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This is a Bill, not an Act. For current law, see the Acts databases.
MILITARY COURT OF AUSTRALIA BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Military Court of Australia Bill 2012
No. , 2012
(Attorney-General)
A Bill for an Act to establish the Military Court of
Australia, and for related purposes
i Military Court of Australia Bill 2012 No. , 2012
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Definitions
.........................................................................................
3
4
Crown to be bound ............................................................................. 6
5 Operation
of
Act
................................................................................
7
6 Application
of
Commonwealth laws to proceedings
determined outside Australia ............................................................. 7
7 Geographical
jurisdiction for offences ............................................... 7
Part 2--Military Court of Australia
8
Division 1--Introduction
8
8
Guide to this Part ............................................................................... 8
Division 2--Creation of the Military Court etc.
9
9 Creation
of
Military
Court etc. ........................................................... 9
10 Divisions
of
the
Military Court .......................................................... 9
Division 3--Judges and Federal Magistrates
10
Subdivision A--Appointment and terms and conditions: general
10
11 Appointment
....................................................................................
10
12
Judges and Federal Magistrates may hold office of another
court ................................................................................................. 11
13 Assignment
to
Divisions .................................................................. 11
14
Assignment to particular locations ................................................... 11
15 Resignation
......................................................................................
12
16 Removal
from
office
........................................................................
12
17 Style
.................................................................................................
12
18 Seniority
...........................................................................................
12
19
Acting Chief Justice ......................................................................... 12
20 Remuneration
etc.
............................................................................
13
21
Oath or affirmation of allegiance and office .................................... 14
Subdivision B--Other terms and conditions of Federal
Magistrates
15
22
Other terms and conditions of Federal Magistrates ......................... 15
23 Outside
work
....................................................................................
15
24 Leave
...............................................................................................
15
25 Other
terms
and
conditions .............................................................. 15
26
Disability and death benefits ............................................................ 16
Subdivision C--Miscellaneous
17
Military Court of Australia Bill 2012 No. , 2012 ii
27
Certain references in other laws to Judge of a superior court
etc. not to include Federal Magistrate .............................................. 17
Part 3--Management of the Military Court
18
Division 1--Introduction
18
28
Guide to this Part ............................................................................. 18
Division 2--Management responsibilities of Chief Justice etc.
19
29
Management of the administrative affairs of the Military
Court ................................................................................................ 19
30 Arrangements
with other courts ....................................................... 19
31 Arrangements
with
agencies and organisations ............................... 20
32
Arrangements with the Chief of the Defence Force ......................... 21
33
Arrangements for sharing courtrooms and other facilities ............... 23
34
Delegation of administrative powers of Chief Justice ..................... 23
Division 3--Registries
24
35 Establishment
of
registries ............................................................... 24
Division 4--Registrar
25
36 Functions
and
powers
......................................................................
25
37
Delegation of powers to Registrars .................................................. 25
Division 5--Other officers and staff of the Military Court etc.
28
38
Officers of the Military Court .......................................................... 28
39
Functions of officers other than the Registrar .................................. 28
40 Deputy
Registrars
............................................................................
29
41
Functions of the Sheriff and Deputy Sheriffs .................................. 29
42
Actions by or against the Sheriff or a Deputy Sheriff ...................... 30
43
Staff of the Military Court etc. ......................................................... 30
44
Engagement of consultants etc. ........................................................ 31
Division 6--Miscellaneous administrative matters
32
45
Seal of the Military Court ................................................................ 32
46 Writs
................................................................................................
32
47 Annual
report
...................................................................................
33
48
Proceedings arising out of administration of Military Court ........... 33
49 Oath
or
affirmation of office ............................................................ 33
Part 4--Jurisdiction of the Military Court: general
35
Division 1--Introduction
35
50
Guide to this Part ............................................................................. 35
Division 2--Arrangement of business of the Military Court etc.
36
51
Place of sitting ................................................................................. 36
iii Military Court of Australia Bill 2012 No. , 2012
52
Manner in which Military Court may be constituted ....................... 37
53
Arrangement of the business of the Military Court ......................... 38
54
Exercise of powers of Military Court in Divisions .......................... 39
55
Military Court divided in opinion .................................................... 40
56
Exercise of jurisdiction in open court and in Chambers .................. 40
Division 3--Other matters
42
57
Making of orders and issuing of writs ............................................. 42
58
Costs not to be awarded ................................................................... 42
59
Powers of Military Court extend within and outside Australia ........ 42
60 Prerogative
of
mercy unaffected ...................................................... 42
61
Contempt of court ............................................................................ 42
Part 5--Original jurisdiction of the Military Court
43
Division 1--Introduction
43
62
Guide to this Part ............................................................................. 43
Division 2--Original jurisdiction
44
63
Original jurisdiction of the Military Court ....................................... 44
64
Charges of service offences not to be dealt with on
indictment ........................................................................................ 44
65
Exercise of original jurisdiction ....................................................... 44
66
Referral of proceedings from one Division to the other
Division ........................................................................................... 46
Division 3--Instituting proceedings etc.
48
67
Instituting proceedings in the Military Court ................................... 48
68
Condonation of service offence not to prevent institution of
proceeding ....................................................................................... 48
69
Charge sheet may include charge of alternative offence .................. 48
70
Single charge sheet can cover multiple accused persons ................. 48
71
Separating one or more accused persons from a single charge ........ 48
72
Single charge sheet can include multiple charges ............................ 49
73
Separating one or more charges from a single charge sheet ............ 49
74 Amending
charges
...........................................................................
50
Division 4--Pre-trial matters
52
75 Pre-trial
hearings
..............................................................................
52
76
Pre-trial and ongoing disclosure ...................................................... 53
77
Disclosure of case for the prosecution ............................................. 53
78
Copies of things need not be provided if impracticable etc. ............ 55
79
Personal details need not be provided .............................................. 55
80
Things need not be disclosed to a party more than once .................. 56
81 Consequences
of
disclosure requirements ....................................... 57
Military Court of Australia Bill 2012 No. , 2012 iv
82
Restricting further disclosure of disclosed material ......................... 57
83
Restricting admissibility of disclosed material as evidence in
other proceedings ............................................................................. 58
84 Objecting
to
charges ........................................................................ 59
Division 5--Matters relating to pleas, the trial and verdicts
61
85
Practice and procedure applicable to the trial .................................. 61
86 Entering
pleas
..................................................................................
61
87
Pleading to some charges in satisfaction of other charges ............... 61
88
Pleading to different service offences capable of being
supported by charge included in charge sheet.................................. 62
89 Changing
pleas
.................................................................................
62
90
Military Court's verdict if no case to answer ................................... 63
91
Consequences of guilty pleas and guilty verdicts ............................ 63
92 Consequences
of
not guilty verdicts ................................................ 65
Part 6--Appellate jurisdiction of the Military Court
66
Division 1--Introduction
66
93
Guide to this Part ............................................................................. 66
Division 2--Bringing appeals
67
94 Allowable
appeals
............................................................................
67
95
Leave to appeal ................................................................................ 67
96 Who
may
appeal
..............................................................................
67
97
Time for appealing ........................................................................... 68
98
Exercise of appellate jurisdiction ..................................................... 69
99
Stay of proceedings and suspension of orders ................................. 70
100
Right to attend .................................................................................. 70
101
Practice and procedure applicable to appeal .................................... 71
102
Evidence on appeal .......................................................................... 71
103
Prison sentence does not include time on bail ................................. 72
Division 3--Powers of Military Court on appeal
73
104
Military Court may give such judgement as is appropriate ............. 73
105
When to allow appeals ..................................................................... 73
106
Allowing appeals against convictions .............................................. 74
107
Allowing appeals against sentences ................................................. 74
108
Allowing appeals against bail, bail forfeiture or interlocutory
judgements and decisions (including about custody) ....................... 74
109 Costs
................................................................................................
75
110 New
trials
.........................................................................................
76
Division 4--Other matters
77
111
Cases stated and questions reserved ................................................ 77
v Military Court of Australia Bill 2012 No. , 2012
112 Questions
referred after trial ............................................................ 77
Part 7--Appeals to the High Court
78
113
Appeals to the High Court ............................................................... 78
Part 8--Custody and bail
80
Division 1--Introduction
80
114
Guide to this Part ............................................................................. 80
Division 2--Custodial matters
81
115
Arrangements for accused person if proceeding adjourned ............. 81
Division 3--Granting bail
82
116
Applying for bail .............................................................................. 82
117 Granting
bail
....................................................................................
82
118
Bail may be granted subject to conditions ....................................... 82
119
Bail to be stayed pending appeal ..................................................... 83
120 Bail
undertakings etc. ...................................................................... 84
121
Effect of granting bail ...................................................................... 85
122
Seeking discharge from undertaking to give security ...................... 85
123
Dealings with property given as security for bail ............................ 85
Division 4--Reconsidering bail orders
87
124
Reconsidering bail--discharge of security or accused person
fails to comply with bail undertaking .............................................. 87
125 Reconsidering
bail--change in circumstances................................. 87
126
Consequences if bail is varied or revoked ....................................... 88
Division 5--Further consequences if accused person fails to
appear in accordance with bail undertaking
89
127
Offence for failing to appear before the Military Court ................... 89
128 Notice
of
proposed forfeiture ........................................................... 89
129 Ordering
forfeiture
...........................................................................
90
130
When forfeiture orders take effect ................................................... 91
131
Effect of forfeiture orders ................................................................ 91
Division 6--When bail ends
94
132
Continuing bail orders ..................................................................... 94
133
Bail discharged if the Military Court discharges the accused .......... 94
134
Continuing security undertakings when bail ends ........................... 94
135 Returning
security
when bail ends ................................................... 95
Division 7--Other matters
96
136
Admissibility of certain matters ....................................................... 96
137
Indemnifying a person providing security ....................................... 97
Military Court of Australia Bill 2012 No. , 2012 vi
Part 9--Sentences and orders
98
Division 1--Introduction
98
138
Guide to this Part ............................................................................. 98
Division 2--Sentencing principles
99
139 Sentencing
principles
.......................................................................
99
Division 3--Punishments
100
140
Kinds of punishments that may be imposed .................................. 100
141
Restrictions on power to impose punishments ............................... 101
142
Imposition of fines ......................................................................... 103
143 Concurrent
or
cumulative punishments ......................................... 103
144
Taking other offences into consideration ....................................... 105
145
Commencement of sentences and non-parole periods ................... 106
Division 4--Suspension of punishments
108
146
Suspension of detention ................................................................. 108
147
Suspension of fines ........................................................................ 108
148 Revocation
of
suspension of punishment ....................................... 108
Division 5--Remission of punishments
110
149 Remission
of
suspended punishment ............................................. 110
150
Remission of punishment of detention on imprisonment............... 110
Division 6--Restitution orders and reparation orders
112
151 Restitution
orders
...........................................................................
112
152 Reparation
orders
...........................................................................
113
Part 10--Persons found unfit to be tried and persons acquitted
because of mental impairment
115
153 Persons
found
unfit
to be tried ....................................................... 115
154
Persons acquitted because of mental impairment at time of
conduct constituting service offence .............................................. 116
Part 11--Practice and procedure
118
Division 1--Introduction
118
155
Guide to this Part ........................................................................... 118
Division 2--General
119
156
Practice and procedure to be in accordance with Military
Court Rules .................................................................................... 119
157 Record
of
proceedings
...................................................................
119
158 Access
to
record
of proceedings .................................................... 120
Division 3--Conduct of proceedings
122
159
Accused person to be present at hearing ........................................ 122
vii Military Court of Australia Bill 2012 No. , 2012
160
Change of venue ............................................................................ 122
161
Formal defects not to invalidate ..................................................... 122
Division 4--Evidence
123
162 Application
of
Evidence (Miscellaneous Provisions) Act
1991 of the Australian Capital Territory ........................................ 123
163
Evidence to be given orally ........................................................... 123
164
Orders and commissions for examination of witnesses ................. 123
165
Oaths and affirmations ................................................................... 124
166
Swearing of affidavits etc. ............................................................. 124
167 Protecting
witnesses etc. ................................................................ 125
168
Prohibition or restriction on publication of evidence etc. .............. 126
169
Offences by witness ....................................................................... 126
Division 5--Use of video links or audio links
128
170
Testimony by video link or audio link ........................................... 128
171
Appearances or submissions of persons by video link or
audio link ....................................................................................... 128
172
Conditions for use of video links and audio links .......................... 129
173
Putting documents to a person by video link or audio link ............ 131
174
Administration of oaths and affirmations ...................................... 132
175
New Zealand matters ..................................................................... 132
Division 6--Orders and judgements
133
176 Orders
............................................................................................
133
177 Reserved
judgements
.....................................................................
133
178
Recovery of amounts due under order of Military Court ............... 133
Division 7--Military Court Rules
135
179 Military
Court Rules ...................................................................... 135
180
Requirements relating to the making of Military Court Rules ....... 136
Part 12--Miscellaneous
137
181
Certain provisions of the Crimes Act 1914 do not apply or
apply with modifications ............................................................... 137
182 Regulations
....................................................................................
137
Schedule 1--Service offences to be dealt with by the
Appellate and Superior Division
138
Military Court of Australia Bill 2012 No. , 2012 1
A Bill for an Act to establish the Military Court of
1
Australia, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act may be cited as the Military Court of Australia Act 2012.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
Part 1 Preliminary
Section 2
2 Military Court of Australia Bill 2012 No. , 2012
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
182
A single day to be fixed by Proclamation.
A Proclamation must not specify a day that
occurs before the day the Military Court of
Australia (Transitional Provisions and
Consequential Amendments) Act 2012
receives the Royal Assent.
However, if the provision(s) do not
commence within the period of 6 months
beginning on the day the Military Court of
Australia (Transitional Provisions and
Consequential Amendments) Act 2012
receives the Royal Assent, they commence
on the day after the end of that period.
3. Schedule 1
At the same time as the provision(s) covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
(3) Proceedings are not to be instituted in the Military Court of
10
Australia before the commencement of Part 1 of Schedule 1 to the
11
Military Court of Australia (Transitional Provisions and
12
Consequential Amendments) Act 2012.
13
Preliminary Part 1
Section 3
Military Court of Australia Bill 2012 No. , 2012 3
3 Definitions
1
In this Act:
2
accused person:
3
(a) in relation to a proceeding other than an appeal proceeding
4
under Part 6--means a person who has been charged with a
5
service offence; and
6
(b) in relation to an appeal proceeding under Part 6--means the
7
person who was the accused person in the proceeding
8
appealed from.
9
ancillary offence: see subsection 65(6).
10
Appellate and Superior Division means the Appellate and Superior
11
Division of the Military Court.
12
audio link means facilities (for example, telephone facilities) that
13
enable audio communication between persons in different places.
14
Australia, when used in a geographical sense, includes the external
15
Territories.
16
Australian court means a federal court or a court of a State or
17
Territory.
18
bail order means an order made under subsection 117(1).
19
bail undertaking means an undertaking under paragraph 120(1)(a).
20
charge has the same meaning as in the Defence Force Discipline
21
Act 1982.
22
charge sheet means a charge sheet in the form prescribed by the
23
Military Court Rules.
24
Chief Justice means the Chief Justice of the Military Court, and
25
includes a Judge for the time being performing the duties and
26
exercising the powers of the Chief Justice.
27
civil court has the same meaning as in the Defence Force
28
Discipline Act 1982.
29
Part 1 Preliminary
Section 3
4 Military Court of Australia Bill 2012 No. , 2012
civil court offence has the same meaning as in the Defence Force
1
Discipline Act 1982.
2
custodial offence has the same meaning as in the Defence Force
3
Discipline Act 1982.
4
defence civilian has the same meaning as in the Defence Force
5
Discipline Act 1982.
6
Defence Department means the Department administered by the
7
Defence Minister.
8
defence member has the same meaning as in the Defence Force
9
Discipline Act 1982.
10
Defence Minister means the Minister administering the Defence
11
Force Discipline Act 1982.
12
Deputy Registrar means a Deputy Registrar of the Military Court.
13
detention (in the context of a reference to a punishment imposed or
14
that may be imposed in relation to a service offence) means
15
detention in a detention centre.
16
detention centre has the same meaning as in the Defence Force
17
Discipline Act 1982.
18
Director of Military Prosecutions has the same meaning as in the
19
Defence Force Discipline Act 1982.
20
Division, in relation to the Military Court, means the Appellate and
21
Superior Division or the General Division.
22
Federal Court means the Federal Court of Australia.
23
Federal Magistrate means a Federal Magistrate of the Military
24
Court.
25
forfeiture order means an order made under subsection 129(1).
26
Full Court means a Full Court constituted in accordance with
27
section 52.
28
Preliminary Part 1
Section 3
Military Court of Australia Bill 2012 No. , 2012 5
General Division means the General Division of the Military
1
Court.
2
good behaviour order means an order under paragraph 20(1)(a) or
3
(b) of the Crimes Act 1914.
4
good behaviour undertaking means a security, given by a person
5
in accordance with paragraph 20(1)(a) or (b) of the Crimes Act
6
1914, that the person will be of good behaviour for a particular
7
period.
8
Judge means a Judge of the Military Court (including the Chief
9
Justice).
10
judgement means:
11
(a) a judgement, decree or order, whether final or interlocutory;
12
or
13
(b)
a
sentence;
14
and includes a conviction.
15
mental impairment has the same meaning as in section 7.3 of the
16
Criminal Code.
17
Military Court means the Military Court of Australia created by
18
this Act.
19
Military Court Rules means the Rules of Court made under this
20
Act.
21
non-commissioned officer, in relation to the Australian Defence
22
Force, has the same meaning as in the Defence Force Discipline
23
Act 1982.
24
officer, in relation to the Australian Defence Force, has the same
25
meaning as in the Defence Force Discipline Act 1982.
26
party, to a proceeding, means the accused person and the Director
27
of Military Prosecutions.
28
proceeding means a proceeding in a court (whether between
29
parties or not) and includes:
30
Part 1 Preliminary
Section 4
6 Military Court of Australia Bill 2012 No. , 2012
(a) an incidental proceeding in the course of, or in connection
1
with, a proceeding; and
2
(b)
an
appeal.
3
Registrar means the Registrar of the Federal Court of Australia
4
appointed under section 18C of the Federal Court of Australia Act
5
1976.
6
Schedule 1 offence: see subsection 65(5).
7
sentence includes a punishment.
8
service offence has the same meaning as in the Defence Force
9
Discipline Act 1982.
10
service police member means a person who is a police member
11
within the meaning of the Defence Force Discipline Act 1982.
12
service tribunal has the same meaning as in the Defence Force
13
Discipline Act 1982.
14
Territory offence has the same meaning as in the Defence Force
15
Discipline Act 1982.
16
third party security undertaking means an undertaking under
17
paragraph 120(1)(b).
18
unfit to be tried includes unfit to plead.
19
video link means facilities (for example, closed-circuit television
20
facilities) that enable audio and visual communication between
21
persons in different places.
22
4 Crown to be bound
23
(1) This Act binds the Crown in each of its capacities.
24
(2) This Act does not make the Crown liable to be prosecuted for an
25
offence.
26
Preliminary Part 1
Section 5
Military Court of Australia Bill 2012 No. , 2012 7
5 Operation of Act
1
This Act applies both within and outside Australia, and extends to
2
every external Territory.
3
6 Application of Commonwealth laws to proceedings determined
4
outside Australia
5
If a law of the Commonwealth would apply in relation to a
6
proceeding, or a part of a proceeding, if it were heard and
7
determined by the Military Court sitting in Australia, then, subject
8
to section 7 and to the extent that the law would not otherwise
9
apply outside Australia, the law applies in relation to the
10
proceeding, or the part of the proceeding, if it is heard and
11
determined by the Military Court sitting outside Australia.
12
Note:
Subsection 51(2) provides that the Military Court may, in certain
13
circumstances, sit at a place outside Australia to hear and determine a
14
proceeding or a part of a proceeding.
15
7 Geographical jurisdiction for offences
16
Section 15.1 of the Criminal Code (extended geographical
17
jurisdiction--category A) applies to an offence against this Act.
18
19
Part 2 Military Court of Australia
Division 1 Introduction
Section 8
8 Military Court of Australia Bill 2012 No. , 2012
Part 2--Military Court of Australia
1
Division 1--Introduction
2
8 Guide to this Part
3
This Part provides for the creation of the Military Court of
4
Australia under Chapter III of the Constitution.
5
Division 2 creates the Military Court. The Military Court
6
comprises 2 Divisions (the Appellate and Superior Division and
7
the General Division) and consists of the Chief Justice, other
8
Judges and Federal Magistrates.
9
Division 3 deals with the appointment and terms and conditions of
10
the Judges and Federal Magistrates.
11
12
Military Court of Australia Part 2
Creation of the Military Court etc. Division 2
Section 9
Military Court of Australia Bill 2012 No. , 2012 9
Division 2--Creation of the Military Court etc.
1
9 Creation of Military Court etc.
2
(1) A federal court, to be known as the Military Court of Australia, is
3
created by this Act.
4
(2) The Military Court of Australia is a superior court of record.
5
(3) The Military Court consists of the following justices:
6
(a) a Chief Justice;
7
(b) such other Judges as from time to time hold office in
8
accordance with this Act;
9
(c) such Federal Magistrates as from time to time hold office in
10
accordance with this Act.
11
10 Divisions of the Military Court
12
(1) For the purposes of the organisation and conduct of the business of
13
the Military Court, the Military Court comprises the following 2
14
Divisions:
15
(a) the Appellate and Superior Division;
16
(b) the General Division.
17
(2) Every proceeding in the Military Court must be instituted, heard
18
and determined in a Division.
19
20
Part 2 Military Court of Australia
Division 3 Judges and Federal Magistrates
Section 11
10 Military Court of Australia Bill 2012 No. , 2012
Division 3--Judges and Federal Magistrates
1
Subdivision A--Appointment and terms and conditions:
2
general
3
11 Appointment
4
(1) A Judge is to be appointed by the Governor-General by
5
commission.
6
(2) A Federal Magistrate is to be appointed by the Governor-General
7
by commission.
8
(3) A person must not be appointed as a Judge or a Federal Magistrate
9
unless:
10
(a)
the
person:
11
(i) is or has been a judge of another court created by the
12
Parliament; or
13
(ii) has been a judge or a magistrate of a court of a State or
14
Territory; or
15
(iii) has been enrolled as a legal practitioner of the High
16
Court or of the Supreme Court of a State or Territory for
17
not less than 5 years; and
18
(b) by reason of experience or training, the person understands
19
the nature of service in the Australian Defence Force; and
20
(c) the Defence Minister has been consulted in relation to the
21
appointment.
22
Note:
A Federal Magistrate of the Federal Magistrates Court is a judge of
23
another court created by the Parliament as referred to in
24
subparagraph (3)(a)(i): see subsection 8(4) of the Federal Magistrates
25
Act 1999.
26
(4) A person must not be appointed as a Judge or a Federal Magistrate
27
if he or she is a member of the Australian Defence Force.
28
(5) A person must not be appointed as a Judge or a Federal Magistrate
29
if he or she has attained the age of 70 years.
30
(6) The appointment of a Judge or a Federal Magistrate is to be for a
31
term expiring upon his or her attaining the age of 70 years.
32
Military Court of Australia Part 2
Judges and Federal Magistrates Division 3
Section 12
Military Court of Australia Bill 2012 No. , 2012 11
(7) A Federal Magistrate may be appointed on a part-time basis.
1
12 Judges and Federal Magistrates may hold office of another court
2
(1) Despite any other Act, a person may hold office at the one time as
3
a Judge of the Military Court and as a judge of another court (other
4
than the Federal Magistrates Court) created by the Parliament.
5
(2) Despite any other Act, a person may hold office at the one time as
6
a Federal Magistrate of the Military Court and as a Federal
7
Magistrate of the Federal Magistrates Court.
8
13 Assignment to Divisions
9
(1) The Chief Justice and the other Judges of the Military Court are
10
assigned to the Appellate and Superior Division.
11
(2) Federal Magistrates of the Military Court are assigned to the
12
General Division.
13
14 Assignment to particular locations
14
(1) The commission of appointment of a Judge or a Federal Magistrate
15
must assign the Judge or Federal Magistrate to a particular
16
location.
17
(2) The Judge or Federal Magistrate:
18
(a) must not sit at another location on a permanent basis unless
19
the Attorney-General and the Chief Justice consent; and
20
(b) cannot be required to sit at another location on a permanent
21
basis unless the Judge or Federal Magistrate consents (in
22
addition to the consents required by paragraph (a)); and
23
(c) may sit at another location on a temporary basis.
24
(3) In deciding whether to consent as mentioned in paragraph (2)(a),
25
the Chief Justice has the same protection and immunity as if he or
26
she were making that decision as, or as a member of, the Military
27
Court.
28
(4) Despite section 39B of the Judiciary Act 1903, the Federal Court
29
does not have jurisdiction with respect to a matter relating to the
30
Part 2 Military Court of Australia
Division 3 Judges and Federal Magistrates
Section 15
12 Military Court of Australia Bill 2012 No. , 2012
exercise by the Attorney-General or the Chief Justice of the power
1
to consent as mentioned in paragraph (2)(a).
2
15 Resignation
3
(1) A Judge or a Federal Magistrate may resign office by writing under
4
his or her hand addressed to the Governor-General.
5
(2) The resignation takes effect on:
6
(a) the day on which it is received by the Governor-General; or
7
(b) if a later day is specified in the resignation--that later day.
8
16 Removal from office
9
A Judge or a Federal Magistrate must not be removed from office
10
except by the Governor-General, on an address from both Houses
11
of the Parliament in the same session, praying for his or her
12
removal on the ground of proved misbehaviour or incapacity.
13
17 Style
14
(1) A Judge, or former Judge, is entitled to be styled "The
15
Honourable".
16
(2) A Federal Magistrate is to be styled "Federal Magistrate (name)"
17
or "(name) FM".
18
18 Seniority
19
(1) The Chief Justice is senior to all other Judges and to the Federal
20
Magistrates.
21
(2) The other Judges have seniority according to:
22
(a) the dates on which their commissions took effect; or
23
(b) if the commissions of 2 or more of them took effect on the
24
same date--the precedence assigned to them by their
25
commissions.
26
19 Acting Chief Justice
27
(1)
Whenever:
28
Military Court of Australia Part 2
Judges and Federal Magistrates Division 3
Section 20
Military Court of Australia Bill 2012 No. , 2012 13
(a) the Chief Justice is absent from duty; or
1
(b) there is a vacancy in the office of Chief Justice;
2
the next senior Judge who is available and willing to do so is to
3
perform the duties and may exercise the powers of the Chief
4
Justice.
5
(2) A Judge who is, under subsection (1), performing the duties and
6
exercising the powers of the Chief Justice is to be called the Acting
7
Chief Justice of the Military Court.
8
20 Remuneration etc.
9
(1) Judges and Federal Magistrates are to be paid such remuneration
10
(within the meaning of Part II of the Remuneration Tribunal Act
11
1973) as is determined by the Remuneration Tribunal.
12
(2) Subsection (1) has effect subject to the Remuneration Tribunal Act
13
1973.
14
Note 1:
Subsection 3(2) of the Remuneration Tribunal Act 1973 provides that
15
a reference in Part II of that Act to remuneration is to be read as
16
including a reference to annual allowances.
17
Note 2:
Under subsection 7(4) of that Act, the Remuneration Tribunal may
18
determine any matter significantly related to the remuneration of a
19
Judge or Federal Magistrate of the Military Court.
20
(3) The remuneration of Judges accrues from day to day and is payable
21
monthly.
22
(4) To avoid doubt, for the purposes of paragraph 7(5B)(a) of the
23
Remuneration Tribunal Act 1973, a Federal Magistrate is the
24
holder of an office of Justice of a federal court.
25
(5) Federal Magistrates are to be treated as if they were Justices of a
26
court of record for the purpose of determining:
27
(a) their remuneration; and
28
(b) other terms and conditions that apply in relation to them.
29
(6) The remuneration of a Judge or a Federal Magistrate is not to be
30
diminished during his or her continuance in office.
31
Part 2 Military Court of Australia
Division 3 Judges and Federal Magistrates
Section 21
14 Military Court of Australia Bill 2012 No. , 2012
21 Oath or affirmation of allegiance and office
1
(1) Before proceeding to discharge the duties of his or her office, a
2
Judge or a Federal Magistrate must take an oath or affirmation in
3
accordance with the form set out in subsection (2) or (3)
4
(whichever is applicable).
5
(2) This is the form of oath:
6
I,
(name), do swear that I will bear true allegiance to Her Majesty
7
Queen Elizabeth the Second, Her Heirs and Successors according
8
to law, that I will well and truly serve Her in the Office of (Chief
9
Justice, Judge or Federal Magistrate, as the case may be) of the
10
Military Court of Australia and that I will do right to all manner of
11
people according to law without fear or favour, affection or ill-will.
12
So help me God!
13
(3) This is the form of affirmation:
14
I,
(name), do solemnly and sincerely promise and declare that (as
15
above, omitting the words "So help me God!").
16
(4) A Judge must take an oath or affirmation under subsection (1)
17
before:
18
(a) the Governor-General; or
19
(b) the Chief Justice or a Justice of the High Court; or
20
(c) another Judge; or
21
(d) a judge of another court created by the Parliament.
22
(5) A Federal Magistrate must take an oath or affirmation under
23
subsection (1) before:
24
(a) the Governor-General; or
25
(b) the Chief Justice or a Justice of the High Court; or
26
(c) a Judge; or
27
(d) another Federal Magistrate; or
28
(e) a judge of another court created by the Parliament.
29
Military Court of Australia Part 2
Judges and Federal Magistrates Division 3
Section 22
Military Court of Australia Bill 2012 No. , 2012 15
Subdivision B--Other terms and conditions of Federal
1
Magistrates
2
22 Other terms and conditions of Federal Magistrates
3
This Subdivision sets out other terms and conditions that apply in
4
relation to Federal Magistrates.
5
23 Outside work
6
(1) A Federal Magistrate must not engage in paid work outside the
7
duties of the Federal Magistrate's office if that work is
8
incompatible with the holding of a judicial office under Chapter III
9
of the Constitution.
10
(2) A Federal Magistrate must not:
11
(a) engage in work as a legal practitioner; or
12
(b) engage in work as an employee of, or consultant to, a legal
13
practice.
14
(3) This section does not, by implication, limit the application to a
15
Federal Magistrate of any doctrine of constitutional
16
incompatibility.
17
(4) In this section:
18
paid work means work for financial gain or reward (whether as an
19
employee, a self-employed person or otherwise).
20
24 Leave
21
A Federal Magistrate has the recreation leave entitlements that are
22
determined by the Remuneration Tribunal.
23
25 Other terms and conditions
24
(1) A Federal Magistrate holds office on such terms and conditions (if
25
any) in relation to matters not covered by this Act as are specified
26
in a written determination made by the Governor-General for the
27
purposes of this subsection.
28
Part 2 Military Court of Australia
Division 3 Judges and Federal Magistrates
Section 26
16 Military Court of Australia Bill 2012 No. , 2012
(2) The Minister must cause a copy of a determination under
1
subsection (1) to be tabled in each House of the Parliament.
2
(3) Either House may, following a motion upon notice, pass a
3
resolution disallowing the determination. To be effective, the
4
resolution must be passed within 15 sittings days of the House after
5
the copy of the determination was tabled in the House.
6
(4) If neither House passes such a resolution, the determination takes
7
effect on the day immediately after the last day upon which such a
8
resolution could have been passed.
9
26 Disability and death benefits
10
(1) The provisions of Division 2 of Part 2 of Schedule 1 to the Federal
11
Magistrates Act 1999, and any provisions of that Act that define
12
expressions used in that Division, apply as if those provisions:
13
(a) were incorporated in this Subdivision; and
14
(b) were modified as provided by subsection (2).
15
(2) The modifications referred to in subsection (1) are as follows:
16
(a) each reference to a Federal Magistrate is to be read as a
17
reference to a Federal Magistrate of the Military Court;
18
(b) the reference in paragraph 9B(3)(a) of Division 2 to
19
subclause 8(1) is to be read as a reference to subsection 25(1)
20
of this Act;
21
(c) the reference in subclause 9B(4) of Division 2 to clause 5 is
22
to be read as a reference to section 20 of this Act;
23
(d) the references in subclauses 9C(2) and 9D(2) of Division 2 to
24
subclause 8(1) are to be read as references to subsection
25
25(1) of this Act;
26
(e) a reference to Division 2 of Part 2 of Schedule 1 to the
27
Federal Magistrates Act 1999, or to a provision of that
28
Division, is to be read as a reference to that Division or that
29
provision as it applies because of this section;
30
(f) clause 9G of Division 2 is to be omitted;
31
(g) the following paragraph is to be inserted after paragraph (b)
32
of the definition of prior judicial service in section 5 of the
33
Federal Magistrates Act 1999:
34
Military Court of Australia Part 2
Judges and Federal Magistrates Division 3
Section 27
Military Court of Australia Bill 2012 No. , 2012 17
"(ba) a Federal Magistrate of the Federal Magistrates Court;".
1
(3) The following are to be paid out of the Consolidated Revenue
2
Fund, which is appropriated accordingly:
3
(a) pensions under clause 9B;
4
(b) Commonwealth superannuation contributions under
5
clause 9C;
6
(c) payments under clause 9D.
7
(4) A reference in subsection (3) to clause 9B, 9C or 9D is a reference
8
to clause 9B, 9C or 9D of Division 2 of Part 2 of Schedule 1 to the
9
Federal Magistrates Act 1999, as that clause applies because of
10
this section.
11
Subdivision C--Miscellaneous
12
27 Certain references in other laws to Judge of a superior court etc.
13
not to include Federal Magistrate
14
(1) In any other law of the Commonwealth, the expressions "Judge of
15
a superior court" and "Judges of a superior court" do not include a
16
Federal Magistrate.
17
Note:
See, for example, section 48C of the Australian Capital Territory
18
(Self-Government) Act 1988.
19
(2) A reference in any other law of the Commonwealth to a period
20
during which a person has served as a Judge in a superior court
21
does not include a reference to a period during which the person
22
served as a Federal Magistrate.
23
Note:
See, for example, section 34B of the Australian Security Intelligence
24
Organisation Act 1979.
25
26
Part 3 Management of the Military Court
Division 1 Introduction
Section 28
18 Military Court of Australia Bill 2012 No. , 2012
Part 3--Management of the Military Court
1
Division 1--Introduction
2
28 Guide to this Part
3
This Part deals with the management of the Military Court.
4
Division 2 sets out the management responsibilities of the Chief
5
Justice.
6
Division 3 provides for the establishment of registries.
7
Division 4 is about the Registrar.
8
Division 5 is about other officers and staff.
9
Division 6 deals with the seal of the Military Court and other
10
miscellaneous matters.
11
12
Management of the Military Court Part 3
Management responsibilities of Chief Justice etc. Division 2
Section 29
Military Court of Australia Bill 2012 No. , 2012 19
Division 2--Management responsibilities of Chief Justice
1
etc.
2
29 Management of the administrative affairs of the Military Court
3
(1) The Chief Justice is responsible for managing the administrative
4
affairs of the Military Court.
5
Note:
The Chief Justice is assisted in this role by the Registrar: see
6
section 36.
7
(2) For that purpose, the Chief Justice has power to do all things that
8
are necessary or convenient to be done, including, on behalf of the
9
Commonwealth:
10
(a) entering into contracts; and
11
(b) acquiring or disposing of personal property.
12
(3) The powers given to the Chief Justice under subsection (2) are in
13
addition to any powers given to the Chief Justice by any other
14
provision of this Act or by any other Act.
15
(4) Despite subsection (2), the Chief Justice must not enter into a
16
contract under which the Commonwealth is to pay or receive an
17
amount exceeding:
18
(a)
$250,000;
or
19
(b) if a higher amount is prescribed--that higher amount;
20
except with the Attorney-General's approval.
21
30 Arrangements with other courts
22
(1) The Chief Justice may arrange with the chief judicial officer
23
(however described) of another Australian court for an officer or
24
officers of that court to perform on behalf of the Military Court any
25
or all of the following functions:
26
(a) the receipt of documents to be lodged with or filed in the
27
Military Court;
28
(b) the signing and issuing of writs, commissions and process for
29
the purposes of any proceedings in the Military Court;
30
(c) the authentication of orders of the Military Court;
31
Part 3 Management of the Military Court
Division 2 Management responsibilities of Chief Justice etc.
Section 31
20 Military Court of Australia Bill 2012 No. , 2012
(d) the administration of oaths and affirmations, and the
1
witnessing of affidavits, for the purposes of any proceedings
2
in the Military Court;
3
(e) such other non-judicial functions as are permitted by the
4
Military Court Rules to be performed under such an
5
arrangement;
6
(f) such other non-judicial functions as the Military Court
7
considers appropriate.
8
(2) If an arrangement under subsection (1) is in force in relation to the
9
performance by an officer of an Australian court of a function on
10
behalf of the Military Court, the officer may perform that function
11
despite any other provision of this Act or any other law of the
12
Commonwealth.
13
(3) A function performed on behalf of the Military Court in
14
accordance with an arrangement under subsection (1) has effect as
15
if the function had been performed by the Military Court.
16
(4) Copies of an arrangement under subsection (1) are to be made
17
available for inspection by members of the public.
18
(5) An instrument by which an arrangement under subsection (1) is
19
made is not a legislative instrument.
20
(6) For the purposes of this section, a member of the staff of an
21
Australian court is taken to be an officer of that court.
22
31 Arrangements with agencies and organisations
23
(1) The Chief Justice may arrange with the chief executive officer
24
(however described) of:
25
(a) an agency of the Commonwealth, a State or a Territory; or
26
(b)
another
organisation;
27
for an employee or employees (other than a member of the
28
Australian Defence Force) of the agency or organisation:
29
(c) to receive, on behalf of the Military Court, documents to be
30
lodged with or filed in the Military Court; or
31
(d) to perform, on behalf of the Military Court, other non-judicial
32
functions of the Military Court.
33
Management of the Military Court Part 3
Management responsibilities of Chief Justice etc. Division 2
Section 32
Military Court of Australia Bill 2012 No. , 2012 21
(2) If an arrangement under subsection (1) is in force in relation to the
1
performance by an employee of an agency or organisation of a
2
function on behalf of the Military Court, the employee may
3
perform that function despite any other provision of this Act or any
4
other law of the Commonwealth.
5
(3) A function performed on behalf of the Military Court in
6
accordance with an arrangement under subsection (1) has effect as
7
if the function had been performed by the Military Court.
8
(4) Copies of an arrangement under subsection (1) are to be made
9
available for inspection by members of the public.
10
(5) An instrument by which an arrangement under subsection (1) is
11
made is not a legislative instrument.
12
32 Arrangements with the Chief of the Defence Force
13
(1) The Chief Justice may arrange with the Chief of the Defence Force
14
for a member or members of the Australian Defence Force to do
15
either or both of the following:
16
(a) provide administrative assistance to the Military Court in
17
relation to proceedings in the Military Court;
18
(b) act as a means of liaison between the Defence Department
19
and the Military Court in relation to the administrative
20
arrangements of the Military Court.
21
(2) Despite any other provision of this Act or any other law of the
22
Commonwealth, a member of the Australian Defence Force:
23
(a) is subject to the direction and control of the Chief Justice and
24
the Registrar; and
25
(b) is not subject to the direction or control of any other person
26
or body;
27
in relation to the provision of administrative or liaison assistance in
28
accordance with an arrangement under subsection (1).
29
(3) Without limiting subsection (2), a member of the Australian
30
Defence Force is not subject to military command or to the
31
Defence Force Discipline Act 1982 in relation to the provision of
32
administrative or liaison assistance in accordance with an
33
arrangement under subsection (1).
34
Part 3 Management of the Military Court
Division 2 Management responsibilities of Chief Justice etc.
Section 32
22 Military Court of Australia Bill 2012 No. , 2012
Note:
Subsection (3) has effect, in relation to a member of the Australian
1
Defence Force who is providing administrative or liaison assistance in
2
accordance with an arrangement under subsection (1), only so far as
3
the member acts in accordance with the arrangement. The member
4
remains otherwise subject to military command and the Defence Force
5
Discipline Act 1982.
6
(4) In providing administrative or liaison assistance in accordance with
7
an arrangement under subsection (1), members of the Australian
8
Defence Force are bound by the Code of Conduct (within the
9
meaning of the Public Service Act 1999).
10
(5) The Registrar may determine, in accordance with the procedures
11
established under subsection 15(3) of the Public Service Act 1999,
12
whether a member of the Australian Defence Force has breached
13
the Code of Conduct in providing administrative or liaison
14
assistance in accordance with an arrangement under subsection (1).
15
(6) If the Registrar determines that a member of the Australian
16
Defence Force has breached the Code of Conduct in providing
17
administrative or liaison assistance in accordance with an
18
arrangement under subsection (1), then the member is taken not to
19
have acted in accordance with the arrangement, to the extent of the
20
breach.
21
Note:
The member's conduct, to the extent that it is taken not to be in
22
accordance with the arrangement, may constitute an offence against
23
the Defence Force Discipline Act 1982.
24
(7) For the purposes of subsections (4), (5) and (6):
25
(a) a reference in the Code of Conduct to an APS employee is to
26
be read as a reference to a member of the Australian Defence
27
Force who is providing administrative or liaison assistance in
28
accordance with an arrangement under subsection (1); and
29
(b) a reference to APS employment is to be read as a reference to
30
the provision of administrative or liaison assistance in
31
accordance with an arrangement under subsection (1); and
32
(c) a reference to an APS employee's Agency is to be read as a
33
reference to the Statutory Agency declared under section 18Q
34
of the Federal Court of Australia Act 1976.
35
Note:
See subsection 43(3) of this Act.
36
Management of the Military Court Part 3
Management responsibilities of Chief Justice etc. Division 2
Section 33
Military Court of Australia Bill 2012 No. , 2012 23
(8) An instrument by which an arrangement under subsection (1) is
1
made is not a legislative instrument.
2
33 Arrangements for sharing courtrooms and other facilities
3
(1) The Chief Justice may make arrangements with the chief judicial
4
officer (however described) of another Australian court for:
5
(a) the Military Court to sit in rooms of the other court; and
6
(b) the Military Court to share registry facilities and other
7
facilities with the other court; and
8
(c) the other court to provide registry services to the Military
9
Court.
10
(2) An instrument by which an arrangement under subsection (1) is
11
made is not a legislative instrument.
12
34 Delegation of administrative powers of Chief Justice
13
The Chief Justice may, in writing, delegate all or any of his or her
14
powers under section 29 to any one or more of the Judges or
15
Federal Magistrates.
16
17
Part 3 Management of the Military Court
Division 3 Registries
Section 35
24 Military Court of Australia Bill 2012 No. , 2012
Division 3--Registries
1
35 Establishment of registries
2
The Attorney-General must cause to be established such registries
3
of the Military Court as the Attorney-General thinks fit.
4
5
Management of the Military Court Part 3
Registrar Division 4
Section 36
Military Court of Australia Bill 2012 No. , 2012 25
Division 4--Registrar
1
36 Functions and powers
2
(1) In managing the administrative affairs of the Military Court, the
3
Chief Justice is assisted by the Registrar.
4
(2) The Registrar has the power to do all things necessary or
5
convenient to be done for the purpose of assisting the Chief Justice
6
under subsection (1).
7
(3) In particular, the Registrar may act on behalf of the Chief Justice in
8
relation to the administrative affairs of the Military Court.
9
(4)
The
Registrar:
10
(a) is subject to the direction and control of the Chief Justice;
11
and
12
(b) is not subject to the direction or control of any other person
13
or body;
14
in relation to the performance of a function or the exercise of a
15
power under this Act or the Military Court Rules.
16
(5) If a direction under paragraph (4)(a) is given in writing, the
17
direction is not a legislative instrument.
18
Functions and powers are in addition to other functions and
19
powers
20
(6) The functions and powers conferred on the Registrar by or under
21
this Act are in addition to the functions and powers conferred on
22
the Registrar by any other law of the Commonwealth.
23
37 Delegation of powers to Registrars
24
(1) The following powers of the Military Court may, if the Military
25
Court so directs, be exercised by a Registrar:
26
(a) the power to dispense with the service of any process of the
27
Military Court;
28
(b) the power to make orders in relation to substituted service;
29
Part 3 Management of the Military Court
Division 4 Registrar
Section 37
26 Military Court of Australia Bill 2012 No. , 2012
(c) the power to make orders under subsection 76(1) (pre-trial
1
disclosure);
2
(d) the power, in proceedings in the Military Court, to make an
3
order adjourning the hearing of the proceedings;
4
(e) the power to make an order exempting a party to proceedings
5
in the Military Court from compliance with a provision of the
6
Military Court Rules;
7
(f) a power of the Military Court prescribed by the Military
8
Court Rules.
9
(2) The provisions of this Act and the Military Court Rules that relate
10
to the exercise by the Military Court of a power that is, because of
11
subsection (1), exercisable by a Registrar apply in relation to an
12
exercise of the power by a Registrar under this section as if
13
references in those provisions to the Military Court were references
14
to the Registrar.
15
(3) Despite any other provision of this Act and any provision of the
16
Public Service Act 1999 or any other law, a Registrar is not subject
17
to the direction or control of any person or body in relation to the
18
manner in which he or she exercises powers referred to in
19
subsection (1).
20
(4) A party to proceedings in which a Registrar has exercised any of
21
the powers of the Military Court referred to in subsection (1) may,
22
within the time prescribed by the Military Court Rules, or within
23
any further time allowed in accordance with those Rules, apply to
24
the Military Court to review that exercise of power.
25
(5) The Military Court may, on application under subsection (4) or on
26
its own initiative:
27
(a) review an exercise of power by a Registrar under this section;
28
and
29
(b) make such order or orders as it thinks fit with respect to the
30
matter with respect to which the power was exercised.
31
(6)
If:
32
(a) an application (the first application) for the exercise of a
33
power referred to in subsection (1) is being heard by a
34
Registrar; and
35
Management of the Military Court Part 3
Registrar Division 4
Section 37
Military Court of Australia Bill 2012 No. , 2012 27
(b)
either:
1
(i) the Registrar considers that it is not appropriate for the
2
first application to be determined by a Registrar acting
3
under this section; or
4
(ii) an application is made to the Registrar to arrange for the
5
first application to be determined by the Military Court;
6
then the Registrar must not hear, or continue to hear, the first
7
application and must make appropriate arrangements for that
8
application to be heard by the Military Court.
9
(7) In this section, Registrar means the Registrar or a Deputy
10
Registrar.
11
12
Part 3 Management of the Military Court
Division 5 Other officers and staff of the Military Court etc.
Section 38
28 Military Court of Australia Bill 2012 No. , 2012
Division 5--Other officers and staff of the Military Court
1
etc.
2
38 Officers of the Military Court
3
(1) In addition to the Registrar, there are to be the following officers of
4
the Military Court:
5
(a) such Deputy Registrars as are necessary;
6
(b) the Sheriff of the Military Court;
7
(c) such Deputy Sheriffs as are necessary.
8
(2) The officers of the Military Court referred to in paragraphs (1)(a)
9
to (c) are to be appointed by the Registrar.
10
(3) A person may be an officer of both the Military Court and the
11
Federal Court.
12
(4) Subsection (3) has effect despite anything in this Act or the
13
Federal Court of Australia Act 1976.
14
(5) A person who is a member of the Australian Defence Force must
15
not be appointed, and cannot hold office, as a Deputy Registrar.
16
(6) The officers of the Military Court (other than the Registrar and the
17
Deputy Sheriffs), are to be persons engaged under the Public
18
Service Act 1999.
19
(7) The Deputy Sheriffs may be persons engaged under the Public
20
Service Act 1999.
21
39 Functions of officers other than the Registrar
22
The officers of the Military Court (other than the Registrar) have
23
such duties, powers and functions as are given to them by:
24
(a) this Act; or
25
(b) the Military Court Rules; or
26
(c) the Chief Justice.
27
Note 1:
Members of the Australian Defence Force may provide administrative
28
assistance to the Military Court in accordance with an arrangement
29
made under section 32.
30
Management of the Military Court Part 3
Other officers and staff of the Military Court etc. Division 5
Section 40
Military Court of Australia Bill 2012 No. , 2012 29
Note 2:
Section 36 deals with the functions and powers of the Registrar.
1
40 Deputy Registrars
2
(1) A Deputy Registrar:
3
(a) is subject to the direction and control of:
4
(i) the Chief Justice; and
5
(ii) any other Judge or Federal Magistrate authorised by the
6
Chief Justice to direct and control that Deputy Registrar;
7
and
8
(iii) the Registrar; and
9
(b) is not subject to the direction or control of any other person
10
or body;
11
in relation to the performance of a function or the exercise of a
12
power under this Act or the Military Court Rules.
13
(2) Without limiting subsection (1), the Registrar may, subject to this
14
Act and to any directions of the Chief Justice, make arrangements
15
as to the Deputy Registrars who are to perform any function or
16
exercise any power under this Act or the Military Court Rules in
17
particular matters or classes of matters.
18
41 Functions of the Sheriff and Deputy Sheriffs
19
(1) The Sheriff of the Military Court is responsible for the service and
20
execution of all process of the Military Court directed to the
21
Sheriff.
22
(2) The Sheriff of the Military Court is also responsible for:
23
(a) dealing, on behalf of the Military Court, with:
24
(i) the Australian Federal Police and the police forces of
25
the States and Territories in relation to the service and
26
execution of process of the Military Court directed to
27
members of any of those police forces; and
28
(ii) service police members in relation to the service and
29
execution of process of the Military Court directed to
30
those members; and
31
(b) taking, receiving and detaining all persons committed to his
32
or her custody by the Military Court; and
33
Part 3 Management of the Military Court
Division 5 Other officers and staff of the Military Court etc.
Section 42
30 Military Court of Australia Bill 2012 No. , 2012
(c) discharging such persons if so directed by the Military Court
1
or otherwise required by law.
2
(3) A Deputy Sheriff may, subject to any directions of the Sheriff,
3
exercise any of the powers or perform any of the functions of the
4
Sheriff.
5
(4) The Sheriff or a Deputy Sheriff may authorise persons to assist him
6
or her in the exercise of any of his or her powers or the
7
performance of any of his or her functions.
8
42 Actions by or against the Sheriff or a Deputy Sheriff
9
If the Sheriff or a Deputy Sheriff is a party to a proceeding in the
10
Military Court:
11
(a) all writs, summonses, orders, warrants, precepts, process and
12
commands in the proceeding which should, in the ordinary
13
course, be directed to the Sheriff must be directed to such
14
disinterested person as the Military Court appoints; and
15
(b) the person so appointed may execute and return them.
16
43 Staff of the Military Court etc.
17
Staff
18
(1) There are to be such staff of the Military Court as are necessary.
19
(2) The staff of the Military Court is to consist of persons engaged
20
under the Public Service Act 1999.
21
Statutory Agency
22
(3) For the purposes of the Public Service Act 1999, the Statutory
23
Agency declared under section 18Q of the Federal Court of
24
Australia Act 1976 includes the APS employees assisting the
25
Registrar for the purposes of this Act.
26
Management of the Military Court Part 3
Other officers and staff of the Military Court etc. Division 5
Section 44
Military Court of Australia Bill 2012 No. , 2012 31
44 Engagement of consultants etc.
1
(1) The Registrar may engage persons having suitable qualifications
2
and experience as consultants to, or to perform services for, the
3
Military Court.
4
(2) An engagement under subsection (1) is to be made:
5
(a) on behalf of the Commonwealth; and
6
(b) by written agreement.
7
8
Part 3 Management of the Military Court
Division 6 Miscellaneous administrative matters
Section 45
32 Military Court of Australia Bill 2012 No. , 2012
Division 6--Miscellaneous administrative matters
1
45 Seal of the Military Court
2
(1) The Military Court is to have a seal, the design of which is to be
3
determined by the Attorney-General.
4
(2) The seal of the Military Court is to be kept in such custody as the
5
Chief Justice directs.
6
(3) The Registrar is to have in his or her custody a stamp, the design of
7
which is, as nearly as practicable, to be the same as the design of
8
the seal of the Military Court.
9
(4) A document or a copy of a document marked with a stamp referred
10
to in subsection (3) is as valid and effectual as if it had been sealed
11
with the seal of the Military Court.
12
(5) The seal of the Military Court and the stamp referred to in this
13
section must be affixed to documents as provided by this or any
14
other Act or by the Military Court Rules.
15
46 Writs
16
(1) All writs, commissions and process issued from the Military Court
17
must be:
18
(a) under the seal of the Military Court; and
19
(b) signed (including by way of electronic signature) by:
20
(i) the Registrar; or
21
(ii) a Deputy Registrar; or
22
(iii) an officer of the Military Court acting with the authority
23
of the Registrar or a Deputy Registrar.
24
(2) For the purposes of paragraph (1)(b), a document is taken to be
25
signed by the Registrar or a Deputy Registrar if the electronic
26
signature of the Registrar or Deputy Registrar is applied to the
27
document by an officer acting with the authority of the Registrar or
28
Deputy Registrar.
29
Management of the Military Court Part 3
Miscellaneous administrative matters Division 6
Section 47
Military Court of Australia Bill 2012 No. , 2012 33
(3)
An
electronic signature of a person means the person's unique
1
identification in an electronic form that is approved by the
2
Registrar.
3
47 Annual report
4
(1) As soon as practicable after 30 June in each year, the Chief Justice
5
must prepare and give to the Attorney-General a report of the
6
management of the administrative affairs of the Military Court
7
during the year.
8
Note:
See also section 34C of the Acts Interpretation Act 1901.
9
(2) The Attorney-General must cause a copy of the report to be tabled
10
in each House of the Parliament as soon as practicable.
11
48 Proceedings arising out of administration of Military Court
12
Any judicial or other proceeding relating to a matter arising out of
13
the management of the administrative affairs of the Military Court
14
under this Part, including any proceeding relating to anything done
15
by the Registrar under this Part, may be instituted by or against the
16
Commonwealth, as the case requires.
17
49 Oath or affirmation of office
18
(1) Before proceeding to discharge the duties of his or her office, the
19
Registrar and each Deputy Registrar must take, before the Chief
20
Justice, an oath or affirmation in accordance with the form set out
21
in subsection (2) or (3) (whichever is applicable).
22
(2) This is the form of oath:
23
I,
(name), do swear that I will well and truly serve in the Office of
24
(Registrar or Deputy Registrar, as the case may be) of the Military
25
Court of Australia and that I will do right to all manner of people
26
according to law without fear or favour, affection or ill-will. So
27
help me God!
28
(3) This is the form of affirmation:
29
Part 3 Management of the Military Court
Division 6 Miscellaneous administrative matters
Section 49
34 Military Court of Australia Bill 2012 No. , 2012
I,
(name), do solemnly and sincerely promise and declare that (as
1
above, omitting the words "So help me God!").
2
3
Jurisdiction of the Military Court: general Part 4
Introduction Division 1
Section 50
Military Court of Australia Bill 2012 No. , 2012 35
Part 4--Jurisdiction of the Military Court: general
1
Division 1--Introduction
2
50 Guide to this Part
3
This Part deals with general matters relating to the jurisdiction of
4
the Military Court.
5
Division 2 deals with the arrangement of the business of the
6
Military Court, including where sittings of the Military Court may
7
be held.
8
Division 3 deals with the Military Court's power to punish for
9
contempts of its power and authority, and other general matters.
10
11
Part 4 Jurisdiction of the Military Court: general
Division 2 Arrangement of business of the Military Court etc.
Section 51
36 Military Court of Australia Bill 2012 No. , 2012
Division 2--Arrangement of business of the Military Court
1
etc.
2
51 Place of sitting
3
(1) The Military Court is to sit at a place in Australia to hear and
4
determine a proceeding, or a part of a proceeding, unless the
5
Military Court determines, in accordance with this section, that it is
6
both necessary and possible for it to sit at a place outside Australia
7
to hear and determine the proceeding or the part of the proceeding.
8
(2) The Military Court may sit at a place outside Australia to hear and
9
determine a proceeding, or a part of a proceeding, if:
10
(a) the accused person or the Director of Military Prosecutions
11
requests the Military Court to sit at that place; and
12
(b) the Military Court determines, in the interests of justice, that
13
it is necessary for it to sit at that place; and
14
(c) the Military Court determines, under subsection (4), that it is
15
possible for it to sit at that place.
16
(3) For the purposes of making a determination under
17
paragraph (2)(b), the Military Court must have regard to:
18
(a) the location where the service offence is alleged to have been
19
committed; and
20
(b) the location of the accused person; and
21
(c) the location of witnesses (if any); and
22
(d) the ability of those witnesses to give evidence in Australia;
23
and
24
(e) any submissions made by the accused person or the Director
25
of Military Prosecutions.
26
(4) If the Military Court determines that it is necessary for it to sit at a
27
place outside Australia, the Military Court must also determine
28
whether it is possible for it to sit at that place, having regard to:
29
(a) the security of the place; and
30
(b) any relevant Australian or foreign laws; and
31
(c) if the place is in another country:
32
Jurisdiction of the Military Court: general Part 4
Arrangement of business of the Military Court etc. Division 2
Section 52
Military Court of Australia Bill 2012 No. , 2012 37
(i) any relevant agreements or arrangements that are in
1
force between Australia and that country; and
2
(ii) the international legal basis for the presence of the
3
Australian Defence Force in that country; and
4
(iii) the international legal basis for the presence of the
5
Military Court in that country; and
6
(d) any submissions made by the accused person or the Director
7
of Military Prosecutions.
8
(5) If the Military Court determines:
9
(a) that it is necessary for it to sit at a place outside Australia to
10
hear and determine a proceeding or a part of a proceeding;
11
but
12
(b) that it is not possible for it to sit at that place to hear and
13
determine the proceeding or the part of the proceeding;
14
then:
15
(c) the proceeding is taken to have been discontinued; and
16
(d) all charges to which the proceeding relates are taken to have
17
been withdrawn from the Military Court.
18
Note:
The charges may be dealt with under the Defence Force Discipline Act
19
1982.
20
52 Manner in which Military Court may be constituted
21
(1) In exercising the original jurisdiction of the Military Court, the
22
Military Court may be constituted:
23
(a) by a single Federal Magistrate; or
24
(b) by a single Judge; or
25
(c) as a Full Court.
26
(2) A Full Court consists of 3 Judges sitting together or, to the extent
27
permitted by subsection (3), of 2 Judges sitting together.
28
(3) If, after a Full Court has commenced the hearing, or the further
29
hearing, of a proceeding and before the proceeding has been
30
determined, one of the Judges constituting the Full Court dies,
31
resigns his or her office or otherwise becomes unable to continue
32
as a member of the Full Court for the purposes of the proceeding,
33
then, if the parties consent, the hearing and determination, or the
34
Part 4 Jurisdiction of the Military Court: general
Division 2 Arrangement of business of the Military Court etc.
Section 53
38 Military Court of Australia Bill 2012 No. , 2012
determination, of the proceeding may be completed by a Full Court
1
constituted by the remaining Judges.
2
(4) The Military Court constituted by one or more Judges may sit and
3
exercise the jurisdiction of the Military Court even if the Military
4
Court constituted by one or more other Judges, or a Federal
5
Magistrate, is at the same time sitting and exercising the
6
jurisdiction of the Military Court.
7
(5) The Military Court constituted by a Federal Magistrate may sit and
8
exercise the jurisdiction of the Military Court even if the Military
9
Court constituted by another Federal Magistrate, or one or more
10
Judges, is at the same time sitting and exercising the jurisdiction of
11
the Military Court.
12
53 Arrangement of the business of the Military Court
13
Responsibility of Chief Justice
14
(1) The Chief Justice is responsible for ensuring the effective, orderly
15
and expeditious discharge of the business of:
16
(a) the Military Court as a whole; and
17
(b) each Division of the Military Court (including the allocation
18
of resources between the Divisions).
19
(2) In discharging his or her responsibility under subsection (1) (and
20
without limiting the generality of that subsection) the Chief Justice:
21
(a) may, subject to this Act and to such consultation with the
22
Judges and Federal Magistrates as is appropriate and
23
practicable, do any or all of the following:
24
(i) make arrangements as to the Federal Magistrate who is,
25
or the Judge or Judges who are, to constitute the
26
Military Court in particular matters or classes of
27
matters;
28
(ii) without limiting the generality of subparagraph (i)--
29
assign particular caseloads, classes of cases or functions
30
to particular Judges or Federal Magistrates;
31
(iii) temporarily restrict a Judge or a Federal Magistrate to
32
non-sitting duties; and
33
Jurisdiction of the Military Court: general Part 4
Arrangement of business of the Military Court etc. Division 2
Section 54
Military Court of Australia Bill 2012 No. , 2012 39
(b) must ensure that arrangements are in place to provide Judges
1
and Federal Magistrates with appropriate access to (or
2
reimbursement for the cost of):
3
(i) annual health assessments; and
4
(ii) short-term counselling services; and
5
(iii)
judicial
education.
6
(3) In exercising powers or performing functions mentioned in
7
paragraph (2)(a), the Chief Justice has the same protection and
8
immunity as if he or she were exercising those powers or
9
performing those functions as, or as a member of, the Military
10
Court.
11
(4) Despite section 39B of the Judiciary Act 1903, the Federal Court
12
does not have jurisdiction with respect to a matter relating to the
13
exercise or performance by the Chief Justice of the powers or
14
functions mentioned in subsection (2).
15
Arrangements for Judges or Federal Magistrates who hold other
16
judicial offices
17
(5) If a Judge of the Military Court also holds office as a Judge of
18
another court created by the Parliament, the Chief Justice may,
19
after consulting with the Judge, make arrangements with the Chief
20
Justice of the other court regarding the extent to which the Judge is
21
to take part in exercising the jurisdiction of the Military Court.
22
(6) If a Federal Magistrate of the Military Court also holds office as a
23
Federal Magistrate of the Federal Magistrates Court, the Chief
24
Justice may, after consulting with the Federal Magistrate, make
25
arrangements with the Chief Federal Magistrate of the Federal
26
Magistrates Court regarding the extent to which the Federal
27
Magistrate is to take part in exercising the jurisdiction of the
28
Military Court.
29
54 Exercise of powers of Military Court in Divisions
30
(1) A Judge must exercise, or participate in exercising, the powers of
31
the Military Court only in the Appellate and Superior Division.
32
Part 4 Jurisdiction of the Military Court: general
Division 2 Arrangement of business of the Military Court etc.
Section 55
40 Military Court of Australia Bill 2012 No. , 2012
(2) A Federal Magistrate must exercise, or participate in exercising,
1
the powers of the Military Court only in the General Division.
2
(3) Subsections (1) and (2) do not affect the validity of any exercise of
3
powers by the Military Court otherwise than in accordance with
4
those subsections.
5
55 Military Court divided in opinion
6
If the Judges constituting a Full Court for the purposes of any
7
proceeding are divided in opinion as to the judgement to be
8
pronounced:
9
(a) if there is a majority--judgement is to be pronounced
10
according to the opinion of the majority; or
11
(b) if the Judges are equally divided in opinion:
12
(i) in the case of an appeal from a judgement of the
13
Military Court constituted by a single Judge or a Federal
14
Magistrate--the judgement appealed from is to be
15
affirmed; and
16
(ii) otherwise--the opinion of the Chief Justice, or (if he or
17
she is not a member of the Full Court) the opinion of the
18
senior Judge who is a member of the Full Court, is to
19
prevail.
20
56 Exercise of jurisdiction in open court and in Chambers
21
(1) Subject to subsections (2), (4) and (5), and any other law of the
22
Commonwealth, the jurisdiction of the Military Court is to be
23
exercised in open court.
24
(2) The jurisdiction of the Military Court may be exercised by a Judge
25
or a Federal Magistrate sitting in Chambers in relation to:
26
(a) interlocutory or pre-trial matters; and
27
(b) any other matter prescribed by the Military Court Rules.
28
(3) A Judge or a Federal Magistrate may order a proceeding in
29
Chambers to be adjourned into court.
30
(4) The Military Court may order a proceeding in open court to be
31
adjourned into Chambers if, apart from this subsection, the
32
Jurisdiction of the Military Court: general Part 4
Arrangement of business of the Military Court etc. Division 2
Section 56
Military Court of Australia Bill 2012 No. , 2012 41
jurisdiction of the Military Court may be exercised by a Judge or
1
Federal Magistrate sitting in Chambers in that proceeding.
2
(5) The Military Court may order the exclusion of the public or of
3
persons specified by the Military Court from a sitting of the
4
Military Court if the Military Court is satisfied that the presence of
5
the public or of those persons would be:
6
(a) contrary to the interests of justice; or
7
(b) prejudicial to national security.
8
9
Part 4 Jurisdiction of the Military Court: general
Division 3 Other matters
Section 57
42 Military Court of Australia Bill 2012 No. , 2012
Division 3--Other matters
1
57 Making of orders and issuing of writs
2
The Military Court has power, in relation to matters in which it has
3
jurisdiction, to make orders of such kinds, including interlocutory
4
orders, and to issue, or direct the issue of, writs of such kinds, as
5
the Military Court thinks appropriate.
6
58 Costs not to be awarded
7
Except as provided in section 109, the Military Court must not
8
award costs in a proceeding.
9
59 Powers of Military Court extend within and outside Australia
10
The process of the Military Court runs, and the judgements of the
11
Military Court have effect and may be executed, both within and
12
outside Australia.
13
60 Prerogative of mercy unaffected
14
Nothing in this Part or Part 5 or 6 abrogates or affects the
15
prerogative of mercy.
16
61 Contempt of court
17
(1) Subject to any other Act, the Military Court has the same power to
18
punish contempts of its power and authority as is possessed by the
19
High Court in respect of contempts of the High Court.
20
(2) The jurisdiction of the Military Court to punish a contempt of the
21
Military Court committed in the face or hearing of the Military
22
Court may be exercised by the Military Court as constituted at the
23
time of the contempt.
24
25
Original jurisdiction of the Military Court Part 5
Introduction Division 1
Section 62
Military Court of Australia Bill 2012 No. , 2012 43
Part 5--Original jurisdiction of the Military Court
1
Division 1--Introduction
2
62 Guide to this Part
3
This Part deals with the original jurisdiction of the Military Court.
4
Division 2 provides that the Military Court has certain original
5
jurisdiction, including with respect to matters relating to charges of
6
service offences. Division 2 also provides for that jurisdiction to be
7
exercised in a particular Division of the Military Court.
8
Division 3 sets out procedures relating to the institution of
9
proceedings in the Military Court, including procedures relating to
10
charge sheets.
11
Division 4 deals with pre-trial matters, including pre-trial hearings
12
and disclosure by the parties.
13
Division 5 deals with matters relating to pleas, trials and verdicts.
14
15
Part 5 Original jurisdiction of the Military Court
Division 2 Original jurisdiction
Section 63
44 Military Court of Australia Bill 2012 No. , 2012
Division 2--Original jurisdiction
1
63 Original jurisdiction of the Military Court
2
(1) The Military Court has:
3
(a) original jurisdiction with respect to matters arising under the
4
Defence Force Discipline Act 1982 in respect of charges of
5
service offences; and
6
(b) such original jurisdiction as is vested in it by laws made by
7
the Parliament:
8
(i) by express provision; or
9
(ii) by the application of section 15C of the Acts
10
Interpretation Act 1901 to a provision that, whether
11
expressly or by implication, authorises a proceeding to
12
be instituted in the Military Court in relation to a matter.
13
(2) However, the Military Court does not have original jurisdiction to
14
hear and determine charges of custodial offences.
15
(3) The original jurisdiction of the Military Court includes any
16
jurisdiction vested in it to hear and determine appeals from
17
decisions of persons, authorities or tribunals other than courts.
18
Note:
For example, the Military Court has jurisdiction to hear and determine
19
appeals from certain determinations of courts martial and Defence
20
Force magistrates made under Schedule 3B to the Defence Force
21
Discipline Act 1982.
22
64 Charges of service offences not to be dealt with on indictment
23
Charges of service offences are to be dealt with otherwise than on
24
indictment.
25
65 Exercise of original jurisdiction
26
General Division
27
(1) The original jurisdiction of the Military Court (other than
28
jurisdiction in respect of a proceeding referred to in subsection (2))
29
is to be exercised in the General Division by a single Federal
30
Magistrate.
31
Original jurisdiction of the Military Court Part 5
Original jurisdiction Division 2
Section 65
Military Court of Australia Bill 2012 No. , 2012 45
Appellate and Superior Division
1
(2) The original jurisdiction of the Military Court is to be exercised in
2
the Appellate and Superior Division if:
3
(a) the proceeding is for the trial of a charge of a Schedule 1
4
offence; or
5
(b) the proceeding is in respect of:
6
(i) an appeal from a determination of a court martial or a
7
Defence Force magistrate under Schedule 3B to the
8
Defence Force Discipline Act 1982; or
9
(ii) a question of law referred to the Full Court under that
10
Schedule; or
11
(c) the Chief Justice directs (whether before or after a proceeding
12
is instituted) that the proceeding is to be heard and
13
determined in the Appellate and Superior Division.
14
(3) Jurisdiction in respect of a proceeding referred to in
15
paragraph (2)(a) or (c) is to be exercised by a single Judge.
16
(4) Except as otherwise provided by this Act or the Defence Force
17
Discipline Act 1982, jurisdiction in respect of a proceeding referred
18
to in paragraph (2)(b) is to be exercised by a Full Court.
19
Note:
Certain applications relating to an appeal to the Military Court from a
20
determination of a court martial or a Defence Force magistrate under
21
Schedule 3B to the Defence Force Discipline Act 1982 may be heard
22
and determined by a single Judge: see Part 4 of Schedule 3B to that
23
Act.
24
Meaning of Schedule 1 offence and ancillary offence
25
(5)
A
Schedule 1 offence is:
26
(a) an offence against a provision of the Defence Force
27
Discipline Act 1982 that is specified in the table in
28
Schedule 1 to this Act; or
29
(b) an offence that:
30
(i) is an ancillary offence in relation to an offence referred
31
to in paragraph (a); and
32
(ii) was committed by a person at a time when the person
33
was a defence member or a defence civilian.
34
Part 5 Original jurisdiction of the Military Court
Division 2 Original jurisdiction
Section 66
46 Military Court of Australia Bill 2012 No. , 2012
(6)
An
ancillary offence, in relation to an offence referred to in
1
paragraph (5)(a), is an offence against:
2
(a) section 11.1, 11.4 or 11.5 of the Criminal Code; or
3
(b) section 6 of the Crimes Act 1914;
4
that relates to that other offence.
5
66 Referral of proceedings from one Division to the other Division
6
(1) If a proceeding is pending in a Division of the Military Court, the
7
Chief Justice may direct that the proceeding be referred to the other
8
Division of the Military Court.
9
(2) However, the Chief Justice must not direct that a proceeding of a
10
kind referred to in paragraph 65(2)(a) or (b) be referred to the
11
General Division.
12
(3) A proceeding may be referred under this section:
13
(a) on the application of a party to the proceeding; or
14
(b) on the initiative of the Chief Justice.
15
(4) The Military Court Rules may make provision in relation to the
16
referral of a proceeding under this section.
17
(5) In particular, the Military Court Rules may set out factors that are
18
to be taken into account by the Chief Justice in deciding whether to
19
direct that a proceeding be referred under this section.
20
(6) In deciding whether to refer a proceeding under this section, the
21
Chief Justice must have regard to:
22
(a) any Rules made for the purposes of subsection (4); and
23
(b) the seriousness of the service offences to which the
24
proceeding relates; and
25
(c) the complexity of the matters raised by the proceeding; and
26
(d) the wishes of the parties to the proceeding; and
27
(e) the interests of the administration of justice.
28
(7) If a proceeding is referred under this section, the Chief Justice may
29
make such orders as the Chief Justice considers necessary pending
30
the disposal of the proceeding.
31
Original jurisdiction of the Military Court Part 5
Original jurisdiction Division 2
Section 66
Military Court of Australia Bill 2012 No. , 2012 47
(8) An appeal does not lie from a decision to refer, or not to refer, a
1
proceeding under this section.
2
3
Part 5 Original jurisdiction of the Military Court
Division 3 Instituting proceedings etc.
Section 67
48 Military Court of Australia Bill 2012 No. , 2012
Division 3--Instituting proceedings etc.
1
67 Instituting proceedings in the Military Court
2
(1) Proceedings in the Military Court are to be instituted in accordance
3
with the Military Court Rules.
4
(2) If the Director of Military Prosecutions institutes a proceeding in
5
respect of a charge in the Military Court, the Military Court must
6
issue a summons to the accused person requiring the person to
7
appear before the Military Court on a date and at a time and place
8
specified in the summons.
9
68 Condonation of service offence not to prevent institution of
10
proceeding
11
Condonation of a service offence does not prevent a proceeding
12
being instituted in the Military Court in respect of the service
13
offence.
14
69 Charge sheet may include charge of alternative offence
15
If an accused person is charged with a service offence, the Director
16
of Military Prosecutions may also include in the charge sheet a
17
charge of an alternative offence.
18
70 Single charge sheet can cover multiple accused persons
19
The Director of Military Prosecutions may, in a charge sheet,
20
include a single charge against more than one accused person for
21
the same service offence if the charge is founded on alleged facts
22
that are the same, or substantially the same, for each accused
23
person.
24
71 Separating one or more accused persons from a single charge
25
(1) The Military Court may order one or more accused persons
26
included in a single charge in a charge sheet to be tried separately:
27
(a) in the same proceeding on a different charge in the same
28
charge sheet; or
29
Original jurisdiction of the Military Court Part 5
Instituting proceedings etc. Division 3
Section 72
Military Court of Australia Bill 2012 No. , 2012 49
(b) in separate proceedings on one or more further charge sheets;
1
if the Military Court is satisfied that it is expedient to do so in the
2
interests of justice.
3
(2) If the Military Court makes an order under subsection (1), the
4
Military Court may make such other orders as it thinks appropriate
5
in the circumstances.
6
(3) The Military Court may make an order under subsection (1) before
7
or during the trial.
8
72 Single charge sheet can include multiple charges
9
Single accused person
10
(1) The Director of Military Prosecutions may, in a single charge
11
sheet, include charges against the accused person for more than
12
one service offence if those charges:
13
(a) are founded on alleged facts that are the same or substantially
14
the same; or
15
(b) are, or form part of, a series of alleged service offences:
16
(i) of the same or a similar character; or
17
(ii) committed in the pursuit of a single purpose.
18
Multiple accused persons
19
(2) The Director of Military Prosecutions may, in a single charge
20
sheet, include charges against more than one accused person for
21
the same or different service offences if those charges:
22
(a) are founded on alleged facts that are the same or substantially
23
the same; or
24
(b) are, or form part of, a series of alleged service offences:
25
(i) of the same or a similar character; or
26
(ii) committed in the pursuit of a single purpose.
27
73 Separating one or more charges from a single charge sheet
28
(1) The Military Court may order one or more charges in a charge
29
sheet to be tried separately:
30
Part 5 Original jurisdiction of the Military Court
Division 3 Instituting proceedings etc.
Section 74
50 Military Court of Australia Bill 2012 No. , 2012
(a) in separate proceedings; and
1
(b) on one or more further charge sheets;
2
if the Military Court is satisfied that it is expedient to do so in the
3
interests of justice.
4
(2) If the Military Court makes an order under subsection (1), the
5
Military Court may make such other orders as it thinks appropriate
6
in the circumstances.
7
(3) The Military Court may make an order under subsection (1) before
8
or during the trial.
9
74 Amending charges
10
Amendments before trial
11
(1) The Director of Military Prosecutions may, in accordance with the
12
Military Court Rules, amend or replace a charge included in a
13
charge sheet in relation to an accused person at any time during the
14
proceeding before the start of a trial of the accused person.
15
Amendments during trial
16
(2) During a trial of the accused person, the Director of Military
17
Prosecutions may amend or replace a charge included in a charge
18
sheet in relation to the accused person only with the leave of the
19
Military Court.
20
Consequences of amending charges
21
(3) If the Director of Military Prosecutions replaces a charge included
22
in a charge sheet under subsection (1) or (2), the Military Court
23
must dismiss the replaced charge.
24
(4) If a charge included in a charge sheet is amended or replaced, the
25
Military Court may make such orders as it thinks appropriate in the
26
circumstances.
27
Note:
If, for example, a charge was removed from a charge sheet, the
28
Military Court could discharge the accused person in relation to that
29
charge.
30
Original jurisdiction of the Military Court Part 5
Instituting proceedings etc. Division 3
Section 74
Military Court of Australia Bill 2012 No. , 2012 51
(5) This section does not affect the amendment of a charge under other
1
provisions of this Part.
2
3
Part 5 Original jurisdiction of the Military Court
Division 4 Pre-trial matters
Section 75
52 Military Court of Australia Bill 2012 No. , 2012
Division 4--Pre-trial matters
1
75 Pre-trial hearings
2
(1) The Director of Military Prosecutions and the accused person must
3
attend a pre-trial hearing before the Military Court on the date and
4
at the time and place notified by the Military Court.
5
(2) The Military Court may order the Director of Military Prosecutions
6
and the accused person to attend one or more additional pre-trial
7
hearings before the Military Court.
8
(3) At a pre-trial hearing, the accused person may enter a plea in
9
relation to each charge that relates to the accused person.
10
(4) During a pre-trial hearing, the Military Court may make orders and
11
determinations for the efficient management and disposal of a trial
12
of the charge of a service offence.
13
(5) Without limiting subsection (4), the Military Court may do any or
14
all of the following under that subsection:
15
(a) hear and determine an objection to the charge;
16
(b) make an order under subsection 76(1) (pre-trial disclosure);
17
(c) determine the admissibility of evidence;
18
(d) hear and determine a submission that the matter should not
19
proceed to trial for a reason not mentioned in paragraph (a),
20
(b) or (c);
21
(e) rule on a matter of law that may arise during a trial on the
22
charge.
23
(6) If a trial on a charge of a service offence starts, an order or
24
determination under subsection (4) applies for the trial unless the
25
Military Court is satisfied that to follow the order or determination
26
would be contrary to the interests of justice.
27
(7) If a matter covered by paragraph (5)(a) or (d) was not raised during
28
the pre-trial hearings for a trial of a charge, the matter cannot be
29
raised during the trial unless the Military Court is satisfied that to
30
not do so would be contrary to the interests of justice.
31
Original jurisdiction of the Military Court Part 5
Pre-trial matters Division 4
Section 76
Military Court of Australia Bill 2012 No. , 2012 53
76 Pre-trial and ongoing disclosure
1
(1) After the charge is referred to the Military Court and before a trial
2
on the charge starts, the Military Court may order the Director of
3
Military Prosecutions:
4
(a) to give the accused person notice of the case for the
5
prosecution in accordance with section 77; and
6
(b) to make ongoing disclosures in accordance with the Military
7
Court Rules.
8
(2) The order may specify the time within which each disclosure is to
9
be made.
10
(3) The accused person must give the following to the Director of
11
Military Prosecutions as soon as practicable after the accused
12
person's first pre-trial hearing before the Military Court in relation
13
to the charge:
14
(a) if at the trial the accused person proposes to adduce
15
supporting evidence of an alibi--notice of particulars,
16
prepared in accordance with the Military Court Rules, of that
17
alibi;
18
(b) if at the trial the accused person proposes to adduce
19
supporting evidence that the accused person was suffering
20
from a mental impairment--notice of particulars, prepared in
21
accordance with the Military Court Rules, of that
22
impairment;
23
(c) a copy of any report, relevant to the trial, that has been
24
prepared by an expert witness who the accused person
25
proposes to call at the trial.
26
77 Disclosure of case for the prosecution
27
(1) The notice of the prosecution's case must include the following:
28
(a) an outline of the prosecution's case that sets out the facts,
29
matters and circumstances on which the prosecution's case is
30
based;
31
(b) for each witness the Director of Military Prosecutions
32
proposes to call at the trial:
33
Part 5 Original jurisdiction of the Military Court
Division 4 Pre-trial matters
Section 77
54 Military Court of Australia Bill 2012 No. , 2012
(i) a copy of a signed statement by the witness that sets out
1
the evidence the witness is to give at the trial; or
2
(ii) if no such statement has been prepared--a written
3
summary of the evidence the witness is to give at the
4
trial;
5
(c) for each witness:
6
(i) the Director of Military Prosecutions does not propose
7
to call at the trial; but
8
(ii) who has signed a statement that sets out the evidence
9
the witness could give at the trial;
10
a copy of the signed statement;
11
(d) copies of any documents the Director of Military
12
Prosecutions proposes to tender at the trial;
13
(e) copies of, or an invitation to inspect, any other exhibits the
14
Director of Military Prosecutions proposes to tender at the
15
trial;
16
(f) a copy of any report, relevant to the trial, that has been
17
prepared by an expert witness who the Director of Military
18
Prosecutions proposes to call at the trial;
19
(g) a copy or details of any information in the Director of
20
Military Prosecutions' possession that might adversely affect
21
the reliability or credibility of a prosecution witness;
22
(h) a copy or details of any information, document or other thing
23
in the Director of Military Prosecutions' possession that the
24
Director reasonably believes contains evidence that may be
25
relevant to the accused person's case;
26
(i) if the Director of Military Prosecutions reasonably believes
27
information in the Director's possession suggests the
28
existence of evidence that may be relevant to the accused
29
person's case--a copy or details of so much of that
30
information as is necessary to suggest that existence;
31
(j) a list identifying:
32
(i) any information, document or other thing not in the
33
Director of Military Prosecutions' possession that the
34
Director reasonably believes contains evidence that may
35
be relevant to the accused person's case; and
36
(ii) for each item of information, and each document or
37
other thing--a place where the Director of Military
38
Original jurisdiction of the Military Court Part 5
Pre-trial matters Division 4
Section 78
Military Court of Australia Bill 2012 No. , 2012 55
Prosecutions reasonably believes the item, document or
1
thing to be;
2
(k) a copy or details of any information, document or other thing
3
in the Director of Military Prosecutions' possession that is
4
adverse to the accused person's credit or credibility.
5
(2) The notice of the prosecution's case may include other matters.
6
(3) For the purposes of paragraphs (1)(h) and (i) and
7
subparagraph (1)(j)(i), evidence is relevant to the accused
8
person's case if the evidence is capable of either or both of the
9
following:
10
(a) undermining the prosecution's case;
11
(b) assisting the accused person's case.
12
78 Copies of things need not be provided if impracticable etc.
13
(1) Nothing in this Division requires a copy or details of any
14
information, document or other thing to be given if it is unlawful,
15
impossible or impracticable to provide the copy or details.
16
(2) However, the party to the proceeding required (but for
17
subsection (1)) to give the copy or details must:
18
(a) notify the other party of a reasonable time and place at which
19
the information, document or other thing may be inspected;
20
and
21
(b) allow the other party a reasonable opportunity to inspect the
22
information, document or other thing.
23
79 Personal details need not be provided
24
(1) Nothing in this Division requires the Director of Military
25
Prosecutions to disclose the address or telephone number of any
26
witness proposed to be called by the Director of Military
27
Prosecutions, or of any other living person, unless:
28
(a) the address or telephone number is a materially relevant part
29
of the evidence; or
30
(b) on application by the accused person--the Military Court
31
makes an order directing the disclosure.
32
Part 5 Original jurisdiction of the Military Court
Division 4 Pre-trial matters
Section 80
56 Military Court of Australia Bill 2012 No. , 2012
Note:
The Military Court may make orders to protect witnesses, information,
1
documents and other things (see sections 167 and 168).
2
(2) The Military Court must not make an order under paragraph (1)(b)
3
directing the disclosure of information unless it is satisfied that:
4
(a) the accused person needs the information to prepare properly
5
for the hearing of the evidence for the prosecution; and
6
(b) if the disclosure is likely to present a risk to a person's safety
7
or welfare--the accused person's need for the information
8
outweighs this risk.
9
(3) This section does not prevent the disclosure of an address if:
10
(a) the disclosure does not identify it as a particular person's
11
address; and
12
(b) it could not reasonably be inferred from the matters disclosed
13
that it is a particular person's address.
14
(4)
If:
15
(a) a statement is to be given to the accused person; and
16
(b) the statement contains an address or telephone number that
17
must not be disclosed;
18
the address or telephone number may, without reference to the
19
person who made the statement, be deleted from the statement, or
20
rendered illegible, before the statement is given to the accused
21
person.
22
80 Things need not be disclosed to a party more than once
23
A party (the first party) to a proceeding (the current proceeding)
24
need not disclose anything under this Division to another party if
25
the first party has already disclosed it to the other party:
26
(a) during the current proceeding; or
27
(b) during other proceedings relating to a service offence
28
founded on alleged facts that are the same or substantially the
29
same as those for a service offence being prosecuted in the
30
current proceeding.
31
Original jurisdiction of the Military Court Part 5
Pre-trial matters Division 4
Section 81
Military Court of Australia Bill 2012 No. , 2012 57
81 Consequences of disclosure requirements
1
Orders to ensure non-compliance does not unfairly affect accused
2
person
3
(1) The Military Court may make such orders as it thinks appropriate
4
to ensure that any failure by the Director of Military Prosecutions
5
to comply with an order under subsection 76(1) does not cause
6
unfairness to the accused person.
7
(2) However, the Military Court must not make an order under
8
subsection (1) if it would result in an unfair trial.
9
Certain evidence cannot be adduced at trial unless there is earlier
10
disclosure
11
(3) If the accused person fails to comply with subsection 76(3) in
12
relation to an alibi, the accused person may only adduce evidence
13
of the alibi with the leave of the Military Court.
14
(4) If the accused person fails to comply with subsection 76(3) in
15
relation to a mental impairment, the accused person may only
16
adduce evidence that he or she was suffering from the impairment
17
with the leave of the Military Court.
18
82 Restricting further disclosure of disclosed material
19
(1) This section restricts what a person (the entrusted person) may do
20
with any information, document or other thing (the protected
21
material) the person obtains as the result of a disclosure under this
22
Division.
23
(2) The entrusted person commits an offence if the person discloses
24
any protected material to another person.
25
Penalty: Imprisonment for 2 years.
26
(3) Each of the following is an exception to the prohibition in
27
subsection (2):
28
(a) the disclosure is for the purposes of the proceedings for
29
which the entrusted person obtained the protected material;
30
(b) the Military Court has given leave for the disclosure;
31
Part 5 Original jurisdiction of the Military Court
Division 4 Pre-trial matters
Section 83
58 Military Court of Australia Bill 2012 No. , 2012
(c) the disclosure happens for the purposes of, or in connection
1
with, the performance of the duties of the entrusted person's
2
official employment;
3
(d) the disclosure is of protected material that has already been
4
lawfully disclosed in proceedings in open court.
5
Note:
A defendant bears an evidential burden in relation to a matter in
6
subsection (3) (see subsection 13.3(3) of the Criminal Code).
7
(4) The entrusted person is not to be required:
8
(a) to produce to a court or tribunal any document that is or
9
contains protected material; or
10
(b) to disclose protected material to a court or tribunal.
11
(5) In this section:
12
disclose means divulge or communicate.
13
official employment means:
14
(a)
service
as:
15
(i) the Director of Military Prosecutions; or
16
(ii) the Defence Minister; or
17
(iii) a person appointed by the Governor-General in relation
18
to the prosecution for which the entrusted person
19
obtained the protected material; or
20
(b) representing, or otherwise performing services for, a person
21
referred to in paragraph (a); or
22
(c) exercising the powers, or performing the functions, of the
23
Director of Military Prosecutions.
24
83 Restricting admissibility of disclosed material as evidence in
25
other proceedings
26
(1) The Military Court may order that any or all of the material
27
disclosed under this Division in relation to a proceeding (the
28
primary proceeding) is not admissible:
29
(a) in any other proceedings before the Military Court; or
30
(b) in any other court (whether exercising federal jurisdiction or
31
not); or
32
Original jurisdiction of the Military Court Part 5
Pre-trial matters Division 4
Section 84
Military Court of Australia Bill 2012 No. , 2012 59
(c) in any proceedings before a person authorised by a law of the
1
Commonwealth or of a State or Territory, or by the consent
2
of the parties, to hear evidence.
3
(2) An order made under subsection (1) ceases to have effect if, during
4
the primary proceeding, the material is lawfully disclosed in open
5
court.
6
(3) The Military Court may, on the application of an interested person
7
(whether during the primary proceeding or otherwise), order that
8
an order made under subsection (1) be:
9
(a) set aside; or
10
(b)
varied;
11
if the Military Court is satisfied it is in the interests of justice to do
12
so.
13
(4) The Military Court may, before making an order under
14
subsection (3), direct that notice of the application be given to such
15
persons as it thinks fit or be published in such manner as it thinks
16
fit, or both.
17
84 Objecting to charges
18
(1) The accused person may object to a charge in the charge sheet on
19
the basis:
20
(a) of a formal defect apparent on the face of the charge sheet; or
21
(b) of the Military Court lacking jurisdiction; or
22
(c) of autrefois acquit or autrefois convict; or
23
(d) of a pardon.
24
Note:
The objection must be raised during a pre-trial hearing unless the
25
Military Court allows otherwise (see subsection 75(7)).
26
(2) If the Military Court upholds the objection, the Military Court
27
may:
28
(a) in every case:
29
(i) make an order dismissing the charge in relation to the
30
accused person; and
31
(ii) discharge the accused person in relation to the charge;
32
and
33
Part 5 Original jurisdiction of the Military Court
Division 4 Pre-trial matters
Section 84
60 Military Court of Australia Bill 2012 No. , 2012
(iii) make such other orders as it thinks appropriate in the
1
circumstances; or
2
(b) if the objection is covered by paragraph (1)(a)--make an
3
order for the amendment of the charge sheet to remove the
4
defect instead of dismissing the charge.
5
6
Original jurisdiction of the Military Court Part 5
Matters relating to pleas, the trial and verdicts Division 5
Section 85
Military Court of Australia Bill 2012 No. , 2012 61
Division 5--Matters relating to pleas, the trial and verdicts
1
85 Practice and procedure applicable to the trial
2
(1) Subject to subsection (2), the laws relating to the practice and
3
procedure to be followed during the trial are to be the laws in force
4
at the time the proceeding was instituted in the Military Court.
5
(2) The Military Court may order that the laws relating to the practice
6
and procedure to be followed during the trial are to be the laws in
7
force at a time other than the time the proceeding was instituted in
8
the Military Court.
9
86 Entering pleas
10
(1) The accused person may enter a plea of guilty, or not guilty, to a
11
charge in the charge sheet.
12
Note:
The Military Court may reject a plea of guilty in the interests of justice
13
(see subsection 91(1)).
14
(2) The accused person is taken to have entered a plea of not guilty to
15
a charge if the accused person fails to enter a plea to the charge
16
when directed by the Military Court.
17
Note:
A failure to enter a plea includes a failure to say anything and a failure
18
to give a direct answer.
19
(3) The accused person may both:
20
(a) enter a plea to a charge in the charge sheet; and
21
(b) object to the charge.
22
87 Pleading to some charges in satisfaction of other charges
23
If:
24
(a) the accused person enters a plea of guilty to one or more
25
charges included in the charge sheet; and
26
(b) the Director of Military Prosecutions advises the Military
27
Court that the Director accepts the plea or pleas of guilty in
28
satisfaction of all the charges included in the charge sheet;
29
Part 5 Original jurisdiction of the Military Court
Division 5 Matters relating to pleas, the trial and verdicts
Section 88
62 Military Court of Australia Bill 2012 No. , 2012
then the charges in the charge sheet are taken to be amended so
1
that only the charges in respect of which the Director has accepted
2
the plea or pleas of guilty are included in the charge sheet.
3
88 Pleading to different service offences capable of being supported
4
by charge included in charge sheet
5
(1) The accused person may enter a plea of guilty to a charge of a
6
service offence not included in the charge sheet if:
7
(a) the Military Court has jurisdiction to try a person for the
8
service offence; and
9
(b) the Director of Military Prosecutions consents; and
10
(c) the charge or charges included in the charge sheet can
11
support an allegation that the accused person committed the
12
service offence.
13
(2) For the purposes of this Act, if the accused person pleads guilty to
14
a service offence in accordance with subsection (1), the charge
15
sheet is taken to have always included a charge against the accused
16
person for that service offence.
17
Note:
If the accused person proposes to enter a plea of guilty to a service
18
offence that cannot be supported by the charge or charges included in
19
the charge sheet, the Director of Military Prosecutions will need to
20
amend the charges under section 74 to include a charge for the service
21
offence before the accused person can enter the plea to that service
22
offence.
23
89 Changing pleas
24
Accused person may change plea
25
(1) The accused person may change his or her plea in accordance with
26
this section.
27
Changing plea to guilty
28
(2) If the accused person has entered a plea of not guilty in relation to
29
a charge, the accused person may change the plea to guilty.
30
Note:
The Military Court may reject the change of plea in the interests of
31
justice (see subsection 91(1)).
32
Original jurisdiction of the Military Court Part 5
Matters relating to pleas, the trial and verdicts Division 5
Section 90
Military Court of Australia Bill 2012 No. , 2012 63
Changing plea to not guilty
1
(3) If the accused person has entered a plea of guilty in relation to a
2
charge, the accused person may change the plea to not guilty only
3
with the leave of the Military Court.
4
(4) The Military Court may grant leave at any time before the Military
5
Court imposes a sentence on the accused person in relation to a
6
service offence covered by the charge.
7
(5) If the accused person changes the plea in accordance with
8
subsection (3):
9
(a) the Military Court must direct that the accused person be put
10
on trial in relation to the charge; and
11
(b) the Military Court may make such orders as to matters
12
preliminary to the trial as the Military Court thinks
13
appropriate.
14
90 Military Court's verdict if no case to answer
15
(1) This section applies if, after the close of the Director of Military
16
Prosecutions' case for a charge in the charge sheet in relation to the
17
accused person, the Military Court finds the accused person has no
18
case to answer in relation to the charge.
19
(2) The Military Court must:
20
(a) enter a judgement of acquittal for the charge in relation to the
21
accused person; and
22
(b) discharge the accused person in relation to the charge.
23
91 Consequences of guilty pleas and guilty verdicts
24
Guilty pleas
25
(1) If the accused person:
26
(a) enters a plea of guilty; or
27
(b) changes, in accordance with subsection 89(2), a plea of not
28
guilty to a plea of guilty;
29
to a charge in the charge sheet, the Military Court must accept the
30
plea of guilty unless:
31
Part 5 Original jurisdiction of the Military Court
Division 5 Matters relating to pleas, the trial and verdicts
Section 91
64 Military Court of Australia Bill 2012 No. , 2012
(c) the Military Court gives leave under subsection 89(3) for the
1
accused person to change the plea of guilty to a plea of not
2
guilty; or
3
(d) it would be contrary to the interests of justice to accept the
4
plea of guilty.
5
(2) If a plea of guilty is not accepted under subsection (1):
6
(a) the plea has no further effect; and
7
(b) the accused person is taken to have entered a plea of not
8
guilty to the charge.
9
Consequences of guilty verdict or acceptance of guilty plea
10
(3) If a plea of guilty is accepted for a charge in the charge sheet in
11
relation to an accused person, then:
12
(a) the Military Court is taken to have found the charge proven
13
in relation to the accused person; and
14
(b) the accused person is taken to be convicted of the service
15
offence covered by the charge.
16
(4) If the Military Court finds an accused person guilty of a service
17
offence covered by a charge in the charge sheet, or a plea of guilty
18
is accepted for a charge in the charge sheet in relation to an
19
accused person, then:
20
(a) the Military Court must proceed to sentence the accused
21
person in relation to the service offence (whether or not the
22
Military Court first adjourns the proceeding); and
23
(b) if a charge of an alternative offence was included in the
24
charge sheet in relation to the accused person--the Military
25
Court must discharge the accused person in relation to the
26
charge of the alternative offence.
27
(5) However, if the accused person changes, in accordance with
28
subsection 89(3), a plea of guilty to the charge to a plea of not
29
guilty, then:
30
(a) paragraphs (3)(a) and (b) are taken never to have applied in
31
relation to the plea of guilty; and
32
(b) the Military Court must cease any sentencing proceeding to
33
the extent that the proceeding relates to the plea of guilty; and
34
Original jurisdiction of the Military Court Part 5
Matters relating to pleas, the trial and verdicts Division 5
Section 92
Military Court of Australia Bill 2012 No. , 2012 65
(c) if the Military Court has discharged the accused under
1
paragraph (4)(b) in relation to a charge of an alternative
2
offence--the accused is taken never to have been so
3
discharged.
4
(6) Paragraphs (3)(b) and (4)(a) do not apply in relation to an accused
5
person and a charge if the Military Court makes an order under
6
section 19B of the Crimes Act 1914 in relation to the accused
7
person and the charge.
8
Note:
Under section 19B of the Crimes Act 1914, if the Military Court is
9
satisfied that a charge against an accused person is proved, the
10
Military Court may, in certain circumstances, dismiss the charge or
11
discharge the person without proceeding to conviction in respect of
12
the charge.
13
92 Consequences of not guilty verdicts
14
If the Military Court finds an accused person not guilty of a service
15
offence covered by a charge in the charge sheet, the Military Court
16
must acquit and discharge the accused person in relation to the
17
charge.
18
19
Part 6 Appellate jurisdiction of the Military Court
Division 1 Introduction
Section 93
66 Military Court of Australia Bill 2012 No. , 2012
Part 6--Appellate jurisdiction of the Military
1
Court
2
Division 1--Introduction
3
93 Guide to this Part
4
This Part deals with the appellate jurisdiction of the Military Court.
5
Division 2 provides that the Military Court has jurisdiction to hear
6
appeals from certain judgements and decisions of the Military
7
Court. Division 2 also deals with matters relating to bringing
8
appeals and the constitution of the Military Court in exercising its
9
appellate jurisdiction.
10
Division 3 deals with the powers of the Military Court in
11
exercising its appellate jurisdiction.
12
Division 4 provides for cases to be stated and questions to be
13
reserved for consideration by a Full Court, and other matters.
14
15
Appellate jurisdiction of the Military Court Part 6
Bringing appeals Division 2
Section 94
Military Court of Australia Bill 2012 No. , 2012 67
Division 2--Bringing appeals
1
94 Allowable appeals
2
The Military Court has jurisdiction to hear and determine:
3
(a) appeals from judgements or decisions of the Military Court
4
constituted by a single Judge or a Federal Magistrate
5
exercising the original jurisdiction of the Military Court; and
6
(b) appeals from judgements of the Military Court under Part 8
7
(which deals with custody and bail).
8
95 Leave to appeal
9
An appeal must not be brought to the Military Court unless:
10
(a) the Full Court or a Judge gives leave to appeal; or
11
(b) the appeal involves a question of law alone; or
12
(c) the appeal relates to bail.
13
96 Who may appeal
14
Appeal by accused person
15
(1) The accused person may do either or both of the following in
16
relation to a judgement or decision referred to in section 94:
17
(a) make an application referred to in subsection 98(4) in relation
18
to the judgement or decision;
19
(b) in accordance with this Part, bring an appeal from the
20
judgement or decision.
21
Appeal by Director of Military Prosecutions
22
(2) The Director of Military Prosecutions may do either or both of the
23
following in relation to a judgement or decision referred to in
24
section 94:
25
(a) make an application referred to in subsection 98(4) in relation
26
to the judgement or decision;
27
(b) in accordance with this Part, bring an appeal from the
28
judgement or decision.
29
Part 6 Appellate jurisdiction of the Military Court
Division 2 Bringing appeals
Section 97
68 Military Court of Australia Bill 2012 No. , 2012
(3) However, the Director of Military Prosecutions must not make an
1
application, or bring an appeal, referred to in subsection (2) in
2
relation to:
3
(a) a judgement that acquits the accused person; or
4
(b) an order made under section 153 or 154.
5
Note:
Section 153 provides for the Military Court to make orders in relation
6
to a person who has been found unfit to be tried. Section 154 provides
7
for the Military Court to make orders in relation to a person who has
8
been acquitted of a service offence because he or she was suffering
9
from a mental impairment at the time of carrying out the conduct
10
constituting the service offence.
11
97 Time for appealing
12
(1) This section applies to the filing of:
13
(a) an application for leave to appeal under paragraph 94(a); or
14
(b) a notice of appeal under paragraph 94(a) for an appeal
15
involving a question of law alone; or
16
(c) a notice of appeal under paragraph 94(b);
17
in relation to a judgement or decision of the Military Court.
18
(2) The application for leave to appeal, or the notice of appeal, must be
19
filed in the Military Court before the end of 30 days after the end
20
of:
21
(a) in the case of a judgement convicting the accused person--
22
the day the accused person is sentenced in relation to the
23
conviction; or
24
(b) in the case of a judgement sentencing the accused person--
25
the day the accused person is so sentenced; or
26
(c) in the case of a judgement or decision relating to bail or an
27
interlocutory judgement--the day the judgement or decision
28
was made; or
29
(d) otherwise--the day the accused person is discharged in
30
relation to the proceeding in which the judgement or decision
31
was given.
32
(3) However, the Military Court may, by order, extend (or further
33
extend) the period within which the application or notice must be
34
filed if the Military Court is satisfied it is in the interests of justice
35
to do so.
36
Appellate jurisdiction of the Military Court Part 6
Bringing appeals Division 2
Section 98
Military Court of Australia Bill 2012 No. , 2012 69
98 Exercise of appellate jurisdiction
1
(1) The appellate jurisdiction of the Military Court in relation to an
2
appeal from a judgement or decision of a single Judge is to be
3
exercised by a Full Court.
4
(2) The appellate jurisdiction of the Military Court in relation to an
5
appeal from a judgement or decision of a Federal Magistrate is to
6
be exercised by:
7
(a) a Full Court; or
8
(b) if the Chief Justice considers it appropriate for the appellate
9
jurisdiction of the Military Court in relation to the appeal to
10
be exercised by a single Judge--a single Judge.
11
(3) Subsections (1) and (2) have effect subject to subsections (4) and
12
(6).
13
(4)
An
application:
14
(a) for leave to appeal to the Military Court; or
15
(b) for an extension of time within which to file:
16
(i) an application for leave to appeal to the Military Court;
17
or
18
(ii) a notice of appeal to the Military Court; or
19
(c) for leave to amend the grounds of an appeal to the Military
20
Court; or
21
(d) to stay an order of a Federal Magistrate;
22
must be heard and determined by a single Judge unless:
23
(e) a Judge directs that the application be heard and determined
24
by a Full Court; or
25
(f) the application is made in a proceeding that has already been
26
assigned to a Full Court and the Full Court considers it is
27
appropriate for it to hear and determine the application.
28
(5) The Military Court may:
29
(a) make an interlocutory order pending, or after, the
30
determination of an appeal to the Military Court; or
31
(b) make an order that an appeal to the Military Court be
32
dismissed for want of prosecution; or
33
Part 6 Appellate jurisdiction of the Military Court
Division 2 Bringing appeals
Section 99
70 Military Court of Australia Bill 2012 No. , 2012
(c) make an order that an appeal to the Military Court be
1
dismissed for failure to comply with a direction of the
2
Military Court; or
3
(d) vary or set aside an order under paragraph (b) or (c); or
4
(e) give directions about the conduct of an appeal to the Military
5
Court.
6
(6) An application for the exercise of a power mentioned in
7
subsection (5) must be heard and determined by a single Judge
8
unless:
9
(a) a Judge directs that the application be heard and determined
10
by a Full Court; or
11
(b) the application is made in a proceeding that has already been
12
assigned to a Full Court and the Full Court considers it is
13
appropriate for it to hear and determine the application.
14
(7) The Military Court Rules may make provision enabling:
15
(a) an application of the kind referred to in subsection (4); or
16
(b) a matter of the kind referred to in subsection (5);
17
to be dealt with, subject to conditions prescribed by the Military
18
Court Rules, without an oral hearing either with or without the
19
consent of the parties.
20
99 Stay of proceedings and suspension of orders
21
(1) If an appeal to the Military Court has been instituted in relation to a
22
judgement or decision (the appealed decision), the Military Court
23
may make an order, on such conditions (if any) as the Military
24
Court thinks fit, to stay or otherwise affect the operation or
25
implementation of any order arising from the appealed decision.
26
(2) This section does not affect the operation of any provision made by
27
or under any other Act or by the Military Court Rules for or in
28
relation to the stay or suspension of orders.
29
100 Right to attend
30
A party to an appeal to the Military Court is entitled to be present
31
at the hearing of the appeal, unless:
32
(a) the Military Court orders otherwise; or
33
Appellate jurisdiction of the Military Court Part 6
Bringing appeals Division 2
Section 101
Military Court of Australia Bill 2012 No. , 2012 71
(b) the Military Court directs or allows the party to appear by
1
way of video link, audio link or other appropriate means.
2
Note:
Division 5 of Part 11 deals with appearing by video link, audio link or
3
other means.
4
101 Practice and procedure applicable to appeal
5
(1) Subject to subsection (2), the laws relating to the practice and
6
procedure to be followed during appeal proceedings are to be the
7
laws in force:
8
(a) if the appeal cannot be brought unless leave is given--at the
9
time the application for leave to appeal is filed in the Military
10
Court; or
11
(b) otherwise--at the time the notice of appeal is filed in the
12
Military Court.
13
(2) The Military Court may order that the laws relating to the practice
14
and procedure to be followed during the appeal proceedings are to
15
be the laws in force at a time other than the time applicable under
16
subsection (1).
17
102 Evidence on appeal
18
(1) In an appeal, the Military Court:
19
(a) must have regard to the evidence given in the proceeding out
20
of which the appeal arose; and
21
(b) may draw inferences of fact; and
22
(c) may, if satisfied it is in the interests of justice to do so,
23
receive further evidence, which may be taken:
24
(i) on affidavit; or
25
(ii) by video link, audio link or other appropriate means in
26
accordance with Division 5 of Part 11 or another law of
27
the Commonwealth; or
28
(iii) by oral examination before the Military Court.
29
Note:
Paragraph (c) does not require the Military Court to receive further
30
evidence, for example, if the failure to adduce the evidence during the
31
trial is not satisfactorily explained.
32
Part 6 Appellate jurisdiction of the Military Court
Division 2 Bringing appeals
Section 103
72 Military Court of Australia Bill 2012 No. , 2012
(2) The Military Court may receive further evidence under
1
paragraph (1)(c) by:
2
(a) directing the evidence be taken by a single Judge; and
3
(b) having regard to the findings of that Judge in relation to that
4
evidence.
5
103 Prison sentence does not include time on bail
6
If:
7
(a) a person is convicted of a service offence and is sentenced to
8
a term of imprisonment; and
9
(b) the person appeals to the Military Court against the
10
conviction or sentence, or both;
11
any time during which the person is released on bail pending the
12
determination of the appeal does not count as part of the term of
13
imprisonment to which the person has been sentenced.
14
15
Appellate jurisdiction of the Military Court Part 6
Powers of Military Court on appeal Division 3
Section 104
Military Court of Australia Bill 2012 No. , 2012 73
Division 3--Powers of Military Court on appeal
1
104 Military Court may give such judgement as is appropriate
2
(1) The Military Court may, by order, when exercising its appellate
3
jurisdiction under this Part:
4
(a) dismiss or allow the appeal; and
5
(b) take such other action as it thinks appropriate in the
6
circumstances.
7
(2) Without limiting subsection (1), the other action the Military Court
8
may take if it allows an appeal includes the action set out in
9
sections 105 to 108.
10
105 When to allow appeals
11
Appeals against conviction
12
(1) The Military Court must allow an appeal from a judgement
13
convicting an accused person if the Military Court is satisfied:
14
(a) that the judgement should be set aside on the ground of a
15
wrong decision of any question of law; or
16
(b) that there has been a substantial miscarriage of justice.
17
(2) However, the Military Court may dismiss the appeal if the Military
18
Court is satisfied:
19
(a) of the matter in paragraph (1)(a); and
20
(b) that there has not been a substantial miscarriage of justice.
21
Appeals against sentence
22
(3) The Military Court must allow an appeal from a judgement
23
sentencing an accused person if the Military Court is satisfied that
24
some other sentence (whether more or less severe) is warranted in
25
law.
26
Other appeals
27
(4) The Military Court may allow any other appeal if the Military
28
Court is satisfied it is in the interests of justice to do so.
29
Part 6 Appellate jurisdiction of the Military Court
Division 3 Powers of Military Court on appeal
Section 106
74 Military Court of Australia Bill 2012 No. , 2012
106 Allowing appeals against convictions
1
If the Military Court allows an appeal against a conviction of an
2
accused person of a service offence (the original service offence),
3
the Military Court may:
4
(a) set aside the conviction (with or without an order for a new
5
trial); or
6
(b) acquit the accused person of the charge; or
7
(c) find the accused person guilty of an alternative offence, being
8
a service offence that is an alternative offence (within the
9
meaning of section 142 of the Defence Force Discipline Act
10
1982) in relation to the original service offence.
11
107 Allowing appeals against sentences
12
If the Military Court allows an appeal against a sentence, the
13
Military Court may:
14
(a) increase or decrease the sentence; or
15
(b) substitute a different sentence.
16
108 Allowing appeals against bail, bail forfeiture or interlocutory
17
judgements and decisions (including about custody)
18
(1) This section applies if the Military Court allows an appeal against
19
any of the following:
20
(a)
bail;
21
(b)
bail
forfeiture;
22
(c) an interlocutory judgement or decision (including about
23
custody).
24
(2) The Military Court may:
25
(a) set aside the judgement or decision (the appealed decision);
26
or
27
(b) vary the appealed decision; or
28
(c) substitute a new judgement or decision for the appealed
29
decision.
30
(3) The Military Court may also make orders about custody or bail.
31
Appellate jurisdiction of the Military Court Part 6
Powers of Military Court on appeal Division 3
Section 109
Military Court of Australia Bill 2012 No. , 2012 75
109 Costs
1
Appeals by accused persons
2
(1) If the Military Court allows an appeal by an accused person, the
3
Military Court may, if it considers it appropriate, order the
4
Commonwealth to pay to the accused person such amount as the
5
Military Court considers to be reasonably sufficient to compensate
6
the accused person for expenses properly incurred by him or her:
7
(a) in the prosecution of his or her appeal and any proceedings
8
preliminary or incidental to the appeal; or
9
(b) in carrying on his or her defence against the charge or
10
charges out of which the appeal arose.
11
(2) If the Military Court dismisses an appeal, or an application for
12
leave to appeal, by an accused person, the Military Court may, if it
13
considers it appropriate, order the accused person to pay to the
14
Commonwealth the whole or any part of the costs of the appeal or
15
application, including:
16
(a) any allowances paid to a witness; and
17
(b) the costs of copying or transcribing any documents for the
18
use of the Military Court.
19
Appeals by Director of Military Prosecutions
20
(3) If the Military Court allows an appeal by the Director of Military
21
Prosecutions, the Military Court may, if it considers it appropriate,
22
order the accused person to pay to the Commonwealth the whole or
23
any part of the costs of the appeal, including:
24
(a) any allowances paid to a witness; and
25
(b) the costs of copying or transcribing any documents for the
26
use of the Military Court.
27
(4) If the Military Court dismisses an appeal, or an application for
28
leave to appeal, by the Director of Military Prosecutions, the
29
Military Court may, if it considers it appropriate, order the
30
Commonwealth to pay to the accused person such amount as the
31
Military Court considers to be reasonably sufficient to compensate
32
the accused person for expenses properly incurred by him or her:
33
Part 6 Appellate jurisdiction of the Military Court
Division 3 Powers of Military Court on appeal
Section 110
76 Military Court of Australia Bill 2012 No. , 2012
(a) in responding to the appeal and any proceedings preliminary
1
or incidental to the appeal; or
2
(b) in carrying on his or her defence against the charge or
3
charges out of which the appeal arose.
4
110 New trials
5
(1) In an appeal in which the Military Court grants a new trial, the
6
Military Court may impose such conditions on a party, and direct
7
such admissions to be made by a party, for the purpose of the new
8
trial as are just.
9
(2) If the Military Court grants a new trial, the Military Court:
10
(a) may grant it, either generally or on particular issues only, as
11
it thinks just; and
12
(b) may order that evidence of a witness examined at the former
13
trial may be used in the new trial in the manner provided in
14
the order.
15
16
Appellate jurisdiction of the Military Court Part 6
Other matters Division 4
Section 111
Military Court of Australia Bill 2012 No. , 2012 77
Division 4--Other matters
1
111 Cases stated and questions reserved
2
(1) The Military Court constituted by a single Judge or a Federal
3
Magistrate may state any case or reserve any question concerning a
4
matter with respect to which an appeal would lie to the Military
5
Court for consideration by a Full Court.
6
(2) The Full Court has jurisdiction to hear and determine the case or
7
question.
8
112 Questions referred after trial
9
(1) If a judgement of the Military Court acquits a person following a
10
trial for a service offence, the Director of Military Prosecutions
11
may apply to the Military Court for leave to refer a question of law
12
arising from the judgement to a Full Court for its determination.
13
(2) If leave is granted, both the Director of Military Prosecutions and
14
the acquitted person may make submissions to the Full Court in
15
relation to the Military Court's determination on the question of
16
law.
17
(3) A determination made by the Military Court on the question of law
18
does not affect the person's acquittal.
19
(4) The Full Court has jurisdiction to hear and determine the question
20
of law.
21
22
Part 7 Appeals to the High Court
Section 113
78 Military Court of Australia Bill 2012 No. , 2012
Part 7--Appeals to the High Court
1
2
113 Appeals to the High Court
3
(1) An appeal must not be brought to the High Court from a judgement
4
of the Military Court constituted by a single Judge or a Federal
5
Magistrate exercising the original jurisdiction of the Military
6
Court.
7
(2) An appeal must not be brought to the High Court from a judgement
8
of a Full Court of the Military Court unless the High Court gives
9
special leave to appeal.
10
(3) An appeal must not be brought to the High Court from a judgement
11
of the Military Court constituted by a single Judge exercising the
12
appellate jurisdiction of the Military Court unless the High Court
13
gives special leave to appeal.
14
(4) An appeal must not be brought to the High Court from a judgement
15
of a Full Court of the Military Court exercising the original
16
jurisdiction of the Military Court if the judgement is:
17
(a) a decision to join or remove a party, or not to join or remove
18
a party; or
19
(b) a decision to adjourn or expedite, or not to adjourn or
20
expedite, a hearing; or
21
(c) a decision to vacate, or not to vacate, a hearing date.
22
(5) An appeal must not be brought to the High Court from a judgement
23
of the Military Court (whether constituted by a Full Court or a
24
single Judge) exercising the appellate jurisdiction of the Military
25
Court if the judgement is:
26
(a) a determination of an application of the kind mentioned in
27
subsection 98(4); or
28
(b) a decision to join or remove a party, or not to join or remove
29
a party; or
30
(c) an order under section 99 (which deals with stay of
31
proceedings and suspension of orders); or
32
(d) a decision to grant or refuse leave to defend a proceeding; or
33
Appeals to the High Court Part 7
Section 113
Military Court of Australia Bill 2012 No. , 2012 79
(e) a decision to reinstate, or not to reinstate, an appeal that was
1
taken to have been abandoned or dismissed; or
2
(f) a decision to extend, or not to extend, the time for making an
3
application for leave to appeal; or
4
(g) a decision to adjourn or expedite, or not to adjourn or
5
expedite, a hearing; or
6
(h) a decision to vacate, or not to vacate, a hearing date.
7
(6) The fact that there has been, or can be, no appeal to the High Court
8
from an interlocutory judgement of the Military Court in a
9
proceeding does not prevent:
10
(a) a party from founding an appeal from a final judgement in
11
the proceeding on the interlocutory judgement; or
12
(b) the High Court from taking account of the interlocutory
13
judgement in determining:
14
(i) an appeal from a final judgement in the proceeding; or
15
(ii) an application for special leave to appeal from a final
16
judgement in the proceeding.
17
(7) The jurisdiction of the High Court to hear and determine an appeal
18
in accordance with this section is to be exercised by a Full Court of
19
the High Court consisting of not less than 3 Justices.
20
21
Part 8 Custody and bail
Division 1 Introduction
Section 114
80 Military Court of Australia Bill 2012 No. , 2012
Part 8--Custody and bail
1
Division 1--Introduction
2
114 Guide to this Part
3
This Part deals with custody and bail.
4
Division 2 provides for the Military Court to make arrangements
5
for the custody or discharge of an accused person if proceedings
6
are adjourned.
7
Division 3 deals with granting bail, and provides for bail
8
undertakings and third party security undertakings.
9
Division 4 provides for the Military Court to reconsider bail orders.
10
Division 5 deals with the consequences (including forfeiture
11
orders) of failing to appear in accordance with a bail undertaking.
12
Division 6 deals with when bail ends, including bail orders ceasing
13
to have effect and the return of security.
14
Division 7 deals with other matters, including admissibility of bail
15
orders and undertakings, and offences relating to bail undertakings
16
and third party security undertakings.
17
18
Custody and bail Part 8
Custodial matters Division 2
Section 115
Military Court of Australia Bill 2012 No. , 2012 81
Division 2--Custodial matters
1
115 Arrangements for accused person if proceeding adjourned
2
(1) This section applies in relation to a proceeding in respect of a
3
charge of a service offence if:
4
(a) the accused person has appeared before the Military Court;
5
and
6
(b) after that appearance, it becomes necessary to adjourn the
7
proceeding.
8
(2) The Military Court may:
9
(a) by warrant, remand the accused person in custody for such
10
period as the Military Court considers necessary; or
11
(b) order the discharge of the accused person upon his or her
12
entering into a recognisance conditioned for his or her
13
appearance at the time and place appointed for continuing the
14
proceeding.
15
16
Part 8 Custody and bail
Division 3 Granting bail
Section 116
82 Military Court of Australia Bill 2012 No. , 2012
Division 3--Granting bail
1
116 Applying for bail
2
(1) Subject to subsection (2), during a proceeding (including an
3
appeal) in respect of a service offence, the accused person may
4
apply to the Military Court for bail.
5
(2) However, if the Military Court refuses to grant bail to the accused
6
person for the service offence, the accused person must not apply
7
again for bail for the offence unless there has been a material
8
change in circumstances since the refusal.
9
117 Granting bail
10
(1) The Military Court may, by order, grant bail to an accused person
11
for one or more service offences.
12
(2) In deciding whether to grant bail, the Military Court must consider
13
the following:
14
(a) whether the accused person will appear in court if bail is
15
granted;
16
(b) the interests of the accused person;
17
(c) the protection of any other person;
18
(d) the protection and welfare of the community, including
19
whether there is a risk that the accused person will commit
20
offences if bail were granted;
21
(e) whether there is a risk that the accused person will approach
22
witnesses or attempt to destroy evidence;
23
(f) the service requirements of the Australian Defence Force.
24
Note:
Section 15AB of the Crimes Act 1914 sets out other matters that the
25
Military Court must consider in deciding whether to grant bail.
26
118 Bail may be granted subject to conditions
27
(1) A bail order may be made unconditionally or subject to one or
28
more specified conditions.
29
(2) Without limiting subsection (1), the conditions can include one or
30
more of the following:
31
Custody and bail Part 8
Granting bail Division 3
Section 119
Military Court of Australia Bill 2012 No. , 2012 83
(a) the accused person reside at a specified place;
1
(b) the accused person report to a specified person at a specified
2
place at a specified time or times;
3
(c) the accused person surrender any passport held by the
4
accused person and agree not to approach a point of
5
international departure;
6
(d) the accused person provide security in the form of money, or
7
other property, for forfeiture if the accused person fails to
8
appear before the Military Court in accordance with the
9
accused person's bail undertaking;
10
(e) one or more other specified persons provide security in the
11
form of money, or other property, for forfeiture if the accused
12
person fails to appear before the Military Court in accordance
13
with the accused person's bail undertaking.
14
(3) Money or other property deposited with the Military Court, or
15
otherwise provided, as security in accordance with a condition of
16
bail must be dealt with by the Military Court in accordance with
17
the Military Court Rules.
18
119 Bail to be stayed pending appeal
19
(1)
If:
20
(a) the Military Court makes a bail order; and
21
(b) the Director of Military Prosecutions requests the Military
22
Court to stay the bail order pending appeal;
23
the bail order is stayed by force of this section for 48 hours.
24
(2) If a notice of appeal from the bail order is filed within that 48
25
hours, the stay of the bail order continues by force of this section
26
until whichever of the following happens first:
27
(a) the appeal is finally disposed of;
28
(b) the Director of Military Prosecutions withdraws the appeal in
29
accordance with the Military Court Rules;
30
(c) a Full Court orders, under this subsection, that the stay be set
31
aside.
32
Part 8 Custody and bail
Division 3 Granting bail
Section 120
84 Military Court of Australia Bill 2012 No. , 2012
(3) If the Director of Military Prosecutions makes a request under
1
paragraph (1)(b), the appeal from the making of the bail order must
2
be dealt with as quickly as possible.
3
(4) If a bail order is stayed by force of this section, the Military Court
4
must, by order, remand the accused person in custody for the
5
duration of the stay.
6
(5) An order under subsection (4) may be signed by:
7
(a) a Judge or a Federal Magistrate; or
8
(b) the Registrar or a Deputy Registrar.
9
120 Bail undertakings etc.
10
(1) If the Military Court grants bail to an accused person, the accused
11
person may be released on bail only if:
12
(a) the accused person has signed an undertaking (a bail
13
undertaking) including the matters referred to in
14
subsection (2) and made in accordance with the Military
15
Court Rules; and
16
(b) each other person (if any), who as a condition of bail has
17
agreed to provide security, has signed an undertaking (a third
18
party security undertaking) made in accordance with the
19
Military Court Rules; and
20
(c) subsection 118(3) is complied with in relation to any security
21
required as a condition of bail.
22
(2) A bail undertaking must set out:
23
(a) an undertaking by the accused person:
24
(i) to appear in person before the Military Court in
25
accordance with the bail order; and
26
(ii) to promptly notify the Military Court if he or she
27
changes his or her residential address; and
28
(b) an undertaking by the accused person to comply with any
29
conditions on which bail has been granted.
30
(3) A bail undertaking, and any third party security undertaking made
31
in relation to the accused person's bail, must be expressed to cover:
32
(a) the period for which bail was granted; and
33
Custody and bail Part 8
Granting bail Division 3
Section 121
Military Court of Australia Bill 2012 No. , 2012 85
(b) each period for which bail may be continued.
1
(4) The Registrar must cause the parties to be given a copy of:
2
(a) the accused person's bail undertaking; and
3
(b) any third party security undertaking made in relation to the
4
accused person's bail.
5
121 Effect of granting bail
6
(1) If an accused person is released on bail for a service offence, the
7
accused person is entitled to be at liberty in respect of the offence
8
in accordance with the accused person's bail undertaking.
9
Note:
This does not prevent the accused person from being held in custody
10
for another service offence.
11
(2) Subsection (1) is subject to a stay under section 119.
12
122 Seeking discharge from undertaking to give security
13
(1) A person who has made a third party security undertaking in
14
relation to an accused person's bail may apply to the Military
15
Court to be discharged from the person's liability under that
16
undertaking.
17
(2)
If:
18
(a) the person makes an application under subsection (1); and
19
(b) at the time of applying, the accused person has not failed to
20
appear before the Military Court in accordance with the
21
accused person's bail undertaking;
22
the Military Court must direct that the person be discharged from
23
the person's liability, unless it is satisfied it would be contrary to
24
the interests of justice to do so.
25
Note:
A direction will cause a reconsideration of the accused person's bail
26
(see Division 4).
27
123 Dealings with property given as security for bail
28
A person commits an offence if:
29
(a) the person is:
30
(i) an accused person who has signed a bail undertaking; or
31
Part 8 Custody and bail
Division 3 Granting bail
Section 123
86 Military Court of Australia Bill 2012 No. , 2012
(ii) a person who has signed a third party security
1
undertaking made in relation to an accused person's
2
bail; and
3
(b) the person has, under that undertaking, undertaken to forfeit
4
security if the accused person does not appear before the
5
Military Court in accordance with the accused person's bail
6
undertaking; and
7
(c) while the undertaking is in force, the person:
8
(i) disposes of, or otherwise deals with, any of that security
9
that is not money; and
10
(ii) intends by this to prevent the forfeiture of the security,
11
to destroy the security or to reduce its value.
12
Penalty: Imprisonment for 2 years.
13
14
Custody and bail Part 8
Reconsidering bail orders Division 4
Section 124
Military Court of Australia Bill 2012 No. , 2012 87
Division 4--Reconsidering bail orders
1
124 Reconsidering bail--discharge of security or accused person
2
fails to comply with bail undertaking
3
(1) This section applies if, in relation to a bail order:
4
(a) the Military Court directs that a person be discharged from
5
the person's liability under a third party security undertaking;
6
or
7
(b) the Director of Military Prosecutions applies for the bail
8
order to be varied or revoked on the basis that the accused
9
person has failed to comply with his or her bail undertaking.
10
(2) The Military Court must cause the accused person to be brought
11
before the Military Court in accordance with the Military Court
12
Rules.
13
Note:
In a case where the accused person failed to appear before the Military
14
Court in accordance with the accused person's bail undertaking, the
15
Military Court may be asked to commence forfeiture proceedings (see
16
section 128).
17
(3) The Military Court may, by order, vary or revoke the bail order.
18
(4) In deciding whether to vary or revoke the bail order, the Military
19
Court must consider the matters set out in subsection 117(2).
20
125 Reconsidering bail--change in circumstances
21
(1) The Military Court may, by order, vary or revoke an accused
22
person's bail order if:
23
(a) the Military Court is satisfied that there has been a sufficient
24
change in circumstances since the bail order was made; and
25
(b) the Military Court considers the matters set out in subsection
26
117(2).
27
(2) If the Military Court is satisfied that an application for an order
28
under this section is frivolous or vexatious, the Military Court may
29
refuse the application without a hearing.
30
Part 8 Custody and bail
Division 4 Reconsidering bail orders
Section 126
88 Military Court of Australia Bill 2012 No. , 2012
126 Consequences if bail is varied or revoked
1
(1) If the Military Court varies an accused person's bail, the accused
2
person may be released on bail only if:
3
(a) the accused person has signed a new bail undertaking; and
4
(b) each other person (if any), who has undertaken to provide
5
security as a condition of bail, has signed a new third party
6
security undertaking; and
7
(c) subsection 118(3) is complied with in relation to any security
8
required as a condition of bail.
9
(2) If the Military Court revokes an accused person's bail, the Military
10
Court may cause the accused person to be committed to prison in
11
accordance with the Military Court Rules.
12
13
Custody and bail Part 8
Further consequences if accused person fails to appear in accordance with bail
undertaking Division 5
Section 127
Military Court of Australia Bill 2012 No. , 2012 89
Division 5--Further consequences if accused person fails to
1
appear in accordance with bail undertaking
2
127 Offence for failing to appear before the Military Court
3
An accused person commits an offence if:
4
(a) the person has given the Military Court a bail undertaking;
5
and
6
(b) the person is released on bail; and
7
(c) the person fails to appear before the Military Court in
8
accordance with the bail undertaking.
9
Penalty: Imprisonment for 2 years.
10
Note 1:
The accused person's bail will also be reconsidered under Division 4.
11
Note 2:
Part 2.3 of the Criminal Code sets out defences that may apply to this
12
offence.
13
128 Notice of proposed forfeiture
14
(1) The Director of Military Prosecutions may apply to the Military
15
Court for a direction under subsection (2) if an accused person
16
allegedly fails to appear before the Military Court in accordance
17
with the person's bail undertaking.
18
(2) The Military Court may direct the Registrar to give a notice to:
19
(a) each person who provided security for the accused person's
20
bail; and
21
(b) any other person who the Military Court considers may have
22
an interest in security provided for the accused person's bail.
23
A failure by the Registrar to give a notice to a person covered by
24
the direction, if the Registrar has made reasonable efforts to do so,
25
does not affect the validity of any forfeiture order.
26
(3) The notice must:
27
(a) invite the person to show cause, by filing an objection in
28
accordance with paragraphs 129(3)(b) and (c), why the
29
security should not be forfeited; and
30
(b) contain the particulars prescribed by the Military Court
31
Rules.
32
Part 8 Custody and bail
Division 5 Further consequences if accused person fails to appear in accordance with
bail undertaking
Section 129
90 Military Court of Australia Bill 2012 No. , 2012
(4) An application under subsection (1) may not be made more than 6
1
months after the alleged failure to appear before the Military Court.
2
129 Ordering forfeiture
3
(1) The Military Court must order the forfeiture of all specified
4
security provided by a particular person for an accused person's
5
bail if the Military Court is satisfied that the accused person failed
6
to appear before the Military Court in accordance with the accused
7
person's bail undertaking.
8
Note 1:
For the forfeiture of security provided by more than one person,
9
separate forfeiture orders will be required.
10
Note 2:
A forfeiture order may be appealed (see Part 6).
11
(2) However, the Military Court may decide to not make a forfeiture
12
order, or to reduce the amount of security to be forfeited, if the
13
Military Court is satisfied that:
14
(a) the accused person had a reasonable excuse for failing to
15
appear; or
16
(b) it is in the interests of justice to do so.
17
(3) In deciding whether to make a forfeiture order, the Military Court
18
must consider any objection:
19
(a) filed by a person who the Military Court is satisfied either
20
provided security for the accused person's bail or has an
21
interest in such security; and
22
(b) filed before the end of the 28th day after:
23
(i) if the person was given a notice under subsection
24
128(2)--the day on which the person was given the
25
notice; or
26
(ii) otherwise--the first day on which a notice was given to
27
a person under subsection 128(2); and
28
(c) containing the particulars prescribed by the Military Court
29
Rules.
30
(4) The Military Court may also invite the person to make
31
submissions.
32
Custody and bail Part 8
Further consequences if accused person fails to appear in accordance with bail
undertaking Division 5
Section 130
Military Court of Australia Bill 2012 No. , 2012 91
130 When forfeiture orders take effect
1
(1) A forfeiture order never takes effect if it is set aside on appeal.
2
(2) If a forfeiture order is not set aside on appeal, it takes effect:
3
(a) if a notice of appeal was not filed in relation to the order--at
4
the end of the time for filing such a notice under section 97;
5
or
6
(b) otherwise--when the appeal is finally disposed of.
7
Note:
If a forfeiture order is varied on appeal, it will take effect as varied.
8
(3) If a forfeiture order takes effect, the Registrar must give written
9
notice that it has taken effect to:
10
(a) the person who provided the security forfeited by the order;
11
and
12
(b) any other person who objected to the making of the order in
13
relation to that security.
14
131 Effect of forfeiture orders
15
Security is money held by the Military Court or property other than
16
registrable property
17
(1) If security specified in a forfeiture order is:
18
(a) money deposited with or otherwise provided to the Military
19
Court; or
20
(b) property other than:
21
(i)
money;
or
22
(ii)
registrable
property;
23
the security vests absolutely in the Commonwealth at the time the
24
order takes effect.
25
Security is money not held by the Military Court
26
(2) If security specified in a forfeiture order is an amount of money
27
that has not been deposited with or otherwise provided to the
28
Military Court, then:
29
Part 8 Custody and bail
Division 5 Further consequences if accused person fails to appear in accordance with
bail undertaking
Section 131
92 Military Court of Australia Bill 2012 No. , 2012
(a) the amount is taken to be a civil debt payable by the provider
1
of the security to the Commonwealth at the time the order
2
takes effect; and
3
(b) the Commonwealth may enforce the forfeiture order as if it
4
were an order made in civil proceedings against the provider
5
to recover a debt due by the provider; and
6
(c) the debt arising from the order is taken to be a judgement
7
debt; and
8
(d) if the undertaking under which the amount was provided as
9
security also specified property to secure payment of the
10
amount--the Commonwealth may enforce the undertaking in
11
respect of that property.
12
Security is registrable property
13
(3) If security specified in a forfeiture order is registrable property,
14
then:
15
(a) that property vests in equity in the Commonwealth but does
16
not vest in the Commonwealth at law until the applicable
17
registration requirements have been complied with; and
18
(b) the Director of Military Prosecutions may, on behalf of the
19
Commonwealth, do anything necessary or convenient to give
20
notice of, or otherwise protect, the Commonwealth's
21
equitable interest in that property; and
22
(c) the Commonwealth is entitled to be registered as the owner
23
of that property; and
24
(d) the Military Court may, by order, authorise a person to:
25
(i)
do;
or
26
(ii) authorise the doing of;
27
anything necessary or convenient to obtain the registration of
28
the Commonwealth as the owner.
29
(4) The powers of a person who is the subject of an order under
30
paragraph (3)(d) include executing any instrument required to be
31
executed by a person transferring an interest in property of that
32
kind.
33
Custody and bail Part 8
Further consequences if accused person fails to appear in accordance with bail
undertaking Division 5
Section 131
Military Court of Australia Bill 2012 No. , 2012 93
Meaning of registrable property
1
(5)
Registrable property is property, title to which is passed by
2
registration on a register kept under a provision of any law of the
3
Commonwealth or of a State or Territory.
4
5
Part 8 Custody and bail
Division 6 When bail ends
Section 132
94 Military Court of Australia Bill 2012 No. , 2012
Division 6--When bail ends
1
132 Continuing bail orders
2
(1) The Military Court may direct that a bail order continue to have
3
effect.
4
(2) Unless the Military Court orders otherwise, if:
5
(a) an accused person appears before the Military Court in
6
accordance with his or her bail undertaking; and
7
(b) the accused person's bail order would no longer have effect
8
after that appearance (otherwise than because of section 133);
9
and
10
(c) the Military Court does not make a direction under
11
subsection (1) during that appearance;
12
the Military Court is taken to have directed under subsection (1)
13
that the bail order continue to have effect until the accused
14
person's next scheduled appearance before the Military Court.
15
(3) If the Military Court gives a direction under subsection (1), then:
16
(a) the accused person's bail undertaking; and
17
(b) each third party security undertaking made in relation to the
18
accused person's bail;
19
continue to have effect, subject to any contrary intention in the
20
undertaking and to any variation ordered by the Military Court.
21
133 Bail discharged if the Military Court discharges the accused
22
A bail order ceases to have effect if the Military Court discharges
23
the accused person in relation to all the service offences for which
24
bail was granted.
25
134 Continuing security undertakings when bail ends
26
(1) This section applies if:
27
(a) security was provided for an accused person's bail; and
28
(b) the accused person's bail order is revoked under section 124
29
because of a failure by the accused person to appear before
30
Custody and bail Part 8
When bail ends Division 6
Section 135
Military Court of Australia Bill 2012 No. , 2012 95
the Military Court in accordance with the accused person's
1
bail undertaking.
2
(2) Despite the revocation:
3
(a) the accused person's bail undertaking; and
4
(b) each third party security undertaking made in relation to the
5
accused person's bail;
6
continue to have effect to the extent to which they relate to the
7
security provided for the accused person's bail.
8
Note:
Generally, the bail undertaking and any third party security
9
undertaking will automatically end at the same time as the bail order
10
ceases to have effect.
11
(3) An undertaking to provide security that continues to have effect
12
under subsection (2) ceases to have effect if:
13
(a) a forfeiture order cannot take effect in relation to the security
14
and the accused person's failure to appear; or
15
(b) the Military Court orders that the undertaking cease to have
16
effect.
17
Note 1:
Section 130 deals with when a forfeiture order takes effect.
18
Note 2:
A forfeiture order cannot be made unless an application is made
19
within 6 months of the failure (see subsection 128(4)).
20
135 Returning security when bail ends
21
If:
22
(a) a person provides security for an accused person's bail under
23
a bail undertaking or third party security undertaking; and
24
(b) the accused person's bail order ceases to have effect; and
25
(c) if section 134 applies--the undertaking to provide the
26
security ceases to have effect under subsection 134(3); and
27
(d) the Military Court holds the security solely because of the
28
undertaking;
29
the Military Court must return the security to the person.
30
Note:
The money or property will not be returned if it was forfeited under
31
Division 5 or is being held as security in relation to another bail order.
32
33
Part 8 Custody and bail
Division 7 Other matters
Section 136
96 Military Court of Australia Bill 2012 No. , 2012
Division 7--Other matters
1
136 Admissibility of certain matters
2
(1) Each of the following documents is to be received in all courts and
3
proceedings as prima facie evidence of its contents:
4
(a) a bail order;
5
(b) a bail undertaking;
6
(c) a third party security undertaking;
7
(d) a notice referred to in subparagraph 120(2)(a)(ii) (about
8
change of address) given by an accused person to the
9
Military Court.
10
(2) A copy, certified by an officer of the Military Court, of a document
11
referred to in subsection (1) is admissible in evidence in all courts
12
and proceedings without further proof or production of the original.
13
Note:
This means that a certified copy is to be received in all courts and
14
proceedings as prima facie evidence of the original's contents.
15
(3) An officer of the Military Court may issue a written certificate
16
stating that:
17
(a) a condition specified in a bail order:
18
(i) has not been varied; or
19
(ii) has been varied in a specified way; or
20
(b) a notice was given under subsection 128(2) to a specified
21
person in a specified way on a specified day; or
22
(c) the accused person did not appear in person before the
23
Military Court:
24
(i) at a specified place; or
25
(ii) on a specified day or during a specified period; or
26
(d) the accused person did not notify the Military Court of a
27
change in the accused person's residential address; or
28
(e) the accused person notified the Military Court of a change in
29
the accused person's residential address:
30
(i) to a specified address; and
31
(ii) on a specified day.
32
Custody and bail Part 8
Other matters Division 7
Section 137
Military Court of Australia Bill 2012 No. , 2012 97
(4) The certificate is to be received in all courts and proceedings as
1
prima facie evidence of the statements in the certificate.
2
(5) A document purporting to be a certificate under subsection (3) is
3
taken to be such a certificate and to have been duly given, unless
4
the contrary is established.
5
137 Indemnifying a person providing security
6
(1) A person commits an offence if:
7
(a) the person signs a bail undertaking, or a third party security
8
undertaking, to provide security as a condition of bail; and
9
(b) the person agrees to be indemnified by another person against
10
any forfeiture under this Part of that security.
11
Penalty: Imprisonment for 2 years.
12
(2) A person commits an offence if the person agrees to indemnify
13
another person against any forfeiture under this Part of security
14
provided by that other person as a condition of bail.
15
Penalty: Imprisonment for 2 years.
16
17
Part 9 Sentences and orders
Division 1 Introduction
Section 138
98 Military Court of Australia Bill 2012 No. , 2012
Part 9--Sentences and orders
1
Division 1--Introduction
2
138 Guide to this Part
3
This Part deals with sentences and other orders.
4
Division 2 deals with the sentencing principles that apply to the
5
Military Court when determining what action to take under this
6
Part in relation to a person who is convicted of a service offence.
7
Division 3 deals with the punishments that may be imposed by the
8
Military Court.
9
Division 4 deals with the suspension of punishments.
10
Division 5 deals with the remission of punishments.
11
Division 6 deals with restitution orders and reparation orders.
12
13
Sentences and orders Part 9
Sentencing principles Division 2
Section 139
Military Court of Australia Bill 2012 No. , 2012 99
Division 2--Sentencing principles
1
139 Sentencing principles
2
Section 70 (other than subsection 70(5)) of the Defence Force
3
Discipline Act 1982 applies, in relation to the conviction of a
4
person by the Military Court, as if:
5
(a) that section were included in this Part; and
6
(b) references in that section to a service tribunal were instead
7
references to the Military Court.
8
Note:
Under section 19B of the Crimes Act 1914, if the Military Court is
9
satisfied that a charge against an accused person is proved, the
10
Military Court may, in certain circumstances, dismiss the charge or
11
discharge the person without proceeding to conviction in respect of
12
the charge.
13
14
Part 9 Sentences and orders
Division 3 Punishments
Section 140
100 Military Court of Australia Bill 2012 No. , 2012
Division 3--Punishments
1
140 Kinds of punishments that may be imposed
2
Military Court may impose one or more punishments for a service
3
offence
4
(1) The Military Court may (subject to this Division) impose one or
5
more punishments on a person who is convicted by the Military
6
Court of a service offence.
7
Punishments that may be imposed on an officer of the Australian
8
Defence Force
9
(2) The punishments that may be imposed by the Military Court on an
10
officer of the Australian Defence Force who is convicted by the
11
Military Court of a service offence are, in decreasing order of
12
severity, as follows:
13
(a) imprisonment for life;
14
(b) imprisonment for a specific period;
15
(c) dismissal from the Australian Defence Force;
16
(d) reduction in rank;
17
(e) forfeiture of service for the purposes of promotion;
18
(f)
forfeiture
of
seniority;
19
(g) a fine not exceeding the amount of the officer's pay for 28
20
days.
21
Punishments that may be imposed on a member of the Australian
22
Defence Force who is not an officer
23
(3) The punishments that may be imposed by the Military Court on a
24
member of the Australian Defence Force (other than an officer)
25
who is convicted by the Military Court of a service offence are, in
26
decreasing order of severity, as follows:
27
(a) imprisonment for life;
28
(b) imprisonment for a specific period;
29
(c) dismissal from the Australian Defence Force;
30
(d) detention for a period not exceeding 2 years;
31
Sentences and orders Part 9
Punishments Division 3
Section 141
Military Court of Australia Bill 2012 No. , 2012 101
(e) reduction in rank;
1
(f)
forfeiture
of
seniority;
2
(g) a fine not exceeding the amount of the member's pay for 28
3
days.
4
Punishments that may be imposed on a person who is not a
5
member of the Australian Defence Force
6
(4) The punishments that may be imposed by the Military Court on a
7
person (other than a member of the Australian Defence Force) who
8
is convicted by the Military Court of a service offence are, in
9
decreasing order of severity, as follows:
10
(a) imprisonment for life;
11
(b) imprisonment for a specific period;
12
(c) a fine not exceeding 15 penalty units.
13
Military Court not to impose punishment that is more severe than
14
maximum punishment
15
(5) Nothing in this section allows the Military Court to impose, on a
16
person who is convicted by the Military Court of a service offence:
17
(a) a punishment of a kind that is more severe than the most
18
severe kind of punishment that could (apart from this section)
19
be imposed on the person in respect of the service offence; or
20
(b) a punishment that is:
21
(i) of a kind that could (apart from this section) be imposed
22
on the person in respect of the service offence; and
23
(ii) more severe than the maximum punishment of that kind
24
that could (apart from this section) be imposed on the
25
person in respect of the service offence.
26
Note:
The kinds of punishment, and their order of severity, are as set out in
27
subsections (2), (3) and (4).
28
141 Restrictions on power to impose punishments
29
Imprisonment and detention
30
(1) The Military Court must not impose a punishment of imprisonment
31
on a member of the Australian Defence Force who is convicted by
32
Part 9 Sentences and orders
Division 3 Punishments
Section 141
102 Military Court of Australia Bill 2012 No. , 2012
the Military Court of a service offence unless the Military Court
1
also imposes (in respect of that conviction of the member) the
2
punishment of dismissal from the Australian Defence Force.
3
(2) The Military Court must not impose a punishment of detention on
4
a non-commissioned officer of the Australian Defence Force who
5
is convicted by the Military Court of a service offence unless the
6
Military Court also imposes (in respect of that conviction of the
7
non-commissioned officer) the punishment of reduction in rank to
8
a rank below non-commissioned rank.
9
(3) The Military Court must not impose a sentence of imprisonment on
10
a person who is convicted by the Military Court of a service
11
offence if the person was under 18 at the time of the conviction.
12
(4) The Military Court must not impose a punishment of detention on
13
a member of the Australian Defence Force who is convicted by the
14
Military Court of a service offence if the Military Court imposes
15
(in respect of that conviction or another conviction of the member)
16
the punishment of dismissal from the Australian Defence Force.
17
Reduction in rank
18
(5) If the Military Court imposes the punishment of reduction of rank
19
on a member of the Australian Defence Force, the Military Court
20
must specify a date from which the member's seniority in that rank
21
is to be calculated. The date must not be later than the date on
22
which the punishment is imposed.
23
Forfeiture of service for purposes of promotion
24
(6) If the Military Court imposes the punishment of forfeiture of
25
service for the purposes of promotion on an officer of the
26
Australian Defence Force, the Military Court must specify a date
27
from which the officer's service in the officer's rank is to be
28
calculated for the purposes of promotion. The date must not be
29
later than the date the punishment is imposed.
30
Forfeiture of seniority
31
(7) If the Military Court imposes the punishment of forfeiture of
32
seniority on a member of the Australian Defence Force, the
33
Sentences and orders Part 9
Punishments Division 3
Section 142
Military Court of Australia Bill 2012 No. , 2012 103
Military Court must specify a date from which the member's
1
seniority in the member's rank is to be calculated. The date must
2
not be later than the date on which the punishment is imposed.
3
142 Imposition of fines
4
(1) If the Military Court imposes a punishment of a fine, the Military
5
Court must, when imposing the punishment, specify the amount of
6
money that is the amount of the fine.
7
(2) If the Military Court convicts a person of 2 or more service
8
offences and imposes 2 or more punishments, being or including
9
fines, the sum of the amounts of those fines must not exceed the
10
amount of the most severe fine that the Military Court could
11
impose on the person for any one of the service offences of which
12
the person has been so convicted.
13
(3) The Military Court may order that a fine must be paid either in one
14
sum or by instalments.
15
(4) A fine is payable to the Commonwealth.
16
143 Concurrent or cumulative punishments
17
Imprisonment for life and imprisonment for specific period to be
18
concurrent
19
(1) If the Military Court imposes a punishment of imprisonment for a
20
specific period for a service offence and also a punishment of
21
imprisonment for life for another service offence, the punishments
22
are to be concurrent.
23
Provisions relating to 2 or more punishments of imprisonment, or
24
of detention, for a specific period
25
(2) Subsections (3) to (6) only apply in relation to punishments of the
26
following kinds:
27
(a) a punishment of imprisonment for a specific period;
28
(b) a punishment of detention for a specific period.
29
(3) Subject to subsections (4) and (5), if:
30
Part 9 Sentences and orders
Division 3 Punishments
Section 143
104 Military Court of Australia Bill 2012 No. , 2012
(a) the Military Court convicts a person of 2 or more service
1
offences and imposes on the person 2 or more punishments
2
that are of the same kind; or
3
(b) the Military Court convicts of a service offence a person who
4
is already subject to a punishment imposed by the Military
5
Court (not being a punishment that is wholly suspended) and,
6
on that conviction, imposes another punishment of the same
7
kind on the person; or
8
(c) the Military Court convicts of a service offence a person who
9
is already subject to a punishment imposed by the Military
10
Court (being a punishment that is suspended in whole or in
11
part) and, on that conviction, revokes that suspension and
12
also imposes another punishment of the same kind on the
13
person; or
14
(d) the Military Court convicts a person of a service offence that
15
was committed during the period to which a good behaviour
16
undertaking relates (being an undertaking that was given to
17
the Military Court) and, on or after that conviction:
18
(i) imposes a punishment on the person for the service
19
offence to which the conviction relates; and
20
(ii) imposes another punishment of the same kind on the
21
person for the service offence to which the good
22
behaviour undertaking relates;
23
the Military Court may order that all or any of the punishments so
24
imposed (including, if applicable, the punishment referred to in
25
paragraph (c) the suspension of which is revoked) are to be
26
cumulative.
27
(4) If, as mentioned in paragraph (3)(c), the Military Court:
28
(a) revokes a suspension of a punishment imposed on a person;
29
and
30
(b) also imposes another punishment on the person that is of the
31
same kind as the suspended punishment;
32
the Military Court must not order that the punishments are to be
33
cumulative if the effect would be to subject the person to
34
punishment for a total period that exceeds the maximum period of
35
a punishment of that kind that the Military Court could impose on
36
the person for the service offence, or any one of the service
37
Sentences and orders Part 9
Punishments Division 3
Section 144
Military Court of Australia Bill 2012 No. , 2012 105
offences, of which the person has been convicted by the Military
1
Court.
2
(5)
If:
3
(a) a person is convicted by the Military Court of a service
4
offence committed by the person while serving a punishment
5
of detention; and
6
(b) the Military Court imposes a punishment of detention on the
7
person for the service offence;
8
the punishment referred to in paragraph (b) is to commence at the
9
end of the period of detention that the person was serving when the
10
service offence was committed.
11
(6) If paragraph (3)(a), (b), (c) or (d) applies in relation to 2 or more
12
punishments imposed on a person by the Military Court then,
13
subject to any order of the Military Court under subsection (3) and
14
to subsections (4) and (5), the punishments are to be concurrent.
15
Note:
Section 19 of the Crimes Act 1914 applies (in addition to this section)
16
to punishments of imprisonment imposed by the Military Court.
17
144 Taking other offences into consideration
18
(1) If a person who is convicted of a service offence by the Military
19
Court requests the Military Court to take into consideration, for the
20
purposes of this Part, any other service offence:
21
(a) that is similar to the service offence of which the person has
22
been convicted; and
23
(b) that the Military Court has jurisdiction to try; and
24
(c) that the person admits having committed;
25
the Military Court, with the consent of the Director of Military
26
Prosecutions, may take the other service offence into consideration.
27
(2) If the Military Court has taken a service offence into consideration
28
under subsection (1):
29
(a) the Military Court must not impose a separate punishment, or
30
make a separate good behaviour order, in respect of that
31
service offence; and
32
(b) a service tribunal must not, under the Defence Force
33
Discipline Act 1982, impose a separate punishment, or make
34
Part 9 Sentences and orders
Division 3 Punishments
Section 145
106 Military Court of Australia Bill 2012 No. , 2012
a separate order under subsection 75(1) of that Act, in respect
1
of that service offence.
2
Note:
Paragraph (2)(a) does not prevent the Military Court from making a
3
restitution order or a reparation order as permitted by subsection
4
151(3) or 152(3).
5
(3) If the Military Court does not take a service offence into
6
consideration under subsection (1) because of:
7
(a) the withholding of consent by the Director of Military
8
Prosecutions; or
9
(b) the rejection of the person's request;
10
an admission under and for the purposes of paragraph (1)(c) in
11
relation to that service offence is not admissible as evidence in:
12
(c) any other proceeding before the Military Court, or before a
13
service tribunal under the Defence Force Discipline Act
14
1982, in respect of that service offence; or
15
(d) any proceeding in any civil court in respect of a civil court
16
offence that is substantially the same offence as that service
17
offence.
18
145 Commencement of sentences and non-parole periods
19
(1) Subject to subsections (2) and (3), the law of the Jervis Bay
20
Territory relating to the commencement of sentences and of
21
non-parole periods applies to a person who is sentenced by the
22
Military Court for a service offence in the same way as it applies to
23
a person who is sentenced for an offence against a law of that
24
Territory.
25
(2) If the law of the Jervis Bay Territory has the effect that a sentence
26
imposed on a person for an offence against the law of that
27
Territory, or a non-parole period fixed in respect of that sentence:
28
(a) may be reduced by the period that the person has been in
29
custody for the offence; or
30
(b) is to commence on the day on which the person was taken
31
into custody for the offence;
32
the law applies in the same way to a sentence imposed by the
33
Military Court on a person for a service offence, or to a non-parole
34
period fixed in respect of such a sentence.
35
Sentences and orders Part 9
Punishments Division 3
Section 145
Military Court of Australia Bill 2012 No. , 2012 107
(3) If the law of the Jervis Bay Territory does not have the effect
1
mentioned in subsection (2), the Military Court, if it imposes a
2
sentence on a person for a service offence, or fixes a non-parole
3
period in respect of such a sentence, must take into account any
4
period that the person has spent in custody in relation to the service
5
offence.
6
7
Part 9 Sentences and orders
Division 4 Suspension of punishments
Section 146
108 Military Court of Australia Bill 2012 No. , 2012
Division 4--Suspension of punishments
1
146 Suspension of detention
2
(1) Subject to this section, if the Military Court imposes a punishment
3
of detention, the Military Court may make an order suspending the
4
whole or a part of that punishment.
5
(2) If the Military Court imposes on a person 2 or more punishments
6
of detention in respect of 2 or more service offences, the Military
7
Court must not make an order suspending the whole or a part of
8
any of those punishments unless it also makes an order suspending
9
the whole or a part of the other punishment or the other
10
punishments.
11
(3) If the Military Court makes an order suspending the whole or a part
12
of a punishment of detention, the punishment, or such part of the
13
punishment as is suspended, does not begin, and must not be put
14
into execution, while the suspension remains in force.
15
147 Suspension of fines
16
(1) If the Military Court imposes a punishment of a fine on a member
17
of the Australian Defence Force, the Military Court may make an
18
order suspending the whole or a part of that punishment.
19
(2) If the Military Court imposes a punishment of a fine of an amount
20
not less than 1 penalty unit on a person who is not a member of the
21
Australian Defence Force, the Military Court may make an order
22
suspending the whole or a part of that punishment.
23
(3) If the Military Court makes an order suspending a fine in whole or
24
in part, the fine, or such part of the fine as is suspended, does not
25
take effect while the suspension remains in force.
26
148 Revocation of suspension of punishment
27
If a person who is convicted of a service offence by the Military
28
Court is already subject to a punishment that has been suspended
29
under section 146 or 147, the Military Court may revoke the
30
Sentences and orders Part 9
Suspension of punishments Division 4
Section 148
Military Court of Australia Bill 2012 No. , 2012 109
suspension and, in that event, the punishment that was suspended
1
takes effect as if it had been imposed at the time of the revocation.
2
3
Part 9 Sentences and orders
Division 5 Remission of punishments
Section 149
110 Military Court of Australia Bill 2012 No. , 2012
Division 5--Remission of punishments
1
149 Remission of suspended punishment
2
(1)
If:
3
(a) a punishment imposed by the Military Court on a member of
4
the Australian Defence Force has been suspended in whole or
5
in part under section 146 or 147 and that suspension has not
6
been revoked under section 148; and
7
(b) the member ceases to be a member of the Australian Defence
8
Force;
9
that punishment is remitted.
10
(2) If a punishment of detention has been suspended in whole or in
11
part under section 146 and that suspension has not been revoked
12
under section 148, that punishment, or such part of that punishment
13
as has been suspended, is remitted at the expiration of:
14
(a) a period of 12 months; or
15
(b) a period equal to the period for which the punishment of
16
detention was imposed;
17
whichever is the greater period, commencing on the date of the
18
order under section 146 suspending that punishment or that part of
19
that punishment.
20
(3) If a punishment of a fine has been suspended in whole or in part
21
under section 147 and that suspension has not been revoked under
22
section 148, that punishment, or so much of that punishment as is
23
suspended, is remitted at the expiration of a period of 12 months
24
commencing on the date of the order under section 147 suspending
25
that punishment.
26
150 Remission of punishment of detention on imprisonment
27
(1) If the Military Court imposes a punishment of imprisonment on a
28
person who is convicted by the Military Court of a service offence
29
and who is already subject to a punishment of detention, that
30
punishment of detention, or such part of that punishment of
31
detention as has not been served, is remitted.
32
(2) Subsection (1) applies:
33
Sentences and orders Part 9
Remission of punishments Division 5
Section 150
Military Court of Australia Bill 2012 No. , 2012 111
(a) whether the punishment of detention was imposed by the
1
Military Court, or by a service tribunal under the Defence
2
Force Discipline Act 1982; and
3
(b) whether or not that punishment, or a part of that punishment,
4
has been suspended.
5
6
Part 9 Sentences and orders
Division 6 Restitution orders and reparation orders
Section 151
112 Military Court of Australia Bill 2012 No. , 2012
Division 6--Restitution orders and reparation orders
1
151 Restitution orders
2
(1) If a person is convicted by the Military Court of a service offence
3
that involved the unlawful obtaining of property by the person, the
4
Military Court (instead of, or in addition to, imposing a punishment
5
or making a good behaviour order) may:
6
(a) if the whole or any part of the property so unlawfully
7
obtained is in the custody or control of the Director of
8
Military Prosecutions--order the property to be repaid or
9
restored to the person appearing to the Military Court to be
10
its owner; or
11
(b) if any property (other than money) appearing to the Military
12
Court to have been obtained by the conversion or exchange
13
of any of the property so unlawfully obtained is in the
14
custody or control of the Director of Military Prosecutions--
15
order the property to be delivered to the person appearing to
16
the Military Court to be the owner of the property so
17
unlawfully obtained.
18
(2)
If:
19
(a) a person is convicted by the Military Court of a service
20
offence that involved the unlawful obtaining of property by
21
the person; and
22
(b) it appears to the Military Court that:
23
(i) some or all of the property so unlawfully obtained was
24
given by the person to another person in exchange for
25
other property; and
26
(ii) the other person did not know, at the time of the
27
exchange, that the property received by the other person
28
in the exchange had been unlawfully obtained; and
29
(c) the whole or a part of the property given by the other person
30
in the exchange is in the custody or control of the Director of
31
Military Prosecutions;
32
the Military Court may order that, on the restitution by the other
33
person of the property received by the other person in the exchange
34
to the person appearing to the Military Court to be its owner, the
35
Sentences and orders Part 9
Restitution orders and reparation orders Division 6
Section 152
Military Court of Australia Bill 2012 No. , 2012 113
property in the custody or control of the Director of Military
1
Prosecutions be restored to the other person.
2
(3) This section applies in relation to a service offence that has been
3
taken into consideration by the Military Court under section 144 in
4
determining the appropriate punishment for a service offence of
5
which a person has been convicted by the Military Court as if the
6
Military Court had convicted the person of the service offence so
7
taken into consideration.
8
(4)
If:
9
(a) an order is made under this section in respect of a service
10
offence that has been taken into consideration as mentioned
11
in subsection (3); and
12
(b) the conviction, or each conviction, as the case may be, in
13
respect of which the service offence was taken into
14
consideration is set aside;
15
the order lapses, by force of this subsection, when the conviction or
16
convictions are so set aside.
17
(5) Nothing in this section affects any right that a person may have to
18
recover any property delivered or paid in accordance with an order
19
under this section from the person to whom the property has been
20
so delivered or paid.
21
152 Reparation orders
22
(1) If a person is convicted by the Military Court of a service offence,
23
the Military Court may (instead of, or in addition to, imposing a
24
punishment or making a good behaviour order) order the person to
25
pay such amount as it thinks just by way of reparation to a person
26
who has sustained loss or damage through or by reason of that
27
service offence.
28
(2) In making an order under this section, the Military Court may order
29
payment to be made either in one sum or by instalments.
30
(3) This section applies in relation to a service offence that has been
31
taken into consideration by the Military Court under section 144 in
32
determining the appropriate punishment for a service offence of
33
which a person has been convicted by the Military Court as if the
34
Part 9 Sentences and orders
Division 6 Restitution orders and reparation orders
Section 152
114 Military Court of Australia Bill 2012 No. , 2012
Military Court had convicted the person of the service offence so
1
taken into consideration.
2
(4)
If:
3
(a) an order is made under this section in respect of a service
4
offence that has been taken into consideration as mentioned
5
in subsection (3); and
6
(b) the conviction, or each conviction, as the case may be, in
7
respect of which the service offence was taken into
8
consideration is set aside;
9
the order lapses, by force of this subsection, when the conviction or
10
convictions are so set aside.
11
(5) Nothing in this section affects any right or remedy that a person
12
may have, apart from this section, in respect of any loss or damage
13
occasioned by a service offence.
14
15
Persons found unfit to be tried and persons acquitted because of mental impairment
Part 10
Section 153
Military Court of Australia Bill 2012 No. , 2012 115
Part 10--Persons found unfit to be tried and
1
persons acquitted because of mental
2
impairment
3
4
153 Persons found unfit to be tried
5
(1) This section applies if, in a trial of a charge of a service offence,
6
the Military Court finds the accused person unfit to be tried.
7
(2) The Military Court may:
8
(a) by order, dismiss the charge and discharge the accused
9
person (the discharged person):
10
(i) into the care of a responsible person, unconditionally, or
11
subject to conditions, for a specified period that does not
12
exceed 3 years; or
13
(ii) on condition that the discharged person attend on
14
another person, or at a place, specified by the Military
15
Court for assessment of the discharged person's mental
16
condition, or for treatment, or both, but so that the total
17
period for which the discharged person is required to
18
attend on that other person or at that place does not
19
exceed 3 years; or
20
(iii)
unconditionally;
or
21
(b) make any other order the Military Court considers necessary,
22
having regard to:
23
(i) the best interests of the accused person; and
24
(ii) the safety of any other person to whom the order relates;
25
and
26
(iii) the safety of the community generally.
27
(3) An order under paragraph (2)(b) must specify the period, not
28
exceeding 3 years, during which it is to have effect.
29
(4) If the Military Court makes an order under subsection (2) in
30
relation to the accused person and the service offence, the Military
31
Court must not make an order under section 19B of the Crimes Act
32
1914 (which deals with discharge without conviction) in relation to
33
the accused person and the service offence.
34
Part 10 Persons found unfit to be tried and persons acquitted because of mental
impairment
Section 154
116 Military Court of Australia Bill 2012 No. , 2012
(5) The Military Court may vary or set aside an order made by the
1
Military Court under this section.
2
(6) An application to the Military Court to vary or set aside an order
3
under subsection (5) may be made by:
4
(a) the Director of Military Prosecutions; or
5
(b) the accused person to whom the order relates.
6
154 Persons acquitted because of mental impairment at time of
7
conduct constituting service offence
8
(1) This section applies if, in a proceeding in respect of a charge of a
9
service offence, the Military Court acquits the accused person (the
10
acquitted person) of the service offence because the person was
11
suffering from a mental impairment at the time of carrying out the
12
conduct constituting the service offence.
13
(2) The Military Court may:
14
(a) by order, release the acquitted person:
15
(i) into the care of a responsible person, unconditionally, or
16
subject to conditions, for a specified period that does not
17
exceed 3 years; or
18
(ii) on condition that the acquitted person attend on another
19
person, or at a place, specified by the Military Court for
20
assessment of the acquitted person's mental impairment,
21
or for treatment, or both, but so that the total period for
22
which the acquitted person is required to attend on that
23
other person or at that place does not exceed 3 years; or
24
(iii)
unconditionally;
or
25
(b) make any other order the Military Court considers necessary,
26
having regard to:
27
(i) the best interests of the acquitted person; and
28
(ii) the safety of any other person to whom the order relates;
29
and
30
(iii) the safety of the community generally.
31
(3) An order under paragraph (2)(b) must specify the period, not
32
exceeding 3 years, during which it is to have effect.
33
Persons found unfit to be tried and persons acquitted because of mental impairment
Part 10
Section 154
Military Court of Australia Bill 2012 No. , 2012 117
(4) The Military Court may vary or set aside an order made by the
1
Military Court under this section.
2
(5) An application to the Military Court to vary or set aside an order
3
under subsection (4) may be made by:
4
(a) the Director of Military Prosecutions; or
5
(b) the acquitted person.
6
7
Part 11 Practice and procedure
Division 1 Introduction
Section 155
118 Military Court of Australia Bill 2012 No. , 2012
Part 11--Practice and procedure
1
Division 1--Introduction
2
155 Guide to this Part
3
This Part deals with the practice and procedure of the Military
4
Court.
5
Division 2 deals with matters relating to practice and procedure
6
generally, and records of proceedings.
7
Division 3 deals with matters relating to the conduct of
8
proceedings.
9
Division 4 deals with matters relating to evidence and witnesses.
10
Division 5 provides for the use of video links or audio links in
11
proceedings.
12
Division 6 deals with matters relating to orders and judgements of
13
the Military Court.
14
Division 7 provides for the Military Court to make Rules dealing
15
with the practice and procedure to be followed in the Military
16
Court.
17
18
Practice and procedure Part 11
General Division 2
Section 156
Military Court of Australia Bill 2012 No. , 2012 119
Division 2--General
1
156 Practice and procedure to be in accordance with Military Court
2
Rules
3
(1) Subject to any provision made by or under this or any other Act
4
with respect to practice and procedure, the practice and procedure
5
of the Military Court is to be in accordance with the Military Court
6
Rules.
7
(2) In so far as the Military Court Rules are insufficient, the Rules of
8
the High Court (as in force for the time being) apply, with any
9
necessary modifications, so far as they are capable of application
10
and subject to any directions of the Military Court, to the practice
11
and procedure of the Military Court.
12
(3) In this section, practice and procedure includes all matters in
13
relation to which Military Court Rules may be made.
14
157 Record of proceedings
15
(1) The Military Court must:
16
(a) keep a record of its proceedings; and
17
(b) include in that record the particulars prescribed by the
18
regulations.
19
(2) The Registrar must give a copy of the record of proceedings to:
20
(a) the Chief of the Defence Force; and
21
(b) the Director of Military Prosecutions.
22
Order that record not be published
23
(3) The Military Court may order that the whole or a specified part of
24
a record of proceedings not be published if the Military Court
25
considers publication would be:
26
(a) contrary to the interests of justice; or
27
(b) prejudicial to national security.
28
Part 11 Practice and procedure
Division 2 General
Section 158
120 Military Court of Australia Bill 2012 No. , 2012
158 Access to record of proceedings
1
Application by party to proceedings
2
(1) A person who is or was a party to proceedings in the Military
3
Court (other than the Director of Military Prosecutions) may apply
4
to the Registrar for a copy of the record of the proceedings.
5
Application by representative of deceased person
6
(2) If the person (the deceased person) has died, either of the
7
following may apply to the Registrar for a copy of the record of the
8
proceedings:
9
(a) the deceased person's legal personal representative;
10
(b) a person approved by the Registrar as the deceased person's
11
representative.
12
(3) If the deceased person has a legal personal representative, the
13
Registrar must not approve a person under paragraph (2)(b) unless
14
the Registrar is satisfied that the deceased person's legal personal
15
representative has declined to make an application under
16
subsection (2).
17
Record of proceedings to be given
18
(4) If a person applies for a copy of a record of proceedings under
19
subsection (1) or (2), the Registrar must give a copy of the record
20
to the person.
21
(5) Nothing in this section authorises or requires a copy of a record of
22
proceedings, or of part of such a record, to be given if the
23
publication of the record or the part of the record is prohibited
24
under subsection 157(3), 167(1) or 168(1).
25
Proceedings and provision of records not affected
26
(6) Nothing in this section affects:
27
(a) the power of a court to make an order for the discovery or
28
disclosure of documents; or
29
(b) the giving of evidence in, or the production of documents to,
30
a court; or
31
Practice and procedure Part 11
General Division 2
Section 158
Military Court of Australia Bill 2012 No. , 2012 121
(c) the provision of copies of records of proceedings to any
1
person who is entitled to receive them other than under this
2
section.
3
4
Part 11 Practice and procedure
Division 3 Conduct of proceedings
Section 159
122 Military Court of Australia Bill 2012 No. , 2012
Division 3--Conduct of proceedings
1
159 Accused person to be present at hearing
2
(1) Subject to subsection (2) and Division 5, a hearing before the
3
Military Court in respect of a charge against an accused person
4
must be held in the presence of the accused person.
5
(2) If the Military Court considers that, because of the disorderly
6
behaviour of the accused person, it is impossible to continue the
7
hearing in his or her presence, the Military Court may order that
8
the accused person be removed from the place of hearing and be
9
held in custody elsewhere.
10
160 Change of venue
11
The Military Court may, at any stage of a proceeding, direct that
12
the proceeding, or a part of the proceeding, be conducted or
13
continued at a place (including a place outside Australia) specified
14
in the order, subject to such conditions (if any) as the Military
15
Court imposes.
16
161 Formal defects not to invalidate
17
(1) A proceeding in the Military Court is not invalidated by a formal
18
defect or an irregularity, unless the Military Court is of the opinion
19
that:
20
(a) substantial injustice has been caused by the defect or
21
irregularity; and
22
(b) the injustice cannot be remedied by an order of the Military
23
Court.
24
(2) The Military Court may, on such conditions (if any) as the Military
25
Court thinks fit, make an order declaring that the proceeding is not
26
invalid:
27
(a) by reason of a defect that the Military Court considers to be
28
formal; or
29
(b) by reason of an irregularity.
30
31
Practice and procedure Part 11
Evidence Division 4
Section 162
Military Court of Australia Bill 2012 No. , 2012 123
Division 4--Evidence
1
162 Application of Evidence (Miscellaneous Provisions) Act 1991 of
2
the Australian Capital Territory
3
In addition to the Evidence Act 1995, Parts 2, 4 and 4A of the
4
Evidence (Miscellaneous Provisions) Act 1991 of the Australian
5
Capital Territory apply in relation to proceedings in the Military
6
Court as if the Military Court were a court exercising jurisdiction
7
in, or in relation to, the Jervis Bay Territory.
8
163 Evidence to be given orally
9
Evidence in proceedings before the Military Court must be given
10
orally unless:
11
(a) the evidence is given in another form:
12
(i) agreed to between the parties; and
13
(ii) to which the Military Court does not object; or
14
(b) the evidence is given in accordance with:
15
(i) this Act or any other Act; or
16
(ii) the law in force in the Jervis Bay Territory.
17
Note:
Division 5 deals with giving evidence by video link, audio link or
18
other appropriate means.
19
164 Orders and commissions for examination of witnesses
20
(1) The Military Court may, for the purposes of any proceeding before
21
it:
22
(a) order the examination of a person on oath or affirmation
23
before the Military Court, a Judge, a Federal Magistrate, an
24
officer of the Military Court or other person (other than a
25
member of the Australian Defence Force), at any place
26
(whether within or outside Australia); or
27
(b) order that a commission issue to a person (other than a
28
member of the Australian Defence Force), either within or
29
outside Australia, authorising him or her to take evidence
30
from a person on oath or affirmation.
31
(2) The Military Court may also:
32
Part 11 Practice and procedure
Division 4 Evidence
Section 165
124 Military Court of Australia Bill 2012 No. , 2012
(a) by the same or a subsequent order, give any necessary
1
directions concerning the time, place and manner of the
2
examination; and
3
(b) empower any party to the proceeding to give, in evidence in
4
the proceeding, the evidence taken under paragraph (1)(b) on
5
such terms (if any) as the Military Court directs.
6
165 Oaths and affirmations
7
(1) A Judge or a Federal Magistrate may require and administer all
8
necessary oaths and affirmations.
9
(2) A Judge or a Federal Magistrate may cause to be administered all
10
necessary oaths and affirmations for the purposes of the Military
11
Court. For this purpose, the Military Court may, either orally or in
12
writing, authorise any person (whether within or outside Australia)
13
to administer oaths and affirmations.
14
(3) The Registrar may, by written instrument, authorise:
15
(a) a Deputy Registrar; or
16
(b) a member of the staff of the Military Court;
17
to administer oaths and affirmations for the purposes of the
18
Military Court.
19
Note:
See also paragraph 30(1)(d).
20
166 Swearing of affidavits etc.
21
(1) An affidavit to be used in a proceeding in the Military Court may
22
be sworn or affirmed in Australia before:
23
(a) a Judge or a Federal Magistrate; or
24
(b) a Registrar or a Deputy Registrar; or
25
(c) a justice of the peace; or
26
(d) a commissioner for declarations; or
27
(e) a person who is authorised to administer oaths and
28
affirmations for the purposes of:
29
(i) the Military Court; or
30
(ii) another federal court; or
31
(iii) the Supreme Court of a State or Territory.
32
Practice and procedure Part 11
Evidence Division 4
Section 167
Military Court of Australia Bill 2012 No. , 2012 125
(2) An affidavit to be used in a proceeding in the Military Court may
1
be sworn or affirmed at a place outside Australia before:
2
(a) a Judge or a Federal Magistrate in that place; or
3
(b) a Commissioner of the High Court authorised to administer
4
oaths and affirmations in that place for the purposes of the
5
High Court; or
6
(c) an Australian Diplomatic Officer or an Australian Consular
7
Officer, as defined by the Consular Fees Act 1955, exercising
8
his or her function in that place; or
9
(d) a person who is a competent officer, for the purposes of
10
regulations in force under the Defence Act 1903, for taking
11
affidavits of members of the Australian Defence Force in that
12
place; or
13
(e) an employee of the Commonwealth who is:
14
(i) authorised under paragraph 3(c) of the Consular Fees
15
Act 1955; and
16
(ii) exercising his or her function in that place; or
17
(f) an employee of the Australian Trade Commission who is:
18
(i) authorised under paragraph 3(d) of the Consular Fees
19
Act 1955; and
20
(ii) exercising his or her function in that place; or
21
(g) a notary public exercising his or her function in that place; or
22
(h) a person qualified to administer an oath or affirmation in that
23
place, being a person certified to be so qualified by:
24
(i) a person mentioned in paragraph (c), (e), (f) or (g); or
25
(ii) the superior court of that place; or
26
(i) a person prescribed by the regulations.
27
(3) An affidavit sworn or affirmed outside Australia otherwise than
28
before a person referred to in subsection (2) may be used in a
29
proceeding in the Military Court in circumstances specified by the
30
Military Court Rules.
31
167 Protecting witnesses etc.
32
(1) The Military Court may make such orders as it thinks appropriate
33
in the circumstances to protect:
34
(a) witnesses called or proposed to be called; or
35
Part 11 Practice and procedure
Division 4 Evidence
Section 168
126 Military Court of Australia Bill 2012 No. , 2012
(b) information, documents and other things admitted or
1
proposed to be admitted;
2
in a proceeding.
3
Note:
The Military Court may also restrict or prohibit the publication of
4
information about witnesses and evidence (see section 168).
5
(2) Without limiting subsection (1), the Military Court may do either
6
or both of the following under that subsection:
7
(a) order the exclusion of the public, or of persons specified by
8
the Military Court, from a sitting of the Military Court;
9
(b) direct how a witness may give evidence.
10
168 Prohibition or restriction on publication of evidence etc.
11
(1) The Military Court may, at any time during or after the hearing of a
12
proceeding, make such order forbidding or restricting:
13
(a) the publication of particular evidence; or
14
(b) the publication of the name of a party or witness; or
15
(c) the publication of information that is likely to enable the
16
identification of a party or witness; or
17
(d) access to documents obtained through discovery or
18
disclosure; or
19
(e) access to documents produced under a subpoena or
20
summons;
21
as appears to the Military Court to be necessary to prevent
22
prejudice to the administration of justice or national security.
23
(2) This section does not limit section 167.
24
169 Offences by witness
25
(1) A person commits an offence if:
26
(a) the person has been duly served with a subpoena or summons
27
to appear as a witness before the Military Court; and
28
(b)
the
person:
29
(i) fails to attend as required by the subpoena or summons;
30
or
31
Practice and procedure Part 11
Evidence Division 4
Section 169
Military Court of Australia Bill 2012 No. , 2012 127
(ii) fails to appear and report himself or herself from day to
1
day unless excused, or released from further attendance,
2
by the Military Court.
3
Penalty: Imprisonment for 6 months.
4
Note:
Part 2.3 of the Criminal Code sets out defences that may apply to this
5
offence.
6
(2) A person commits an offence if, while appearing as a witness
7
before the Military Court, the person:
8
(a) refuses or fails to be sworn or to make an affirmation; or
9
(b) refuses or fails to answer a question that he or she is required
10
by the Military Court to answer; or
11
(c) refuses or fails to produce a book or document that he or she
12
is required by the Military Court, or by a subpoena or
13
summons issued from the Military Court, to produce.
14
Penalty: Imprisonment for 6 months.
15
Note:
Part 2.3 of the Criminal Code sets out defences that may apply to this
16
offence.
17
(3) Nothing in this section limits the power of the Military Court to
18
punish persons for contempt of the Military Court, but a person
19
must not be punished under this section, and for contempt of the
20
Military Court, in respect of the same act or omission.
21
Note:
Section 61 deals with the Military Court's power to punish persons for
22
contempt of the Military Court.
23
24
Part 11 Practice and procedure
Division 5 Use of video links or audio links
Section 170
128 Military Court of Australia Bill 2012 No. , 2012
Division 5--Use of video links or audio links
1
170 Testimony by video link or audio link
2
(1) The Military Court may, for the purposes of any proceeding, direct
3
or allow testimony to be given by video link, audio link or other
4
appropriate means.
5
Note:
See also section 172.
6
(2) The testimony must be given on oath or affirmation unless:
7
(a) the person giving the testimony is in a foreign country; and
8
(b) the law in force in that country:
9
(i) does not permit the person to give testimony on oath or
10
affirmation for the purposes of the proceeding; or
11
(ii) would make it inconvenient for the person to give
12
testimony on oath or affirmation for the purposes of the
13
proceeding; and
14
(c) the Military Court is satisfied that it is appropriate for the
15
testimony to be given otherwise than on oath or affirmation.
16
(3) If the testimony is given otherwise than on oath or affirmation, the
17
Military Court must give the testimony such weight as the Military
18
Court thinks fit in the circumstances.
19
(4) The power conferred on the Military Court by subsection (1) may
20
be exercised:
21
(a) on the application of a party to the proceeding; or
22
(b) on the Military Court's own initiative.
23
(5) This section applies whether the person giving testimony is in or
24
outside Australia, but does not apply if the person giving testimony
25
is in New Zealand.
26
Note: See
the
Evidence and Procedure (New Zealand) Act 1994.
27
171 Appearances or submissions of persons by video link or audio
28
link
29
(1) The Military Court may, for the purposes of any proceeding, direct
30
or allow a person:
31
Practice and procedure Part 11
Use of video links or audio links Division 5
Section 172
Military Court of Australia Bill 2012 No. , 2012 129
(a) to appear before the Military Court; or
1
(b) to make a submission to the Military Court;
2
by way of video link, audio link or other appropriate means.
3
Note:
See also section 172.
4
(2) The power conferred on the Military Court by subsection (1) may
5
be exercised:
6
(a) on the application of a party to the proceeding; or
7
(b) on the Military Court's own initiative.
8
(3) This section applies whether the person appearing or making the
9
submission is in or outside Australia, but does not apply if the
10
person appearing or making the submission is in New Zealand.
11
Note: See
the
Evidence and Procedure (New Zealand) Act 1994.
12
172 Conditions for use of video links and audio links
13
Video link
14
(1) The Military Court must not exercise the power conferred by
15
subsection 170(1) or 171(1) in relation to a video link unless the
16
Military Court is satisfied that the following conditions are met in
17
relation to the video link:
18
(a) the courtroom or other place where the Military Court is
19
sitting is equipped with facilities (for example, television
20
monitors) that enable all eligible persons present in that
21
courtroom or place to see and hear the person (the remote
22
person) who is:
23
(i) giving the testimony; or
24
(ii)
appearing;
or
25
(iii) making the submission;
26
by way of the video link;
27
(b) the place at which the remote person is located is equipped
28
with facilities (for example, television monitors) that enable
29
all eligible persons present in that place to see and hear each
30
eligible person who is present in the courtroom or other place
31
where the Military Court is sitting;
32
Part 11 Practice and procedure
Division 5 Use of video links or audio links
Section 172
130 Military Court of Australia Bill 2012 No. , 2012
(c) such other conditions (if any) as are prescribed by the
1
Military Court Rules in relation to the video link;
2
(d) such other conditions (if any) as are imposed by the Military
3
Court.
4
(2) The conditions that may be prescribed by the Military Court Rules
5
in accordance with paragraph (1)(c) include conditions relating to:
6
(a) the form of the video link; and
7
(b) the equipment, or class of equipment, used to establish the
8
link; and
9
(c) the layout of cameras; and
10
(d) the standard of transmission; and
11
(e) the speed of transmission; and
12
(f) the quality of communication.
13
Audio link
14
(3) The Military Court must not exercise the power conferred by
15
subsection 170(1) or 171(1) in relation to an audio link unless the
16
Military Court is satisfied that the following conditions are met in
17
relation to the audio link:
18
(a) the courtroom or other place where the Military Court is
19
sitting is equipped with facilities (for example, loudspeakers)
20
that enable all eligible persons present in that courtroom or
21
place to hear the person (the remote person) who is:
22
(i) giving the testimony; or
23
(ii)
appearing;
or
24
(iii) making the submission;
25
by way of the audio link;
26
(b) the place at which the remote person is located is equipped
27
with facilities (for example, loudspeakers) that enable all
28
eligible persons present in that place to hear each eligible
29
person who is present in the courtroom or other place where
30
the Military Court is sitting;
31
(c) such other conditions (if any) as are prescribed by the
32
Military Court Rules in relation to the audio link;
33
(d) such other conditions (if any) as are imposed by the Military
34
Court.
35
Practice and procedure Part 11
Use of video links or audio links Division 5
Section 173
Military Court of Australia Bill 2012 No. , 2012 131
(4) The conditions that may be prescribed by the Military Court Rules
1
in accordance with paragraph (3)(c) include conditions relating to:
2
(a) the form of the audio link; and
3
(b) the equipment, or class of equipment, used to establish the
4
audio link; and
5
(c) the standard of transmission; and
6
(d) the speed of transmission; and
7
(e) the quality of communication.
8
Other appropriate means
9
(5) The Military Court must not exercise the power conferred by
10
subsection 170(1) or 171(1) in relation to an appropriate means
11
other than video link or audio link unless the Military Court is
12
satisfied that the following conditions are met in relation to that
13
means:
14
(a) the conditions (if any) as are prescribed by the Military Court
15
Rules in relation to that means;
16
(b) such other conditions (if any) as are imposed by the Military
17
Court.
18
Eligible persons
19
(6) For the purposes of the application of this section to a particular
20
proceeding, eligible persons are such persons as the Military Court
21
considers should be treated as eligible persons for the purposes of
22
that proceeding.
23
173 Putting documents to a person by video link or audio link
24
If, in the course of an examination or appearance of a person by
25
video link, audio link or other appropriate means in accordance
26
with this Division, it is necessary to put a document to the person,
27
the Military Court may direct or allow the document to be put to
28
the person:
29
(a) if the document is physically present in the courtroom or
30
other place where the Military Court is sitting:
31
(i) by causing a copy of the document to be transmitted to
32
the place where the person is located; and
33
Part 11 Practice and procedure
Division 5 Use of video links or audio links
Section 174
132 Military Court of Australia Bill 2012 No. , 2012
(ii) by causing the transmitted copy to be put to the person;
1
or
2
(b) if the document is physically present in the place where the
3
person is located:
4
(i) by causing the document to be put to the person; and
5
(ii) by causing a copy of the document to be transmitted to
6
the courtroom or other place where the Military Court is
7
sitting.
8
174 Administration of oaths and affirmations
9
An oath to be sworn, or an affirmation to be made, by a person (the
10
remote person) who is to give testimony by video link, audio link
11
or other appropriate means in accordance with this Division may
12
be administered:
13
(a) by means of the video link, audio link or other appropriate
14
means in a way that, as nearly as practicable, corresponds to
15
the way in which the oath or affirmation would be
16
administered if the remote person were to give testimony in
17
the courtroom or other place where the Military Court is
18
sitting; or
19
(b) if the Military Court allows another person who is present at
20
the place where the remote person is located to administer the
21
oath or affirmation--by that other person.
22
175 New Zealand matters
23
This Division does not affect the operation of the Evidence and
24
Procedure (New Zealand) Act 1994.
25
26
Practice and procedure Part 11
Orders and judgements Division 6
Section 176
Military Court of Australia Bill 2012 No. , 2012 133
Division 6--Orders and judgements
1
176 Orders
2
(1) An order of the Military Court must:
3
(a) be in writing; or
4
(b) be reduced to writing as soon as practicable.
5
(2) An order of the Military Court may be authenticated in a manner
6
prescribed by the Military Court Rules.
7
177 Reserved judgements
8
(1)
If:
9
(a) the Military Court reserves judgement in a proceeding; and
10
(b) the Judge or Federal Magistrate who heard the proceeding
11
prepares his or her judgement but is not available to publish
12
the judgement;
13
the judgement may be made public by another Judge or Federal
14
Magistrate who is authorised to do so by the Judge or Federal
15
Magistrate whose judgement it is.
16
(2) A judgement that is made public in accordance with subsection (1)
17
has the same effect that it would have if it were made public by the
18
Judge or Federal Magistrate whose judgement it is.
19
(3) A reference to a Judge in paragraph (1)(b) includes a reference to a
20
Judge hearing a proceeding as a member of a Full Court.
21
178 Recovery of amounts due under order of Military Court
22
(1) An amount that is due and payable under an order made by the
23
Military Court against a person may be recovered as follows:
24
(a) the amount may be recovered by deduction from any pay,
25
wages or salary payable to the person by the Commonwealth
26
and an amount equal to the amount so recovered may be paid
27
by the Commonwealth to the person in whose favour the
28
order was made; or
29
(b) without prejudice to recovery in accordance with
30
paragraph (a), the amount may be recovered by action in a
31
Part 11 Practice and procedure
Division 6 Orders and judgements
Section 178
134 Military Court of Australia Bill 2012 No. , 2012
court of competent jurisdiction as a debt due to the person in
1
whose favour the order was made.
2
(2) If an amount is directed to be paid by instalments and default is
3
made in the payment of any instalment, all instalments then
4
remaining unpaid become due and payable.
5
(3) Nothing in this section affects any right or remedy that a person
6
may have, apart from this section, in respect of any loss or damage
7
occasioned by a service offence.
8
9
Practice and procedure Part 11
Military Court Rules Division 7
Section 179
Military Court of Australia Bill 2012 No. , 2012 135
Division 7--Military Court Rules
1
179 Military Court Rules
2
(1) The Judges and Federal Magistrates of the Military Court may, in
3
accordance with section 180, make Rules of Court (Military Court
4
Rules), not inconsistent with this Act:
5
(a) making provision for or in relation to the practice and
6
procedure to be followed in the Military Court (including the
7
practice and procedure to be followed in registries of the
8
Military Court); and
9
(b) making provision for or in relation to all matters and things
10
incidental to any such practice or procedure, or necessary or
11
convenient to be prescribed for the conduct of any business
12
of the Military Court; and
13
(c) prescribing matters required or permitted by:
14
(i) any other provision of this Act; or
15
(ii) any other law of the Commonwealth;
16
to be prescribed by the Military Court Rules.
17
(2) The Military Court Rules have effect subject to any provision made
18
by another Act, or by rules or regulations under another Act, with
19
respect to the practice and procedure in particular matters.
20
(3)
The
Legislative Instruments Act 2003 (other than sections 5, 6, 7,
21
10, 11 and 16 of that Act) applies in relation to the Military Court
22
Rules:
23
(a) as if a reference to a legislative instrument were a reference
24
to a rule of court; and
25
(b) as if a reference to a rule-maker were a reference to the Chief
26
Justice acting on behalf of the Judges and Federal
27
Magistrates of the Military Court; and
28
(c) subject to such further modifications or adaptations as are
29
provided for in regulations made under subsection 182(3) of
30
this Act.
31
(4) Despite the fact that section 16 of the Legislative Instruments Act
32
2003 does not apply in relation to the Military Court Rules, the
33
Office of Parliamentary Counsel (as established by subsection 2(1)
34
Part 11 Practice and procedure
Division 7 Military Court Rules
Section 180
136 Military Court of Australia Bill 2012 No. , 2012
of the Parliamentary Counsel Act 1970) may provide assistance in
1
the drafting of any of those Rules if the Chief Justice so desires.
2
180 Requirements relating to the making of Military Court Rules
3
(1) Military Court Rules may relate to:
4
(a) both Divisions of the Military Court; or
5
(b) the Appellate and Superior Division only; or
6
(c) the General Division only.
7
(2) Rules covered by paragraph (1)(a) must be made by:
8
(a) a majority of Judges; and
9
(b) a majority of Federal Magistrates.
10
(3) Rules covered by paragraph (1)(b) must be made by a majority of
11
Judges.
12
(4) Rules covered by paragraph (1)(c) must be made by a majority of
13
Federal Magistrates.
14
(5) Rules covered by paragraph (1)(b) or (c) must not be inconsistent
15
with Rules covered by paragraph (1)(a).
16
17
Miscellaneous Part 12
Section 181
Military Court of Australia Bill 2012 No. , 2012 137
Part 12--Miscellaneous
1
2
181 Certain provisions of the Crimes Act 1914 do not apply or apply
3
with modifications
4
(1) The following provisions of the Crimes Act 1914 do not apply in
5
relation to service offences:
6
(a) sections 15AA, 15A and 15B;
7
(b)
section
16BA;
8
(c)
section
16E;
9
(d) sections 20AB and 20AC;
10
(e) sections 20BQ and 20BR;
11
(f)
section
21B.
12
(2) A reference in the Crimes Act 1914 to a prison, or to imprisonment,
13
does not include a reference to a detention centre, or to detention in
14
a detention centre.
15
(3) Sections 19AH, 19AS, 19AV, 20AA and 21E of the Crimes Act
16
1914, so far as they allow applications or appeals to be made in
17
relation to service offences, apply as if references in those sections
18
to the Director of Public Prosecutions were instead references to
19
the Director of Military Prosecutions.
20
182 Regulations
21
(1) The Governor-General may make regulations prescribing matters:
22
(a) required or permitted by this Act to be prescribed; or
23
(b) necessary or convenient to be prescribed for carrying out or
24
giving effect to this Act.
25
(2) The regulations may prescribe penalties, not exceeding 10 penalty
26
units, for offences against the regulations.
27
(3) The regulations may make provision modifying or adapting
28
provisions of the Legislative Instruments Act 2003 (other than the
29
provisions of Part 5 of that Act or any other provisions whose
30
modifications or adaptation would affect the operation of that Part)
31
in their application to the Military Court.
32
Schedule 1 Service offences to be dealt with by the Appellate and Superior Division
138 Military Court of Australia Bill 2012 No. , 2012
Schedule 1--Service offences to be dealt with
1
by the Appellate and Superior
2
Division
3
Note:
See subsection 65(5).
4
5
6
Item Provision
of
the
Defence Force
Discipline Act 1982
Subject matter
1 Subsection
15(1)
Abandoning or surrendering a post
etc.
2 Subsection
15A(1)
Causing
the capture or destruction of
a service ship etc.
3
Subsection 15B(1)
Aiding the enemy while captured
4
Subsection 15C(1)
Providing the enemy with material
assistance
5
Subsection 15D(1)
Harbouring enemies
6
Subsection 15E(1)
Offences relating to signals and
messages
7
Subsection 15F(1)
Failing to carry out orders
8 Subsection
15G(1)
Imperilling
the success of operations
9
Subsection 16(1)
Communicating with the enemy
10
Subsection 16A(1)
Failing to report information
received from the enemy
11
Subsection 16B(1)
Offence committed with intent to
assist the enemy
12 Subsection
20(1)
Mutiny
13 Subsection
20(2)
Mutiny
in connection with service
against enemy
14
Subsection 21(2)
Failing to suppress mutiny in
connection with service against
enemy
15 Subsection
22(1)
Desertion
16 Subsection
22(2)
Desertion
17 Subsection
36(1)
Dangerous
conduct
18
Subsection 59(1)
Selling etc. prohibited drugs outside
Australia
Service offences to be dealt with by the Appellate and Superior Division Schedule 1
Military Court of Australia Bill 2012 No. , 2012 139
Item Provision
of
the
Defence Force
Discipline Act 1982
Subject matter
19 Subsection
61(1)
if:
(a) the Territory offence concerned
is an offence referred to in
subparagraph 63(1)(a)(i), (ia),
(ii) or (iii) or paragraph 63(1)(b)
of the Defence Force Discipline
Act 1982; or
(b) the fixed or maximum
punishment for the Territory
offence concerned is
imprisonment for 10 years or
more
Engaging in conduct in the Jervis
Bay Territory that is a Territory
offence
20 Subsection
61(2)
if:
(a) the Territory offence concerned
is an offence referred to in
subparagraph 63(1)(a)(i), (ia),
(ii) or (iii) or paragraph 63(1)(b)
of the Defence Force Discipline
Act 1982; or
(b) the fixed or maximum
punishment for the Territory
offence concerned is
imprisonment for 10 years or
more
Engaging in conduct in a public
place outside the Jervis Bay
Territory that is a Territory offence
21 Subsection
61(3)
if:
(a) the Territory offence concerned
is an offence referred to in
subparagraph 63(1)(a)(i), (ia),
(ii) or (iii) or paragraph 63(1)(b)
of the Defence Force Discipline
Act 1982; or
(b) the fixed or maximum
punishment for the Territory
offence concerned is
imprisonment for 10 years or
more
Engaging in conduct outside the
Jervis Bay Territory that is a
Territory offence
22 Subsection
62(1)
if:
(a) the relevant service offence
referred to in subsection 62(1) is
based on a Territory offence
Commanding or ordering service
offence to be committed
Schedule 1 Service offences to be dealt with by the Appellate and Superior Division
140 Military Court of Australia Bill 2012 No. , 2012
Item Provision
of
the
Defence Force
Discipline Act 1982
Subject matter
referred to in subparagraph
63(1)(a)(i), (ia), (ii) or (iii) or
paragraph 63(1)(b) of the
Defence Force Discipline Act
1982; or
(b) the fixed or maximum
punishment for the relevant
service offence referred to in
subsection 62(1) is imprisonment
for 10 years or more
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