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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MILITARY JUSTICE (INTERIM MEASURES) BILL (NO. 2) 2009
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Defence
Senator the Hon John Faulkner)
MILITARY JUSTICE (INTERIM MEASURES) BILL (NO. 2) 2009
GENERAL OUTLINE
On 26 August 2009, the High Court declared that the Australian Military
Court, which had been established under the Defence Force Discipline Act
1982, was invalid. This decision had significant consequences for the
administration of discipline in the Australian Defence Force. The main
object of this Bill is to maintain the continuity of discipline in the
Defence Force in light of the High Court's decision.
The principal mechanism by which the Bill seeks to maintain the continuity
of discipline within the ADF is by imposing disciplinary sanctions on
persons corresponding to punishments imposed by the AMC and, to the extent
necessary, summary authorities in the period between the AMC's
establishment and the declaration of invalidity by the High Court.
As explained below, the Bill does not purport to validate any convictions
or punishments imposed by the AMC. Nor does the Bill purport to convict
any person of any offence. Rather, the Bill, by its own force, purports to
impose disciplinary sanctions. The Bill does not purport to impose any
liability in relation to imprisonment. Further, consistently with the
exclusively disciplinary purpose of its provisions, the Bill is expressed
to have effect for service purposes only.
The Bill recognises that there may be circumstances in which a person
affected by a disciplinary liability imposed by the Bill wishes to contest
whether that liability should remain imposed. The Bill gives affected
persons a right to seek review of whether they should remain liable under
the Act, and the reviewing authority is given power to discharge persons
from such liability. In cases where the disciplinary liability imposed by
the Bill relates to detention - a serious disciplinary measure peculiar to
the ADF - the Bill requires automatic review by the reviewing authority to
determine whether that disciplinary liability should be discharged.
Financial Impact Statement
The amendments in the Bill will have no additional impact on Commonwealth
expenditure or revenue.
NOTES ON CLAUSES
Short Title
1. This clause provides for the short title of the Act to be the Military
Justice (Interim Measures) Act (No. 2) 2009.
Commencement
2. Clause 2 provides that the Act will commence on the day it receives
the Royal Assent.
Schedules
3. Clause 3 provides that the items specified in a Schedule are amended
or repealed as set out in the applicable items in the Schedule. Any other
item in a Schedule has effect according to its terms.
SCHEDULE 1 - Effects of things done by or in relation to the Australian
Military Court
5. Clause 1 provides definitions relevant to the Act. These include:
AMC means the Australian Military Court purportedly established by
Division 3 of Part VII of the old Defence Force Discipline Act.
amended Defence Force Discipline Act means the Defence Force
Discipline Act 1982 as amended by the Military Justice (Interim Measures)
Bill (No. 1) 2009.
DFDAT means the Defence Force Discipline Appeal Tribunal established
by the Defence Force Discipline Appeals Act 1955.
High Court decision date means 26 August 2009.
liability includes a duty or obligation.
old Defence Force Discipline Act means the Defence Force Discipline
Act 1982 as purportedly in force immediately before the High Court
decision date.
Part IV order means a restitution order or a reparation order
purportedly made under Part IV of the old Defence Force Discipline
Act.
right includes an interest or status.
6. Clause 2 sets out the object and effect of Schedule 1. It states that
the object of the Schedule is to maintain the continuity of discipline in
the Defence Force. It also states that the provisions of the Schedule that
declare people to have particular rights or liabilities, have effect for
Defence Force service purposes only.
For example, this means that in circumstances where a person would be
required to disclose a conviction for a criminal offence, he or she does
not have to disclose the punishment imposed by this Bill.
This clause also provides that if a provision in the Schedule has an
invalid application because it exceeds the Commonwealth's power, but it has
one or more valid applications, the provision is intended to have every
such valid application.
7. This clause also provides that if a provision in the Schedule has an
invalid application because it exceeds the Commonwealth's power, but it has
at least one valid application, the provision will not have an invalid
application, rather it will reflect the Parliament's intention that the
provisions in this Schedule are to have every valid application.
Clause 3 Reliance on, and enforcement of, declared rights etc.
8. This clause deals with the reliance on and enforcement of rights
declared by Schedule 1. It ensures that third parties that have acted on
the basis of a punishment purportedly imposed or an order purportedly made
by the AMC are entitled, and always were entitled, to act on that basis.
The clause applies where another clause of Schedule 1 declares the rights
and liabilities of a person to be, and always to have been, as if certain
specified matters had been the case.
Without limiting the effect of that other clause, this clause declares that
all persons are entitled to act, and have always been entitled to act, on
the basis that a particular person had, and always had, the rights and
liabilities declared by the other clause. Any right or liability that a
person is declared to have by this clause is, and is to be regarded as
always having been, exercisable and enforceable.
PART 2 - Things done by the AMC, Otherwise than on appeal
Clause 4 Application of Part
9. This clause applies Part 2 of Schedule 1 to the Bill to things
purportedly done by the AMC before the High Court decision date, other than
on appeal under Part IX of the old DFDA, which is dealt with by Part 3 of
Schedule 1.
Clause 5 Effect of punishment and Part IV orders
10. This clause applies if the AMC purported to impose a punishment
(other than imprisonment) or make a Part IV order.
In respect of a punishment purportedly imposed or order purportedly made,
the clause declares the rights and liabilities of all persons to be, and
always to have been, the same as if the amended DFDA had been in force and
the punishment had been imposed by a general court martial and all relevant
rights of review under Part VIIIA of the amended DFDA had been exhausted.
If the punishment was detention or a fine and it was purportedly suspended,
in whole or in part, by the AMC under s 78 or 79 of the old DFDA, then the
general court martial is also taken to have made an order under s 78 or 79
of the amended DFDA in the same terms as the AMC.
If the AMC ordered a purported punishment of dismissal to take effect on a
specified day, then a general court martial is taken to have the power to
make such an order and to have made an order in the same terms.
The clause provides for a right of review under [transitional provision].
Where the punishment purportedly imposed by the AMC was detention, the
review is automatic. The rights and liabilities declared by the clause are
subject to the outcome of any such review.
The clause is modelled on the legislative approach upheld in The Queen v
Humby; Ex parte Rooney (1973) 129 CLR 131. The clause does not change the
status of the punishments and orders invalidly imposed or made by the AMC,
but rather effects a direct legislative alteration of rights and
liabilities in the exercise of the legislative power conferred on the
Commonwealth Parliament under s 51(vi) of the Constitution. The purported
punishments and orders of the AMC are merely historical facts by reference
to which to the clause's alteration of rights and liabilities is made to
occur.
The clause relates to the effects of punishments (other than imprisonment,
but including detention and fines) and DFDA Part IV orders (restitution and
reparation). This item provides that the rights and liabilities of all
persons are, by force of the item, the same as if the punishment or order
of the AMC had been imposed or made by a properly constituted court martial
and confirmed by command review. Where a person has been dismissed from the
Defence Force and the AMC has ordered under the old DFDA that the dismissal
take effect from a specified day, this clause operates as if a general
court martial had made the order in the same terms.
Clause 6 Persons not liable to be tried again under the amended Defence
Force Discipline Act
11. To protect a person from further prosecution, this clause, where it
applies, provides that a person purportedly acquitted or convicted by the
AMC of a service offence, is not liable to be tried again under the amended
DFDA. If the AMC purported to acquit or convict a person of a service
offence, to protect a person from further prosecution, the person will not,
by operation of this item, be liable to be tried under the amended DFDA for
the same or substantially the same offence. Furthermore, a purported
dismissal of a charge under sections 132B or 132D of the old DFDA is taken
to be a purported acquittal by the AMC of the service offence. This
reflects the law in the DFDA that the dismissal of a charge is deemed to be
an acquittal of the service offence.
The clause does not apply if clause @V15 does not have effect, for any
reason (including because the punishment purportedly imposed was
imprisonment), in relation to a punishment or order purportedly imposed or
made by the AMC. Nor does the clause apply if a person had been convicted
by the AMC, but the AMC had not, by the High Court decision date, imposed a
punishment or made an order under Part IV.
Clause 7 Effect of administrative actions taken in relation to person
purportedly convicted by the AMC
Effect of administrative actions taken in relation to person purportedly
convicted by the AMC
12. 'Administrative action' for the purposes of this provision, reflects
formal disapproval on a temporary or permanent basis. For example, it
includes (but is not limited to) placing a person on an unsuitability
reports, formal warnings, censures, change of employment category,
removal or changing a security classification or clearance, changing
the employment conditions of a person (for example, forfeiture of
salary), denying or delaying promotion or revocation of provisional
promotion, removal from or change to posting, appointment or locality
(including removal from position of command or authority), reduction
in rank or seniority and termination of service.
The term 'administrative action' does not include the execution of
punishments imposed by the AMC.
13. This clause declares administrative action taken in relation to a
person, in reliance on or by reference to a purported conviction by the AMC
of a person of a service offence, as being entitled to be taken by force of
this clause.
PART 3 - Things done by the AMC on appeal
Clause 8 Application of Part
14. This clause applies Part 3 of the Schedule to the Bill to things
purportedly done by the AMC before the High Court decision under Part IX of
the old DFDA (Appeals).
Clause 9 Quashing convictions, clause 10 varying or quashing
punishments, clause 11, varying or revoking Part IV orders, clause 12,
dismissal of appeals.
15. Clauses 9 to 12 deal with circumstances where the AMC, on an appeal
from a summary authority, has purported to quash a conviction, vary,
quash or confirm a punishment imposed or purported to vary or revoke a Part
IV order originally made by the summary authority. It also deals with the
dismissal of an appeal from a summary authority to the AMC.
The clauses provide that, where the AMC purported to do one of these
things, the rights and liabilities of persons in respect of which the
action was purportedly taken are declared to be, and always to have been,
the same as if the amended DFDA had been in force and a competent reviewing
authority had reviewed the conviction and taken the relevant action under
Part VIIIA of the amended DFDA.
16. Therefore, if the AMC purported to quash or vary a conviction, or
quash, vary or confirm a punishment or Part IV order (reparation or
restitution), made by a summary authority, or dismissed an appeal, the
rights and liabilities of all persons will be as if the conviction,
punishment or Part IV order had been quashed, varied or upheld by a
competent reviewing authority under Part VIIIA of the amended DFDA.
PART 4 - Things done on appeal from the AMC
Clause 13 Application of Part
17. This clause provides for the application of this Part to apply
to things purportedly done by the Defence Force Discipline Appeal Tribunal
(DFDAT) before the High Court decision date, on appeal from decisions of
the AMC.
Clause 14 Effect of things done by the DFDAT
18. This clause provides that decisions of the DFDAT to quash a
conviction, punishment or order purportedly made by the AMC or to confirm
or vary a punishment or order purportedly made by the AMC. These
decisions will be preserved by the operation of the proposed amendments
contained in Part 2. As discussed above, the rights and liabilities of
persons will be the same as if the amended DFDA, as defined, had been in
force at the time of the decisions.
PART 5 - Decisions of summary authorities made on basis person did not
elect to be tried by the AMC.
Clause 15 Effect of punishment or Part IV order imposed or made by
summary authority
19. This clause discusses the effect of the system of election for trial
by the AMC. If, before the High Court date, a summary authority offered an
election to a person but the person chose to have the summary authority
hear the matter, the summary authority continued with the trial and imposed
a punishment, and a reviewing authority purported to take certain action as
outlined in the clause, the rights and liabilities of the person will be
the same as if the amended DFDA had been in force when the opportunity to
elect was given, the punishment had been properly imposed and review
processes had been undertaken. It is important to realise that this clause
only has effect to the extent that the original punishment or order was
invalid. That is, to a significant extent the provision has been included
out of an abundance of caution to cover arguable consequences that the
invalidity of the AMC might have for proceedings before summary authorities
Clause 16 Persons not liable to be tried again under the amended Defence
Force Discipline Act
20. This clause provides that a person will not be liable to be tried
again in respect of a service offence, in the circumstances outlined in the
clause, where an offer of an election to be tried by the AMC has been made,
but the person chose instead to proceed with a summary authority trial.
Clause 17 Effect of actions taken in relation to person purportedly
convicted by a summary authority
21. This clause operates in the same way as clause 7 discussed above at
paragraph 12 (relating to a purported conviction by the AMC), but in
respect of a purported conviction by a summary authority.
PART 6 - Other matters
Clause 18 Protection of member of military juries
22. To the extent that section 193 of the old DFDA may not have applied
in relation to the people or acts referred to in that section, this clause
provides that the protection and immunity of members of military juries,
the Judge Advocate General, etc. under section 193 of the old DFDA always
had effect, and continues to have effect it would have, if it applied in
relation to those people or acts.
Clause 19 Contempt of the AMC etc.
23. This clause preserves the effect of section 53 of the old DFDA and
section 89 of the Defence Act 1903 in respect of contempt of the AMC.
Clause 20 Effect of Summary Authority Rules
24. To the extent of any invalidity, this clause declares that the
Summary Authority Rules made under section 149 of the old DFDA are taken to
have, and always to have had, the effect they would have, had they been
valid .
Clause 21 Effect of certificates issued by the AMC under section 128 of
the Evidence Act 1995
25. This clause declares as valid the effect of certificates issued by
the AMC to a person under section 128 of the Evidence Act 1995. Section 128
relates to the privilege in respect of self-incrimination in other
proceedings.
Clause 22 Operation of the Privacy Act 1988
26. This clause provides where conduct is, or was engaged in, and
that conduct would have contravened a provision of the Privacy Act 1988
because the AMC was not a validly created court, such conduct taken to have
had the effect it would have had, and continues to have the effect it would
have, as if the conduct had not contravened that the Privacy Act 1988.
Clause 23 Regulations may deal with other matters
27. This clause provides a broad regulation making power to address
matters in relation to the effects and consequences of things
purportedly done before the High Court decision date.
Part 7 - Transitional provisions
Division 1 - Preliminary
Clause 24 - Meaning of Punishment review
28. This clause explains what a punishment review' means for the purposes
of Part 7 of Schedule 1 of the Bill. It defines 'punishment review' to be
a review of a punishment imposed by Part 2, 3, 4 or 5 of Schedule 1.
Accordingly, apart from clauses 30 and 31, a review is only available under
this Part where a purported punishment was invalid and, by operation of
this Bill, was declared to be a liability of a person.
Part VIIIA of the amended DFDA applies as nearly as possible to a
punishment review as it would in relation to a review of proceedings of a
general court martial (in respect of Division 2 of Part 7) or a review of
proceedings of a summary authority (in respect of Division 3 of Part 7).
The clause makes it clear that the outcome of a punishment review may
modify or affect a punishment or Part IV order that is declared by Part 2,
3, 4 or 5 of Schedule 1 to be a liability of a person.
The clause also clarifies the operation of clause 15(4) in relation to
clause 30 and 31 of Part 7.
Division 2 - Things purportedly done by the AMC or on appeal from the AMC
Clause 25 - Punishment or Part IV order imposed or made by the AMC
29. This clause explains a person's options where the AMC purported to
convict a person and impose a punishment or Part IV order. A person may
lodge a petition with a competent reviewing authority under the amended
DFDA for a review of the punishment, within 60 days from the commencement
day. If the punishment was of detention, the reviewing authority must
undertake the review as soon as practicable.
Clause 26 - Appeals on punishments and orders purportedly decided by the
AMC
30. This clause explains the process to be followed under the amended
Defence Force Discipline Act in relation to appeals made to the AMC
against a punishment or order made by a summary authority under old
Defence Force Discipline Act. A person may lodge a petition with a
competent reviewing authority under the amended DFDA for a review of
the punishment, within 60 days from the commencement day. If the
punishment was of detention, the reviewing authority must undertake
the review as soon as practicable.
Clause 27 - Appeals to the AMC on convictions - purported order for a new
trial
31. This clause explains the process to be followed under the amended
Defence Force Discipline Act where following an appeal made to the AMC in
relation a person's conviction by a summary authority for a service offence
under the old Defence Force Discipline Act, and the AMC quashed the
conviction and ordered a new trial.
Clause 28 - Appeals to the DFDAT from purported AMC decisions - finalised
appeals
32. This clause explains the process to be followed under the amended
Defence Force Discipline Act in relation to appeals made to the DFDAT
from a punishment or order imposed by the AMC, and the DFDAT confirmed
or varied the punishment or order.
Division 3 - Things purportedly done by summary authorities on the basis of
no election to be tried by the AMC
Clause 29 - Application provision.
Clause 30 - Summary authority proceedings started but not completed before
the commencement day.
33. This clause explains the process to be followed in respect of summary
proceedings started, but not completed before the commencement day.
Clause 31 - Summary authority proceedings completed before the commencement
day: review of proceedings started but not completed
34. This clause explains the process to be followed in respect of summary
authority proceedings completed before the commencement day where a review
of the proceedings had started but had not been completed.
Clause 32 - Summary authority proceedings completed before the commencement
day: review proceedings also completed.
35. This clause explains the process to be followed under the amended
Defence Force Discipline Act in relation to a charge of a service offence
where a summary authority purported to impose a punishment or order under
the old Defence Force Discipline Act and a review of proceedings had been
completed on or before commencement day under the old Defence Force
Discipline Act.