Commonwealth Consolidated Acts Commonwealth Consolidated Acts199 Clause 1 of Schedule 2
Omit "a court martial or a Defence Force magistrate", substitute "the Australian Military Court".
200 Clause 2 of Schedule 2
Repeal the clause.
201 Schedule 4 (note to heading)
Omit "Sections 128, 184, 188FF and 188GJ", substitute "Sections 184, 188AF, 188AT, 188FF and 188GJ".
202 Schedule 5
Repeal the Schedule.
Defence Force Discipline Appeals Act 1955
203 Title
Omit " courts martial and Defence Force magistrates ", substitute " the Australian Military Court ".
204 Subsection 4(1)
Omit "(1)".
205 Subsection 4(1)
Insert:
"Australian Military Court" means the Australian Military Court created under the Defence Force Discipline Act 1982 .
206 Subsection 4(1) (definition of convicted person )
Omit "a court martial or a Defence Force magistrate", substitute "the Australian Military Court".
207 Subsection 4(1) (definition of conviction )
Omit "a court martial or a Defence Force magistrate", substitute "the Australian Military Court".
208 Subsection 4(1) (definition of court martial )
Repeal the definition.
209 Subsection 4(1) (definition of Defence Force magistrate )
Repeal the definition.
210 Subsection 4(1)
Insert:
"Military Judge" has the same meaning as it has in the Defence Force Discipline Act 1982 .
211 Subsection 4(1) (definition of prescribed acquittal )
Omit "a court martial or a Defence Force magistrate", substitute "the Australian Military Court".
212 Subsection 4(1) (definition of prescribed acquitted person )
Omit "a court martial or a Defence Force magistrate", substitute "the Australian Military Court".
213 Subsection 4(1) (definition of review )
Repeal the definition.
214 Subsection 4(1) (definition of reviewing authority )
Repeal the definition.
215 Subsection 4(2)
Repeal the subsection.
216 Paragraphs 17(1)(c), (d) and (f)
Before "appellant", insert "offender".
217 Paragraph 17(1)(f)
After "(3)", insert "or (3A)".
218 Subsection 20(2)
Omit "the court martial or the Defence Force magistrate", substitute "the Australian Military Court".
219 Subsection 23(1)
After "an appeal", insert "against a conviction or prescribed acquittal".
220 Paragraph 23(1)(c)
Omit "the court martial or the Defence Force magistrate", substitute "the Australian Military Court".
221 Subsection 23(2)
After "an appeal", insert "against a conviction or prescribed acquittal".
222 Paragraphs 23(2)(a) and (c)
Omit "the court martial or the Defence Force magistrate", substitute "the Australian Military Court".
223 Subsection 23(3)
Before "appellant", insert "offender".
224 Subsection 23(4)
After "an appeal", insert "against a conviction or prescribed acquittal".
225 Subsection 23(4)
Omit "the court martial or the Defence Force magistrate", substitute "the Australian Military Court".
226 Subsection 23(4)
Before "appellant" (wherever occurring), insert "offender".
227 Paragraph 26(1)(a)
Omit "the court martial or the Defence Force magistrate", substitute "the Military Judge or the military jury".
228 Subparagraph 26(1)(a)(ii)
Omit "the court martial or the Defence Force magistrate", substitute "the Australian Military Court".
229 Paragraph 26(1)(b)
Omit "the court martial or the Defence Force magistrate, by reason of its or his", substitute "the Military Judge or the military jury, by reason of its, his or her".
230 Subsection 26(2)
Omit "court martial or the Defence Force magistrate that convicted the convicted person of the original offence if the court martial or Defence Force magistrate had convicted him", substitute "the Australian Military Court if the Court had convicted the person".
231 At the end of section 26
Add:
(4) In this section, military jury has the same meaning as it has in the Defence Force Discipline Act 1982 .
232 Paragraph 31(1)(b)
Omit "the court martial or the Defence Force magistrate", substitute "the Australian Military Court".
233 Paragraph 31(1)(c)
Before "appellant" (wherever occurring), insert "offender".
234 Subsection 35(1)
Before "appellant", insert "offender".
235 Section 36
Omit "against a conviction or a prescribed acquittal by a court martial or a Defence Force magistrate".
236 Section 36
Omit "the person who was the judge advocate of the court martial or from the Defence Force magistrate", substitute "the Military Judge of the Australian Military Court who heard the case".
237 Subsection 37(1)
After "an appeal", insert "by an offender appellant".
238 Subsections 37(1) and (2)
Before "appellant" (wherever occurring), insert "offender".
239 Subsection 37(2)
Omit "the last preceding subsection", substitute "subsection (1) or (1A)".
240 Subsection 37(3)
Omit "an appeal or an application for leave to appeal, it may, if it thinks fit, order the appellant", substitute "an appeal by an offender appellant or an application for leave to appeal by an offender appellant, it may, if it thinks fit, order the offender appellant".
241 Subsection 39(1)
Before "appellant", insert "offender".
Note: The heading to section 39 is altered by inserting " offender " before " appellants ".
242 Subsection 39(1)
Omit "his appeal before the Tribunal", substitute "an appeal before the Tribunal to which he or she is a party".
243 Subsections 39(2) and (3)
Before "appellant", insert "offender".
244 Subsection 39(3)
Omit "his appeal", substitute "an appeal to which he or she is a party".
245 Subsection 40(3)
Before "appellant", insert "offender".
246 Section 42
After "an appeal", insert "by an offender appellant".
Note: The heading to section 42 is altered by adding at the end " by offender appellants ".
247 Paragraph 52(5)(c)
Omit "a court martial or a Defence Force magistrate", substitute "the Australian Military Court".
248 Paragraph 60(d)
Before "appellants", insert "offender".
249 At the end of paragraph 60(d)
Add "(other than the Director of Military Prosecutions)".
250 Paragraph 60(f)
Before "appellant", insert "offender".
251 Paragraph 60(g)
Omit "or a prescribed acquittal by a court martial or a Defence Force magistrate", substitute ", a prescribed acquittal, a punishment imposed or a court order made by the Australian Military Court".
252 Subparagraphs 60(g)(i), (ii) and (iii)
Repeal the subparagraphs, substitute:
(i) a record of the proceedings of the Australian Military Court; and
(ii) documents that were before the Australian Military Court in connection with the proceedings; and
253 Subsection 500A(14) (definition of court )
Repeal the definition, substitute:
"court" includes:
(a) the Australian Military Court; and
(b) a court martial or similar military tribunal of another country.
254 Subsection 501(12) (definition of court )
Repeal the definition, substitute:
"court" includes:
(a) the Australian Military Court; and
(b) a court martial or similar military tribunal of another country.
Part 3 -- Application and transitional provisions
255 Definitions
In this Part:
commencement day means the day on which this Schedule commences.
new DFDA means the Defence Force Discipline Act 1982 as amended by this Schedule.
new law means the Defence Force Discipline Act 1982 and the Defence Force Discipline Appeals Act 1955 as amended by this Schedule.
old DFDA means the Defence Force Discipline Act 1982 as in force immediately before the commencement day.
Division 2--Application of amendments
256 Application of amendments
(1) The amendments made by this Schedule apply in relation to a service offence committed by a person on or after the commencement day.
(2) The amendments made by this Schedule also apply in relation to a service offence committed by a person before the commencement day if, before the commencement day, the person had not been charged with the offence under the old DFDA.
Division 3--Transitional provisions
257 Before commencement day, Director of Military Prosecutions requested trial by court martial or Defence Force magistrate
Trial by court martial
(1) Subitem (2) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to convene a court martial to try a charge of a service offence that was committed by a person before the commencement day; and
(b) the Registrar of Military Justice either:
(i) had not convened the court martial; or
(ii) had convened the court martial, but the person had not been asked to plead at the trial.
(2) If this subitem applies, then:
(a) if a court martial had been convened before the commencement day--on the commencement day, the court martial is taken to have been dissolved; and
(b) on the commencement day, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (4) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to refer a charge of a service offence that was committed by a person before the commencement day to a Defence Force magistrate for trial; and
(b) the Registrar of Military Justice:
(i) had not referred the charge; or
(ii) had referred the charge, but the person had not been asked to plead at the trial.
(4) If this subitem applies, then:
(a) if the charge had been referred to a Defence Force magistrate before the commencement day--on the commencement day, the reference is taken to have been terminated; and
(b) on the commencement day, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections for trial by court martial or Defence Force magistrate
(5) If:
(a) before the commencement day, a person made an election under subsection 131(1) of the old DFDA to have a charge against him or her tried by a court martial or Defence Force magistrate; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
258 Before commencement day, trial by court martial or Defence Force magistrate discontinued
Trial by court martial
(1) Subitem (2) applies if, before the commencement day:
(a) a court martial convicted a person of a service offence committed before the commencement day, but the court martial had not taken action under Part IV of the old DFDA; and
(b) the court martial was dissolved under section 125 of the old DFDA before the court martial had taken such action; and
(c) under subsection 125(6) of the old DFDA, the Registrar of Military Justice:
(i) had not convened a new court martial for the purpose of taking such action; or
(ii) had convened a new court martial for the purpose of taking such action, but the new court martial had not begun to hear evidence relevant to determining what action should be taken.
(2) If this subitem applies, then:
(a) if a new court martial was convened before the commencement day--on the commencement day, the new court martial is taken to have been dissolved; and
(b) on the commencement day, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (4) applies if, before the commencement day:
(a) a charge of, or conviction for, a service offence that was committed by a person before the commencement day was referred to a Defence Force magistrate; and
(b) a Defence Force magistrate:
(i) in relation to a charge--had convicted the person of the offence, but had not taken action under Part IV of the old DFDA; or
(ii) in relation to a conviction--had not taken action under Part IV of the old DFDA; and
(c) the reference was terminated under section 129A of the old DFDA before action had been taken under Part IV; and
(d) under subsection 129A(4) of the old DFDA, the Registrar of Military Justice either:
(i) referred the conviction to another Defence Force magistrate to take action under Part IV of the old DFDA; or
(ii) convened a court martial to take action under Part IV of the old DFDA; and
(e) the new Defence Force magistrate or court martial had not begun to hear evidence relevant to determining what action should be taken.
(4) If this subitem applies, then:
(a) if the conviction was referred to another Defence Force magistrate before the commencement day--on the commencement day, the reference is taken to have been terminated; and
(b) if a court martial was convened before the commencement day--on the commencement day, the court martial is taken to have been dissolved; and
(c) on the commencement day, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(d) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
259 Before commencement day, Director of Military Prosecutions requested imposition of punishment by court martial or Defence Force magistrate
Punishment imposed by court martial
(1) Subitem (2) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to convene a court martial to take action under Part IV of the old DFDA in relation to a conviction for a service offence that was committed by a person before the commencement day; and
(b) the Registrar of Military Justice:
(i) had not convened the court martial; or
(ii) had convened the court martial, but the court martial had not begun to hear evidence relevant to determining what action should be taken.
(2) If this subitem applies, then:
(a) if a court martial had been convened before the commencement day--on the commencement day, the court martial is taken to have been dissolved; and
(b) on the commencement day, the Director of Military Prosecutions is taken to have:
(i) withdrawn the request; and
(ii) requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Punishment imposed by Defence Force magistrate
(3) Subitem (4) applies if, before the commencement day:
(a) the Director of Military Prosecutions requested the Registrar of Military Justice to refer a conviction for a service offence that was committed by a person before the commencement day to a Defence Force magistrate to take action under Part IV of the old DFDA; and
(b) the Registrar of Military Justice:
(i) had not referred the conviction; or
(ii) had referred the conviction, but the Defence Force magistrate had not begun to hear evidence relevant to determining what action should be taken.
(4) If this subitem applies, then:
(a) if the conviction had been referred to a Defence Force magistrate before the commencement day--on the commencement day, the reference is taken to have been terminated; and
(b) on the commencement day, the Director of Military Prosecutions is taken to have:
(i) withdrawn the request; and
(ii) requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(c) on and after the commencement day, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections to be punished by court martial or Defence Force magistrate
(5) If:
(a) before the commencement day, a person made an election under subsection 131(2A) or (3) of the old DFDA to be punished by a court martial or Defence Force magistrate in relation to his or her conviction; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
260 On or after the commencement day, Director of Military Prosecutions requests trial by court martial or Defence Force magistrate
Trial by court martial
(1) Subitem (2) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to convene a court martial to try a charge of a service offence that was committed by a person before the commencement day.
(2) If this subitem applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (2) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to refer a charge of a service offence that was committed by a person before the commencement day to a Defence Force magistrate for trial.
(4) If this item applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections made for trial by court martial or Defence Force magistrate
(5) If:
(a) after the commencement day, a person makes an election under subsection 131(1) of the old DFDA to have a charge against him or her tried by a court martial or Defence Force magistrate; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the charge to the Australian Military Court for trial;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
261 On or after commencement day, trial by court martial or Defence Force magistrate discontinued
Trial by court martial
(1) Subitem (2) applies if, on or after the commencement day:
(a) the Registrar of Military Justice dissolves a court martial under section 125 of the old DFDA; and
(b) the dissolution happens:
(i) after the court martial has convicted a person of a service offence committed before the commencement day; and
(ii) before the court martial has taken action under Part IV of the old DFDA in relation to the person.
(2) If this subitem applies, then:
(a) immediately after the court martial is dissolved, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(b) after the court martial is dissolved, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Trial by Defence Force magistrate
(3) Subitem (4) applies if, on or after the commencement day:
(a) the Registrar of Military Justice terminates a reference to a Defence Force magistrate under section 129A of the old DFDA in relation to a charge of, or conviction for, a service offence that was committed by a person before the commencement day; and
(b) the termination happens:
(i) in relation to a charge--after the person has been convicted but before the Defence Force magistrate has taken action under Part IV of the old DFDA in relation to the person; and
(ii) in relation to a conviction--before the Defence Force magistrate has taken action under Part IV of the old DFDA in relation to the person.
(4) If this subitem applies, then:
(a) immediately after the reference is terminated, the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA in relation to the person; and
(b) after the reference is terminated, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
262 On or after the commencement day, Director of Military Prosecutions requests imposition of punishment by court martial or Defence Force magistrate
Punishment imposed by court martial
(1) Subitem (2) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to convene a court martial to take action under Part IV of the old DFDA in relation to a conviction for a service offence that was committed before the commencement day.
(2) If this subitem applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Punishment imposed by Defence Force magistrate
(3) Subitem (4) applies if, on or after the commencement day, the Director of Military Prosecutions requests the Registrar of Military Justice to refer a conviction for a service offence that was committed by a person before the commencement day to a Defence Force magistrate to take action under Part IV of the old DFDA in relation to the person.
(4) If this subitem applies, then:
(a) immediately after the request is made, the Director of Military Prosecutions:
(i) is taken to have withdrawn the request; and
(ii) is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action under Part IV of the new DFDA; and
(b) after the request is made, the new law applies in relation to the service offence as if the offence had been committed after the commencement day.
Elections made for punishment by court martial or Defence Force magistrate
(5) If:
(a) after the commencement day, a person makes an election under subsection 131(2A) or (3) of the old DFDA to be punished by a court martial or Defence Force magistrate in relation to his or her conviction; and
(b) because of subitem (2) or (4), the Director of Military Prosecutions is taken to have requested the Registrar of the Australian Military Court to refer the conviction to the Australian Military Court to take action;
the person may withdraw the election by written notice to the Registrar of the Australian Military Court at any time before a date is fixed for hearing by the Court.
263 Registrar of Military Justice and Director of Military Prosecutions
(1) If:
(a) a person has been appointed as the Registrar of Military Justice before the commencement day; and
(b) the appointment is in force immediately before the commencement day;
then, on the commencement day:
(c) the appointment is taken to have included the appointment of the person as the Registrar of the Australian Military Court under section 188FB of the new DFDA; and
(d) the person is taken to have made and subscribed an oath or affirmation as the Registrar of the Australian Military Court before a Military Judge under section 188FF of the new DFDA.
(2) If:
(a) a person is appointed as the Registrar of the Australian Military Court under section 188FB of the new DFDA after the commencement day; and
(b) immediately before the appointment, there was a service offence that:
(i) was committed before the commencement day; and
(ii) had not been finally dealt with;
then:
(c) the appointment is taken to include the appointment of the person as the Registrar of Military Justice under section 188FB of the old DFDA; and
(d) when the person makes and subscribes an oath or affirmation as the Registrar of the Australian Military Court before a Military Judge under section 188FF of the new DFDA, the person is taken also to have made and subscribed an oath or affirmation as the Registrar of Military Justice before the Judge Advocate General under section 188FF of the old DFDA.
(3) The person who is the Director of Military Prosecutions immediately before the commencement day is taken, on the commencement day, to have made and subscribed an oath or affirmation before a Military Judge under section 188GJ of the new DFDA.
(4) If:
(a) a person is appointed as the Director of Military Prosecutions after the commencement day; and
(b) immediately before the appointment, there was a service offence that:
(i) was committed before the commencement day; and
(ii) had not been finally dealt with;
then, when the person makes and subscribes an oath or affirmation before a Military Judge under section 188GJ of the new DFDA, the person is taken also to have made and subscribed an oath or affirmation before the Judge Advocate General under section 188GJ of the old DFDA.
264 Regulations prescribing transitional matters
The Governor - General may make regulations in relation to transitional matters arising out of the amendments made by this Schedule.
Part 1 -- Defence Counsel Services
Defence Force Discipline Act 1982
1 Subsection 101F(2)
Omit "Judge Advocate General" (wherever occurring), substitute "Chief of the Defence Force".
2 Transitional provision
Despite the amendment of subsection 101F(2) of the Defence Force Discipline Act 1982 made by item 1 of this Schedule, a list that:
(a) was made under that subsection before the commencement of this item; and
(b) that is in force immediately before the commencement;
continues in force, and may be dealt with, after the commencement as if it had been made under that subsection as amended.
3 After subsection 101F(2)
Insert:
(2A) The Chief of the Defence Force may delegate his or her powers under subsection (2) to a member of the Defence Force who holds a rank that is not lower than the naval rank of captain, or the rank of colonel or group captain.
4 Subsection 137(1)
Omit "A superior authority shall", substitute "The Chief of the Defence Force must".
5 At the end of section 137
Add:
(4) The Chief of the Defence Force may delegate his or her powers under subsection (1) to a member of the Defence Force who holds a rank that is not lower than the naval rank of captain, or the rank of colonel or group captain.
Part 2 -- Chief of the Defence Force Commission of Inquiry
6 Paragraph 124(1)(gc)
After "boards of inquiry,", insert "Chief of the Defence Force commissions of inquiry,".
7 Subsections 124(2A) and (2C)
After "a board of inquiry,", insert "a Chief of the Defence Force commission of inquiry,".