519. Subclause (4) makes it clear that despite section 16 of the Legislative Instruments Act
2003 the Office of Parliamentary Counsel (as established by subsection 2(1) of the
Parliamentary Counsel Act 1970) may provide assistance in the drafting of any Military
Court Rules. Section 9 of the Legislative Instruments Act 2003 provides that rules of court are
not legislative instruments for the purposes of that Act. However this clause provides that,
with the exception of certain provisions, the Legislative Instruments Act 2003 will apply to
rules of court. A note in the Legislative Instruments Act 2003 clarifies that rules of court are
treated as if they were legislative instruments by express amendment of the legislation
providing for them to be made.
520. The provisions of the Legislative Instruments Act 2003 that will not apply to rules of
court are: sections 5, 6 and 7 (definition of legislative instrument); sections 10 and 11
(Attorney-General may certify whether an instrument is a legislative instrument or not); and
section 16 (measures to achieve high drafting standards for legislative instruments).
Therefore, rules of court will be required to be lodged on the Federal Register of Legislative
Instruments; will be subject to appropriate consultation requirements (as determined by the
rule-maker) where they are likely to have a direct, or a substantial indirect, effect on business
or restrict competition; will be subject to disallowance (as they are presently) and sunsetting.
521. Notwithstanding the fact that section 16 of the Legislative Instruments Act 2003 will
not apply to the rules of court, nevertheless, the Office of Parliamentary Counsel may provide
assistance in drafting of those rules.
Clause 180 - Requirements relating to the making of Military Court Rules
522. This clause sets out how Military Court Rules are to be made. These requirements
reflect the different types of matters that will be heard in the two Divisions of the Military
Court. Both Divisions will need the ability to make Rules that are flexible enough to
complement their own discrete practices and procedures. Wherever possible, the Military
Court is encouraged to adopt common rules for the Military Court as a whole.
523. Subclause (1) enables Military Court Rules to be made for both Divisions and for each
Division separately.
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524. Subclause (2) provides that Military Court Rules applicable to both Divisions must be
made by a majority of Judges in the Appellate and Superior Division and a majority of
Federal Magistrates of the General Division. This prevents either Division making Rules for
the whole Military Court simply by constituting a majority of the Military Court.
525. Subclause (3) provides that Military Court Rules applicable only to the Appellate and
Superior Division must be made by a majority of Judges of that Division. Similarly,
subclause (4) provides that Military Court Rules for the General Division must be made by a
majority of Federal Magistrates of that Division. This prevents either Division making Rules
for the other Division. These provisions do not specify what subject matter can be dealt with
in the Military Court Rules.
526. Subclause (5) requires that Rules made for each Division separately must not be
inconsistent with Military Court Rules made by the majority of both Divisions for the whole
Military Court.
Part 12--Miscellaneous
Clause 181 - Certain provisions of the Crimes Act 1914 do not apply or apply with
modifications
527. Subclause (1) lists the sections of the Crimes Act 1914 that do not apply in relation to
service offences.
· Section 15AA of the Crimes Act 1914, which sets out certain cases in which bail is not
to be granted, does not apply in relation to service offences because of existing bail
provisions in Division 3, Part 8 of this Bill.
· Section 15A of the Crimes Act 1914, which provides mechanisms for the enforcement
of fines, does not apply in relation to service offences because clause 178 already
provides for the recovery of amounts due under orders of the Military Court.
· Section 15B of the Crimes Act 1914, which sets out the time for commencement of
prosecutions, does not apply in relation to service offences because it potentially
conflicts with section 96 of the Defence Force Discipline Act 1982 which provides the
time limit for imposing charges for service offences.
· Section 16BA of the Crimes Act 1914, which allows a court to take other offences into
account, does not apply in relation to service offences because clause 144 of this Bill
already provides for the Military Court to take other offences into consideration.
· Section 16E of the Crimes Act 1914 does not apply in relation to service offences
because it has been replicated in modified form as clause 145 of this Bill.
· Sections 20AB and 20AC of the Crimes Act 1914, which provide additional
sentencing alternatives and consequences for breach, do not apply in relation to
service offences because the alternative offences provision in section 142 of the
Defence Force Discipline Act 1982 applies.
· Sections 20BQ and 20BR of the Crimes Act 1914, which provides for the summary
disposition of persons suffering from mental illness or intellectual disability, do not
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apply because Part 10 of this Bill contains provisions for how persons suffering from
mental impairment will be dealt with by the Military Court. The provisions in
Divisions 6, 7 and 9 of Part IB of the Crimes Act 1914 relating to acquittal because of
mental illness and unfitness to be tried have not been excluded because they only
apply to trials on indictment and trials before the Military Court will not be on
indictment (clause 64).
· Section 21B of the Crimes Act 1914, which provides for a court to make reparation
orders, does not apply in relation to service offences because clause 152 of this Bill
already provides for the Military Court to make reparation orders.
528. Subclause (2) confirms that a reference in the Crimes Act 1914 to a prison or
imprisonment does not include a reference to detention or a detention centre. The punishment
of detention is in a place, not being a prison, operated by the Defence Force as a place for the
detention of persons on whom punishments of detention have been imposed. Subclause (2)
clarifies that the distinction between detention and imprisonment in this Bill applies in
relation to references to a prison or imprisonment in the Crimes Act 1914.
529. Subclause (3) modifies the application of certain sections of the Crimes Act 1914 to
service offences. References to the Director of Public Prosecutions are to be read instead as
references to the DMP.
Clause 182 - Regulations
530. Subclause (1) provides for regulations to be made prescribing matters required or
permitted by the Bill, or matters necessary or convenient to be prescribed for carrying out or
giving effect to the Bill.
531. Subclause (2) provide for the regulations to prescribe penalties, not exceeding 10
penalty units, for offences against the regulations.
532. Subclause (3) enables the regulations to make provision modifying or adapting
provisions of the Legislative Instruments Act 2003 in their application to the Military Court
(other than the provisions of Part 5 of that Act which deal with Parliamentary scrutiny of
legislative instruments).
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SCHEDULE 1 - Service offences to be dealt with by the Appellate and Superior
Division
533. Schedule 1 provides a list of service offences that must be heard and determined by
the Appellate and Superior Division (see clause 65). This ensures that the most serious
service offences are dealt with at an appropriate level by a Judge of the Appellate and
Superior Division. It also provides greater parity with the criminal justice system, under
which the most serious criminal offences are heard by a judge of a superior court (in most
cases the Supreme Court of the State or Territory).
534. The service offences in items 1 to 18 are those that go to the very core of maintaining
discipline and morale in the ADF. The offences include abandoning or surrendering a post
etc, harbouring enemies, failing to carry out orders, mutiny, desertion and dangerous conduct.
535. The service offences in items 19 to 21 are those with equivalent offences under
ordinary criminal law so serious in nature that the Commonwealth Director of Public
Prosecution's consent is required for prosecution in the military justice system or which have
a serious maximum punishment of 10 years imprisonment or more.
536. The service offence in item 22 is one of commanding or ordering the commission of
the types of service offences in items 19 to 21.
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